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Key decisions on mergers and acquisitions
 
 
Community Investment Ventures Holdings (Pty) Ltd (CIVH) v Vumatel (Pty) Ltd ( (Vumatel)
                                                                   

The Commission has recommended to the Tribunal that the proposed merger, whereby CIVH intends to acquire Vumatel, be approved, with conditions.
 
CIVH is a holding firm. DFA is a provider of dark fibre network in both metropolitan and long-haul telecommunications markets. DFA operates as an open access fibre optic company. This implies that it leases its backbone fibre and secure transmission infrastructure while also maintaining, building, installing, managing and financing these dark fibre networks.
 
Vumatel is an open access fibre provider at the last mile level which provides fibre to the home (FTTH) services to Internet Service Provider (ISPs). Vumatel installs FTTH in a suburb and also installs a fibre spur up to the home wall. After the fibre has been installed, Vumatel leases its infrastructure to ISPs, such as RASWEB who then provide broad retail services to end-consumers.
 
The Commission recommended that the proposed transaction be approved subject to conditions. The conditions seek to address any anticompetitive effects that might arise as a result of the merged entity’s high market shares in the affected markets. Thus, the merging parties will continue operating in an open access model and the conditions also restrict the merging parties from engaging in any form of preferential treatment in both the FTTH level and back haul level and/or Dark Fibre Level. The conditions also require the merging parties to continue supplying Dartcom’s products on non-discriminatory terms to all purchasers including competitors of Vumatel and DFA.
 
Glencore South Africa Oil Investment (Pty) Ltd (Glencore SA) v Chevron South Africa (Pty) Ltd. (CSA)
 

The Commission has recommended to the Tribunal that the proposed merger, whereby Glencore SA intends to acquire CSA, be approved, with conditions.
 
Glencore SA is controlled by Glencore plc (Glencore). Glencore controls a number of firms globally and in South Africa. Glencore trades in crude oil and refined oil products. The activities of Glencore in South Africa include the following: (i) The supply of crude oil to South African customers; (ii) The supply of petroleum products (petrol and diesel) to South African customers, being refineries as well as traders which supply petroleum products to local refineries; (iii) The consumption, in mining operations, of petroleum products (petrol and diesel) and lubricants; and (iv) The purchase of petroleum products (petrol and diesel) from refineries for export only.
 
CSA is a refiner and a supplier of petroleum products in South Africa. CSA operates a crude oil refinery in Cape Town where it refines crude oil to produce various petroleum products for sale throughout South Africa, including to the retail and non-retail sectors.  CSA’s crude oil refinery produces petrol (gasoline), diesel, jet fuel, liquefied petroleum gas (LPG), bitumen and bunker fuel. CSA operates a Caltex Branded Marketer model where Branded Marketers procure petroleum products from CSA. There are 10 Branded Marketers in South Africa and one in Botswana. The Branded Marketers are independent wholesalers (distributors) that operate as contracted agents of CSA and distribute wholesale quantities of fuel to areas that are assigned to them by CSA.
 
The Commission found that the proposed transaction raises public interest concerns. The Commission recommended that the proposed transaction be approved subject to conditions. With respect to employment, CSA willnot retrench any employees as a result of the merger.. Further, Glencore will ensure that CSA ’s head office remains in South Africa, to coordinate and oversee CSA’s midstream and downstream operations. Glencore will ensure that CSA is operated substantially on a stand-alone basis and CSA’s decisions will be taken in South Africa and, where practicable, be implemented utilising local skills and expertise.
 
In addition, Glencore will ensure that CSA continues to meet any ongoing contractual obligations which it has towards retired employees of CSA. With respect to the Branded Marketers, Glencore has undertaken to ensure that CSA will not change any of the existing contracts with Branded Marketers to the extent that it would be on less favourable terms to the Branded Marketers.
 
ACT Healthcare Assets (Pty) Ltd (AHA) v Activo Health (Pty) Ltd (Activo)
 
The Commission has approved, with conditions, the proposed merger, whereby AHA intends to acquire Activo.
 
AHA together with its parent company, Afrocentric, are investment and asset holding companies which provide specialised services to the public and private healthcare sectors. AHA is active at the downstream levels of the pharmaceutical value chain which includes wholesale services via Curasana Wholesaler (Pty) Ltd (Curasana), retail pharmacy via Pharmacy Direct (Pty) Ltd (Pharmacy Direct) and various medical scheme administration services via Medscheme Holdings (Pty) Ltd (Medscheme), managed care and funding.
 
Activo is an upstream pharmaceutical company which is involved in importing, marketing, and distributing pharmaceutical and related products to downstream firms. Activo does not manufacture any products itself. It only deals in generic products that are produced by other third parties and imported by Activo for sale into South Africa. Anti-Retrovirals (ARVs) form the largest part of Activo’s business followed by other General and prescription pharmaceuticals (excluding ARVs). Over-the-Counter (OTC) medication forms a smaller part of Activo’s business.
 
The Commission found concerns with the supply of Atazor 300mg (an ARV) where Activo supplies this product to Curasana and other Wholesalers. Wholesalers, in turn, supply these products to retail pharmacies including Pharmacy Direct. As alluded to above, the Commission found that ARVs form the largest part of Activo’s business. Of particular relevance is that the Commission found that Activo is the only supplier of Atazanavir 300mg which is the active ingredient in Atazor 300mg in South Africa. As a result of the 100% market share for the supply of Atazanavir 300mg, the Commission concluded that the merging parties are likely to have the ability to foreclose rivals (wholesalers and in turn retail pharmacies) from access to Atazor 300mg.
 
The Commission found that post-merger, if Activo supplies Atazor 300mg exclusively through Curasana, it is likely to save significantly on the logistics fee that it incurs when supplying to other wholesalers who compete with Curasana. The merging parties can internalise the logistic fee cost and therefore it is unlikely that the merging parties will have an incentive to supply rival wholesalers. The Commission concluded that the merging parties will have the ability and incentives to foreclose rival wholesalers from access to Atazor 300mg post-merger.
 
The Commission further concludes that the merging parties are likely to grow sales through their own retail channel post-merger. The Commission found that given the lack of alternatives in the market for Atazor 300mg in South Africa, it is likely that the merging parties will in future charge customers the highest dispensing fee allowed for Atazor 300mg. As a result, customers are likely to lose the benefit of reduced dispensing fees as a result of competition between rival pharmacies that currently exist. Therefore, a successful input foreclosure strategy in this case where the merged entity has the ability and incentives to foreclose downstream wholesalers and retailers is likely to result in higher prices in the long term for such an important medicine, if downstream rivals’ competitive ability is weakened by foreclosure strategies.
 
In order to address the competition concerns arising from the merger, the Commission accordingly approved the merger subject to the following conditions:
(a)        Activo shall continue to supply competing Wholesalers that require access to Activo’s Atazor 300mg.
(b)        Activo shall ensure that the supply of Activo’s Atazor 300mg shall be on commercially reasonable and non-discriminatory terms.
(c)        Activo shall ensure that its logistic fee for the supply of Atazor 300mg to competing Wholesalers is on commercially reasonable and non-discriminatory terms.
In summary, Activo is required to supply Atazor 300mg to competing Wholesalers on terms and conditions which are not less favourable (in respect of pricing, payment terms, delivery time and security of delivery) than that Activo supplies to Curasana and/or any other entity directly or indirectly controlled by Afrocentric. Further, the merging parties are required to publish the Conditions on Activo’s website in order to promote awareness of the Conditions amongst competing Wholesalers.
 
The Commission further found that the proposed transaction does not raise any public interest concerns.
 
CommScope Holding Company Inc (CommScope) v ARRIS International Plc (ARRIS)
 
The Commission has approved, without conditions, the proposed merger, whereby CommScope intends to acquire ARRIS.
 
CommScope operates through two business segments namely; Connectivity Solutions and Mobility Solutions. Connectivity Solutions is CommScope offering of fibre optic, coaxial and copper cable and connectivity solutions for use in data centres and business enterprise, telecoms, cable television and residential broadband networks. Mobility Solution refers to CommScope’s offering of Radio Frequency (RF) infrastructure solutions for wireless operators and original equipment manufacturers (OEMs).
 
ARRIS is active in South Africa in the sale of Customer Premises Equipment (CPE). ARRIS sells principally service provider video and broadband CPE installed at subscribers homes to receive data and video segments.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.
 
Number Two Piggeries (Pty) Ltd (No.2 Piggeries) v The Vallon Trust (Vallon Trust)
 
The Commission has approved, the proposed merger, without conditions, whereby No.2 Piggeries intends to acquire Vallon Trust.
 
Both No.2 Piggeries and the Vallon Trust are active in pig farming, dairy farming and abattoir businesses.
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets.
 
The Commission further found that the proposed transaction does not raise any public interest concerns.
 
VKB Landbou (Pty) Ltd (VKB Landbou) v Multi Green (Pty) Ltd (Multi Green)
 
The Commission has recommended to the Tribunal that the proposed merger, whereby VKB Landbou intends to acquire Multi Green, be approved, without conditions.
VKB Landbou is a holding company and is involved in a variety of agricultural activities in South Africa through its subsidiaries. VKB Landbou forms part of the VKB Group, a modern agricultural enterprise that has operated for almost a century. The VKB Group is focused on progressive managing solutions for the changing and various needs of agricultural producers and related stakeholders.
 
Multi Green specialises in precision blending (mixing) of granular and liquid fertilizers. Multi Green is situated in Villiers Free State and its fertilizers are sold to farmers throughout the Free State, Mpumalanga, Gauteng, North West and the Northern Cape.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest and employment concerns.
 

Hirt and Carter Group (Pty) Ltd (Hirt and Carter) v First Impression Labels (Pty) Ltd (First Impression)
 
The Commission has recommended to the Tribunal that the proposed merger, whereby Hirt and Carter intends to acquire First Impression, be approved, without conditions.
 
Hirt and Carter controls a number of firms in South Africa. SKU (Pty) Ltd. Of note is that Tiso Blackstar SE also ultimately controls Uniprint Labels, a division within the Tiso Black Star Group (Pty) Ltd. Hirt and Carter is a holding company that does not operate directly in any market
 
Uniprint and First Impression are active in the manufacture of labels for use by retailers and brand owners of consumer goods, automotive and industrial markets. As a result, the activities of Uniprint and First Impression overlaps with respect to the following products: (i) Self-adhesive labels, (ii) Shrink sleeves (iii) Film wraparound labels and (iv) Polyroll labels.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any market relevant market. The Commission further found that the proposed transaction does not raise any public interest concerns.
 

ETG Agro Products (Pty) Ltd (ETGAP) v Rand Agri Proprietary Limited (Formerly Maize and More (Pty) Ltd) (Rand Agri)
 
The Commission has approved, the proposed merger, without conditions, whereby ETGAP acquired 50.1% in Rand Agri. This merger was implemented in 2013 without being notified to the Commission.
 
The activities of the merging parties relevant for the purposes of the proposed transaction are physical trading of the following grain commodities in South Africa: (i) white maize, (ii) yellow maize, (iii) soybeans, (iv) sunflower seeds, and (v) wheat.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.
 
Media24 Boeke (Pty) Ltd (Media24 Boeke)v Nasou Via Afrika (Pty) Ltd (NVA)
 
The Commission has recommended to the Tribunal that the proposed merger, whereby Media24 Boeke intends to acquire NVA, be approved, without conditions.
 
Media24 Boeke forms part of the Naspers Group which provides internet platforms with a primary focus on commerce, communities, content and games; pay-television and the provision of related technologies and print media which includes publishing, printing, distribution of magazines, newspapers and books.
 
NVA, through its two divisions, Via Afrika and Van Schaik Publishers, publishes and supplies a comprehensive range of educational books in all South African official languages and for all subjects. These educational books are published for use in basic and tertiary education and are supplied throughout South Africa.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise public interest and employment concerns.
 
Dynasty Acquisition Co. Inc (Dynasty) v StandardAero Holdings Corp. (StandardAero)
 

The Commission has recommended to the Tribunal that the proposed merger, whereby Dynasty intends to acquire StandardAero, be approved, without conditions.
 
Dynasty is controlled by Carlyle Partners VII Cayman Holdings, L.P (CP VII), a fund managed by affiliates of the Carlyle Group (Carlyle). Dynasty is a special purpose vehicle and therefore doesn’t have any business activities. Carlyle is involved in the provision of asset management services and manages funds that invest globally across four investment disciplines, namely: (i) Corporate Private Equity; (ii) Real Assets; (iii) Global Credit; and (iv) Solutions. Relevant to the proposed transaction is the activities of Sequa Corporation (Sequa) through its Chromalloy division. Chromalloy is a provider of standalone aviation engine repairs in South Africa. It conducts specific engine parts repairs for airline companies and independent firms that repairs and service airlines.
 
StandardAero’s primary business in South Africa is the provision of full engine Maintenance, Repair and Overhaul (MRO) services. StandardAero offers these services Original Equipment Manufacturers (OEMs), business aviation, commercial aviation, military and industrial power owner or operators across Africa, including South Africa. StandardAero’s business of providing MRO services is divided into four main business units which are: Business Aviation; Airline and Fleets; Military and Energy; and Components, Helicopter and Accessories. In addition, StandardAero also sells on an occasional basis second-hand engine spare parts in South Africa that it has removed from unserviceable engines and repaired.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise public interest and employment concerns.
 
Lereko Metier Sustainable Capital Fund Trust (LMSC Trust) and H1 Holdings (Pty) Ltd (H1 Holdings) v Tecroveer Holdings (Pty) Ltd; Tecroveer (Pty) Ltd (Tecroveer Holdings) and Becon Watertech (Pty) Ltd (Becon)
 
The Commission has approved, the proposed merger, without conditions, whereby LMSC Trust and H1 Holdings intends to acquire Tecroveer Holdings and Becon.
 
LMSC activities are limited to investments in the energy sector. H1 holdings activities include power generation through hydro, wind, cogeneration and solar photovoltaic assets.
 
Tecroveer Holdings provides water management solutions to private and public customers (e.g. municipalities) across South Africa. These solutions include building and refurbishment of sewerage treatment plants and industrial wastewater treatment. Tecroveer manufactures and supplies mechanical and electrical water treatment components. Becon manufactures pre-assembled water and waste water treatment plants that can be deployed in static and mobile application.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise any employment of other public interest concerns.
 
GHB Holdings (Pty) Ltd (GHB Holdings ) v First Food Brands (Pty) Ltd (FFB)
 
The Commission has approved, the proposed merger, without conditions, whereby GHB Holdings intends to acquire FFB.
GHB Holdings operates pig farming businesses through its subsidiaries. In addition, GHB Holdings sells live pigs to abattoirs that slaughter, debone and process the meat into processed meat products.
 
FFB is a food production company whose main asset is Eskort. Eskort is a South African manufacturer and marketer of various processed pork products. These processed pork products include bacon, viennas, russians, polony, sausages, marinated ribs and ham. FFB products are sold throughout the country and operates seven butcheries located in the Gauteng, Kwazulu-Natal and Mpumalanga Provinces. In addition, FFB products are sold to retailers such as Shoprite or Checkers, Pick n Pay, Massmart and Spar.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise any employment or other public interest concerns.
 
BIP Mercury I L.P (BIP Mercury) v FRS Capital Corp. (FRS Capital)
 
The Commission has approved, without conditions, the proposed merger whereby BIP Mercury intends to acquire FRS Capital.
 
BIP Mercury is involved in the provision of asset management and financial advisory services. In South Africa, BIP Mercury offers the following services or products: information technology, production and sale of flexible insulation foams, water treatment and chemical distribution, amongst others.
 
FRS Capital’s activities in South Africa include the provision of various terminal operation services that facilitate the movement of cargo, such as warehousing, bulk containerization and stevedoring.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise any employment or any public interest concerns.
 
Pacific Paramount (Pty) Ltd (Pacific Paramount Properties) v Acucap Investment (Pty) Ltd (Acucap Investments) in respect of the property letting enterprise known as Sunward Park Shopping Centre (Target Property)
 
The Commission has approved, without conditions, the proposed merger whereby Pacific Paramount Properties intends to acquire the Target Property from Acucap Investments.
 
Pacific Paramount Group owns a number of properties (i.e. retail, office, residential and industrial) in the North West, Western Cape and Gauteng.
 
The Target Property is a neighbourhood centre situated at the corner of Kingfisher Avenue and Duiker Road, Sunward Park, Boksburg and comprises approximately 11 763m2 of rentable retail space.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise any public interest and employment concerns.
 
HoldCo (Holdco) v Axios Bidco Ltd (Axios)
 
The Commission has approved, without conditions, the proposed merger whereby Holdco intends to acquire Axios.
 
Holdco is a special purpose vehicle. It does not have any business operations. Axios, through the manages critical incidents in the car and home insurance industry on behalf of insurers, brokers and fleet managers.
 
The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in the relevant markets. The Commission further found that the proposed transaction does not raise employment and public interest concerns.

Issued by The Competition Commission of South Africa