The Commission's decision to unconditionally approve the small merger between Paarl Media and a division of Primedia, Primedia@Home, has been set aside by the Tribunal. The Tribunal's order follows Caxton's application to the Tribunal to review the Commission's decision to approve the merger.
In its decision, the Tribunal found that the Commission's decision was flawed as it did not properly apply its mind to the facts before it at the time of approving the merger. In contradistinction to an appeal process, the Tribunal's review was not concerned with whether the Commission's conclusions were right or wrong but rather whether there was a proper application of the Commission's mind to the facts and evidence before it.
Upholding the review application, the Tribunal sent the case back to the Commission for reassessment by a new team within the Commission. An implication of the Tribunal's decision is that in the future the Commission will be seeking to cover all bases in its reports, particularly under the current climate of procedural scrutiny. This will require the Commission to spend a considerable amount of time and energy in drafting and collating reports prior to getting the investigation report to Exco level (the Commission's decision making body) and the Tribunal. It is anticipated that this will ultimately lead to a delay in merger investigations, which from a timing perspective, may form a considerable hurdle to deal flow.