Yes, the relevant legislation is the Competition Act, 89 of 1998, as amended (“Act”) and the rules promulgated in terms of the Act (“Rules”). Amendments in terms of the Competition Amendment Act, 2018 (“Amendment Act”) came into force in July 2019 and February 2020. These amendments are the most significant to date and focus to a large degree on 'public interest' considerations.

The Act provides for three agencies to implement and enforce competition law in South Africa. The Competition Commission (“Commission”) is the investigative body with respect to unlawful conduct,  and its role includes investigating mergers (and, in some cases, making decisions on mergers); investigating and referring complaints of restrictive trade practices; and conducting market inquiries. The Competition Tribunal (“Tribunal”) is the adjudicative body of first instance under the Act. It also has the power to hear appeals from, and applications for review of, certain Commission decisions. Decisions of the Tribunal may be appealed or taken on review to the Competition Appeal Court (“CAC”). Parties can also appeal decisions, on constitutional grounds, to the Constitutional Court, the apex court of the land.

No, there is no relevant supranational agency.

Yes, the merger filing requirements are set out in the Act and the Rules. Compulsory notification is only required where a transaction meets the definition of a merger, and if so, also meets the financial thresholds for mandatory notification.

A transaction must be notified to the Commission if:

• It constitutes a 'merger' as defined in the Act;
• Meets the prescribed financial thresholds in terms of the Rules; and
• Constitutes economic activity within, or having an effect within, South Africa.

In terms of the Act, a merger occurs when one or more firms, directly or indirectly, acquire or establish direct or indirect control over the whole or part of the business of another firm, whether such control is achieved as a result of the purchase or lease of the shares, interest or assets of the other firm, by amalgamation or any other means.

The Act contemplates a number of ways in which a merger may be carried out, including through a purchase or lease of shares, interests or assets, or through an amalgamation or other combination with another firm. The concept of control is not defined, but the Act does set out a list of instances in which control is achieved, albeit this is not a closed list. In this regard, the Act declares that a person controls another firm if that person:

• Beneficially owns more than half of the issued share capital of the firm;
• Is entitled to the majority of votes that may be cast at a general meeting of the firm, or has the ability to control the voting of the majority of those votes, either directly or through an entity controlled by that person;
• Is able to sanction or veto the appointment of the directors of the firm;
• Is a holding company, and the firm is a subsidiary of that company as contemplated in the Act;
• In the case of a firm that is a trust, has the ability to control the majority of the votes of the trustees, to appoint the majority of the trustees or to change the majority of the beneficiaries of the trust;
• In the case of a close corporation, owns the majority of members’ interests or controls directly or has the right to control the majority of members’ votes in the close corporation; or
• Has the ability to materially influence the policy of the firm in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in the points listed above.

In ordinary circumstances, an internal restructuring would not constitute a merger (assuming that it does not result in the acquisition of control by one firm over another firm’s business) and a filing can be excluded on this basis. Similarly, changes to the incorporation documents of a company will not constitute a merger, unless the change results in a firm acquiring control as contemplated in the Act.

As set out above, according to the Act, a merger occurs when one or more firms, directly or indirectly, acquire or establish control over the whole or part of the business of another firm. “Control” includes scenarios where a person has the ability to materially influence the policy of the firm in a manner comparable to a person who, in ordinary commercial practice, can exercise control. This provision includes within its ambit minority interests, where those minority interests confer de facto “control”. The assessment of whether a minority shareholding exercises “control” for purposes of the definition of a merger is fact-specific.The definition of “control” in the Act, therefore, contemplates control by way of minority protections (over and above standard protections), which afford a minority shareholder the ability to influence the strategic direction of the firm.

The Act applies to all economic activity within, or having an effect within, South Africa and in this way, foreign-to-foreign mergers having an effect in South Africa may be caught. In relation to mergers, the thresholds are calculated with reference to South Africa, in particular, the assets in South Africa and the revenue generated by the merger parties which is attributable to South Africa. By implication, foreign-to-foreign mergers have to be notified if the financial thresholds relevant to South Africa are met. The competition authorities have considered foreign-to-foreign mergers on this basis since the Act came into effect in 1999.

In terms of the Act, compulsory notification is only applicable to intermediate and large mergers (although the Commission can require the notification of small mergers in certain circumstances).

In terms of the Notice on the Determination of Merger Thresholds and Method of Calculation, intermediate-sized mergers are those that meet the following thresholds:

• the combined annual turnover in, into or from South Africa of the acquiring firm and the target firm is valued at ZAR600 million or more; or
• the combined value of the assets in South Africa of the acquiring firm and the target firm is valued at ZAR600 million; or
• the annual turnover in, into or from South Africa of the acquiring firm plus the assets in South Africa of the target firm is valued at ZAR600 million; or
• the annual turnover in, into or from South Africa of the target firm plus the assets of the acquiring firm is valued at ZAR600 million.

In addition, the annual turnover in, into or from South Africa or the asset value of the target firm in South Africa must be ZAR100 million or more.

A large merger is one where one of the four calculations referred to above results in a figure that is equal to or exceeds ZAR6.6 billion and the annual turnover or assets of the target firm equals or exceeds ZAR190 million. The values of the turnover and assets are calculated with reference to the previous financial year of the parties. The thresholds apply to all mergers, regardless of the sector or industry in which the merger takes place. For the purpose of threshold calculations, the acquiring firm is broadly construed as the entire group of which the acquirer forms a part. The target firm is construed narrowly, referring to the actual business or assets being acquired. Both turnover and asset values should be based on the company's annual audited accounts for the preceding financial year. Otherwise, they should be calculated according to the IFRS accounting standard.

Even if the merger falls below the asset and/or turnover thresholds (i.e., the merger constitutes a small merger), the Commission may require the parties to notify if it is of the view that the transaction may substantially prevent or restrict competition or have an adverse effect on public interest. This power may only be exercised within 6 months of implementation of the transaction.

The merger filing regime is voluntary for small mergers (unless otherwise requested by the Commission) and mandatory for intermediate and large mergers.

The Act does not provide deadlines for notification. However, a merger that meets the financial thresholds for mandatory notification must be notified and approved prior to being implemented.

No, there is no automatic waiting period in South Africa.

A merger filing is comprised of three prescribed forms:

• Form CC4(1) – Merger Notice – filed by either party to the transaction (typically the acquirer);
• Form CC4(2)s – Statements of Merger Information – filed by each of the parties to the transaction; and
• Form CC7s – Confidentiality Claim – filed by each of the parties to the transaction.

These forms allow the merger parties to claim specific information as confidential. In addition, a joint competitive report by the parties is generally submitted as part of the filing.  In complex merger cases, parties often file expert economic reports to bolster the merger assessment. 

The prescribed filing forms request information about the corporate structure and control of the merging parties; the value of the parties’ turnovers and assets in South Africa during their preceding financial years; details of the transaction notified; detailed information about the interchangeable products and/or services which the parties provide in South Africa; detailed information about products and/or services which the parties provide to each other; and contact details of the parties’ top five customers and competitors. The competitive report generally includes information about the impact of the transaction on the relevant market/s in which the parties operate in South Africa, estimated market shares of the merger parties and their competitors; information about barriers to entry and import competition, as well as the countervailing power of customers and competitors. Parties are also required to address the effects of the proposed merger on the public interest, including the effect of the merger on employment; a particular industrial sector or region; the ability of small and medium businesses or firms controlled by historically disadvantaged persons to effectively enter into, participate in or expand within the market; the ability of national industries to compete in international markets; and the promotion of a greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market.

The details of trade unions or employee representatives representing a substantial number of employees of the merging parties must be included in the merger filing (in the Merger Notice, Form CC4(1)) and a copy of the Merger Notice must be served on the trade unions or employee representatives.  

In relation to employment, the merging parties are required to make specific statements regarding the likely impact of the merger on levels of employment in South Africa. The Commission is concerned with potential merger-related job losses.

Supporting documentation that is required to be submitted by each of the parties to the merger consists of the following: the merger agreement; board minutes in which the proposed transaction is discussed; any reports and presentations (prepared in the ordinary course of business) that assess the competitive conditions in the markets in which the merger parties compete; reports and presentations that focus on the competitive aspects of the proposed merger; strategic documents relating to the rationale for the merger; most recent annual financial statements; most recent business plans or budgets; most recent report to the Takeover Regulation Panel (in terms of the Companies Act), where relevant; affidavits attesting to information that is not available; proof of service on trade unions and proof of payment of the merger filing fee. The affidavits must be attested to by a duly authorized representative of the merger parties and must be signed before a commissioner of oaths or notary public. Where obtaining an affidavit is not feasible, the Commission accepts a written statement by an authorized representative.

Filing fees are ZAR165,000 for an intermediate merger and ZAR550,000 for a large merger. (Small mergers, if notified, do not attract a filing fee.)

The filing fees must be paid by the time that the merger filing is submitted to the Commission. The Act does not stipulate which party bears the responsibility for paying the filing fees – this is agreed between the parties to the merger. Both parties to a merger are responsible for submitting a merger filing and, in terms of the Commission’s Rules, parties to a merger must notify the Commission by filing a joint notification. Where a joint notification is not possible (for example, in a hostile takeover), the Commission’s Rules allow merging parties to make separate filings subject to obtaining the Commission’s consent to do so.

The Act provides that:

• In the case of an intermediate merger, the Commission has an initial investigation period of 20 business days and may unilaterally extend this period once by a maximum of 40 business days – the maximum review period, therefore, being 60 business days; and
• In the case of a large merger, the Commission has 40 business days to investigate the merger and send a written recommendation to the Tribunal. This period may be extended with the consent of the Tribunal by periods of no more than 15 business days at a time.

In the case of a large merger, if the Commission has not applied to extend the initial review period upon expiry of the 40 business days or has not issued a recommendation to the Tribunal within the 40 business days (or any extended period granted by the Tribunal), any party to the merger may then apply to the Tribunal for consideration of the merger in the absence of the Commission’s recommendation. Once the large merger is referred to the Tribunal a date for a hearing must be set within 10 business days. A certificate of approval or prohibition must be issued within 10 business days of the end of the hearing and reasons for decision must be provided within 20 business days thereafter.

In 2015, the Commission issued service standards in relation to the merger review periods.  The 2015 service standards categorize mergers according to the level of complexity – Phase 1 (non-complex), Phase 2 (complex), Phase 3 intermediate (very complex intermediate mergers) and Phase 3 large (very complex large mergers). These review periods do not replace the review periods set out in the Act. The objective of these review periods is to commit the Commission to expedite the assessment of non-complex mergers in particular. In terms of the service standards, the Commission anticipates a turnaround time of 20 business days for Phase 1 mergers, 45 business days for Phase 2 mergers, 60 business days for Phase 3 (intermediate) mergers and 120 business days for Phase 3 (large) mergers.

• The actual and potential level of import competition in the market; 
• The ease of entry into the market, including tariff and regulatory barriers; 
• The level and trends of concentration, and history of collusion, in the market; 
• The degree of countervailing power in the market; 
• The dynamic characteristics of the market, including growth, innovation and product differentiation; 
• The nature and extent of vertical integration in the market; 
• Whether the business or part of the business of a party to the merger has failed or is likely to fail; and 
• Whether the merger will result in the removal of an effective competitor. 

In the case of intermediate-sized and small mergers, the Commission investigates and makes a final determination on the transaction. It may prohibit or approve the transaction, or approve the transaction subject to conditions.

In the case of large mergers, the Commission investigates the transaction, makes a recommendation and the matter is referred to the Tribunal for final determination.

The Tribunal may also consider intermediate-sized or small mergers where it is requested to do so by the merging parties, or an interested party. The Tribunal may approve or prohibit a transaction or may approve the transaction subject to conditions.

Conditions are imposed where the competition authorities find that the transaction is likely to substantially prevent or lessen competition and there are no countervailing technological, efficiency or pro-competitive gains, or public interest considerations which outweigh the adverse impacts of the transaction. Conditions may also be imposed to address adverse public interest outcomes, even where no adverse competition impacts are found. The vast majority of cases before the competition authorities are approved, as the authorities seek to impose conditions that address the competition or public interest harm anticipated rather than prohibiting a transaction.

Where competition or public interest concerns arise, certain merger remedies may be imposed. The remedy imposed will depend on the nature of the harm identified. Remedies may be structural (typically divestiture) or behavioral. Behavioral remedies may include a host of innovative remedies. Such behavioral remedies include the conclusion of long-term supply arrangements, pricing commitments, licensing of intellectual property or other rights, obligations to source from existing or past suppliers (in most cases, these are local suppliers), requirements to invest in the domestic supply chain or maintain or expand local production facilities.

The Act provides for an assessment of both competition and public interest outcomes, and conditions have previously been imposed in transactions in which only public interest concerns arose (i.e. notwithstanding that there were no competition issues). Public interest cases have principally related to employment, in which case the most common condition is a moratorium on merger-related retrenchments for a period (although there have been a limited number of decisions in which the Commission has imposed a restriction on retrenchments for an indefinite period).  In the context of employment-related concerns, innovative remedies that have been imposed and/or tendered include training or reskilling employees, providing assistance with finding alternative employment, redeployment and re-employment when employment opportunities arise subsequently.

Public interest concerns also include issues such as the foreclosure of certain national industries, in which case a behavioral remedy compelling supply to local firms may be imposed for a period. Increasingly, more novel public interest conditions are being agreed to, including for example, commitments to reduce carbon emissions; making surplus oxygen available to customers in the healthcare sector; and entering into transactions to promote historically disadvantaged persons.

Yes, merging parties may proactively offer remedies in mergers where competition or public interest concerns have been identified. These may be offered at the outset or during the course of the Commission’s investigation or in the course of proceedings before the Tribunal. Many of the merger remedies imposed in previous cases have been the result of commitments offered and negotiated by merging parties in response to issues identified by the competition authorities (for example in Nestlé SA/Pfizer Infant Business the parties offered a remedy involving the licensing of certain infant formula brands to a third party, and in Massmart/Walmart a host of commitments were put forward by the merger parties).

If an incomplete filing is submitted, the Commission may issue a Notice of Incomplete Filing. The notice must be issued by the Commission within five business days of receiving the merger filing of a large merger and within ten business days for any other merger. This notice suspends the merger review period until the outstanding information has been submitted. At any stage during an investigation of a merger, the Commission may issue a Demand for Corrected Information if it believes that a document filed contains false or misleading information. This demand suspends the merger review period until the corrected information has been submitted to the Commission’s satisfaction.

The Commission may also revoke its decision to approve a merger if the decision was based on incorrect information for which a party to the merger was responsible.

In March 2010, the Commission issued guidelines explaining the requirements for a complete merger filing. The guidelines are not binding in that they do not limit the Commission’s ability to exercise its discretion in determining whether or not a filing is complete. The guidelines emphasize that the initial merger review period will not commence until the merging parties have satisfied all the notification requirements and that the Commission may issue a Notice of Incomplete Filing if all the notification requirements are not met.

Proceeding to implement a merger without obtaining the required approvals is a contravention of the Act and exposes both parties to administrative penalties of up to 10% of the firms’ annual turnovers. If detected, the Commission may refer the matter to the Tribunal or conclude a settlement agreement which must be approved by the Tribunal. In either case, the matter is brought before the Tribunal and is published in the government gazette and on the Tribunal’s website. The matter may also receive press coverage in South Africa. Fines paid by merger parties are not regarded as confidential and are made public. The Commission has published Guidelines for the Determination of Administrative Penalties for Failure to Notify a Merger and Implementation of Merger, which set out its approach to prosecuting parties for prior implementation of mergers. The Commission uses a filing fee-based methodology for the calculation of penalties for prior implementation. 

There are no criminal sanctions for failure to notify.

In addition to penalties, divestiture orders may be issued by the Tribunal where parties have implemented a merger without the necessary approval. The Tribunal considers the specific circumstances of each case in its assessment of the conduct and the appropriate penalty.

The highest penalty to date has been in the Life Healthcare Group ("LHG") /Joint Medical Holdings ("JMH") case, in which a fine of ZAR10 million was levied. Prior to the conclusion of the consent agreement, the Respondents have agreed that LHG would disinvest from JMH, that JMH would acquire nearly all of LHG's shareholding by way of a share buy-back arrangement, and that some existing doctor shareholders would acquire the balance of LHG's shareholding. This transaction resulted in the termination of the current shareholders agreement between JMH and its shareholders.

Parties to a small merger are not obliged to obtain clearance before implementing the transaction. However, if the Commission is of the opinion that the small merger “(a) may substantially prevent or lessen competition; (b) or cannot be justified on public interest grounds”, it is entitled (at its discretion) to call upon the parties to a small merger to notify the merger.

In 2009, the Commission issued a Guideline on its approach to small mergers. According to the Guideline, the Commission will require the notification of all small mergers that meet any of the following criteria:

• At the time of entering into the transaction any of the firms, or firms within their group, are subject to an investigation by the Commission in terms of Chapter 2 of the Act (namely, the chapter dealing with prohibited practices); or
• At the time of entering into the transaction any of the firms, or firms within their group, are respondents to pending proceedings referred by the Commission to the Competition Tribunal in terms of Chapter 2 of the Act. The Commission is in the process of amending its Guideline on small mergers, to also capture small mergers occurring in digital markets.

On 1 December 2022, the Commission implemented the revised Small Merger Guidelines which expanded the criteria under which a small merger may be notifiable. The Commission indicated that a revision was necessary following concerns that mergers in the digital space are escaping regulatory scrutiny due to acquisitions taking place at an early stage in the life of the target, and before sufficient turnover is generated to trigger the thresholds for mandatory merger notification. In terms of the revised Small Merger Guidelines, the Commission requests that it also be informed of all small mergers and share acquisitions where the acquiring firm’s annual turnover or asset value exceeds ZAR 6.6 billion in the preceding financial year; and the consideration (or purchase price) for the acquisition or investment exceeds ZAR 190 million; or the consideration for the acquisition of a part of the target firm is less than ZAR 190 million but ‘effectively values’ the target firm at ZAR 190 million or more.

As set out in "Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger." above, the Commission has the discretion to require the parties to a small merger to notify the Commission of that merger in certain circumstances. This procedure must be initiated by the Commission within six months after the merger has been implemented. Where the Commission exercises that discretion, merging parties may not take further steps to implement that merger until it has been approved or conditionally approved.

Where the Commission believes that a merger that ought to have been notified was not notified to the Commission, the Commission may request the Tribunal to issue a declaratory order requiring the merging parties to notify the Commission of the transaction. However, in practice, the Commission would typically contact the merging parties in the first instance and give the parties an opportunity to notify, if the parties concede that a notification should have been made or hear the parties’ submissions as to why the notification was not required.

The Commission has been especially focused on potential public interest issues raised by mergers, including the impact on employment, the ability of small businesses or firms controlled or owned by historically disadvantaged persons to become competitive; the ability of national industries to compete in international markets; and the promotion of a greater spread of ownership, in particular, to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market.

The competition authorities are also concerned with the security of the supply of vital inputs for national industries. The Commission’s investigation of a merger may be intensified where the transaction takes place in a sector that is the subject of a market inquiry or a cartel or abuse of dominance investigation.

It is anticipated that the foreign investment provisions contemplated in the Amendment Act relating to the acquisition by foreign firms of the country’s national security interests will come into effect soon, albeit there is no confirmation as to timing. In terms of these foreign investment provisions, the Commission and a government committee (yet to be constituted) must be notified of an acquisition of a South African firm by a foreign acquiring firm if the merger may impact the national security interests of the Republic. The Committee must decide whether the transaction may have an adverse effect on national security interests and the competition authorities may not make any decision where the merger has been prohibited on national security grounds.

The Minister of Trade, Industry and Competition (the "Minister") also published proposed new merger filing forms for comment which require substantially more information on the public interest effects of a merger and so-called creeping mergers, in line with the recent amendments to the Act. The new forms are expected to become effective during the course of 2021.

The Minister may participate, in the prescribed manner, in merger proceedings before the Commission, the Tribunal or the CAC, in order to make representations on any of the public interest grounds listed in the Act and increasingly, the Minister has been electing to participate.

Following the recent amendments to the Competition Act, the public interest assessment has been elevated, bringing it on par with the competition assessment. The competition authorities, in particular the Commission, have a strong focus on the impact of mergers on the greater spread of ownership by historically disadvantaged South African persons ("HDPs") and workers in firms in the market. There has been a recent trend where the conditions that seek to introduce a greater spread of ownership by HDPs, especially where a transaction results in a diminution in this regard, are imposed. In such an instance, ownership-related conditions together with other public interest conditions have become an expectation of the Commission so as to counterbalance the diminution in ownership by HDPs/workers. The most common condition seen is the introduction of a 5% worker ownership scheme, usually within the target firm. An emerging trend in late 2022/2023, is that the Commission is no longer satisfied that a merger has a neutral impact on considerations relating to HDP/worker ownership – the requirement, as a matter of the Commission’s policy, is that a merger contributes something additive towards the public interest – specifically, ownership. This has resulted in conditional merger approvals being on the rise. In certain instances, where ownership conditions are not possible, merging parties have tendered alternative public interest benefits. The Commission’s approach in this regard is yet to be tested before the Tribunal. Loss of employment and job preservation remains another key focus and moratoriums on merger-related job losses are often imposed where there is a concern that these may arise.