Whether your organisation plans to form a business alliance, challenge competitors, implement new product, marketing and distribution strategies, or it grows through corporate development, you will need expert knowledge of competition and antitrust laws.
Partnering with experienced specialists in competition law can make the difference between commercial success and regulatory non-compliance blunders, which which are costly and could damage your company’s reputation.
Our team is equipped to provide a comprehensive service that encompasses every aspect of competition
- Opinions on all aspects of the Competition Act, including merger related, prohibited practice or exemption questions
- Reviewing proposed and executed agreements and other business arrangements as a pre-emptive measure to ensure compliance with the Competition Act
- Preparing merger notification documents, guiding clients through merger investigation proceedings and representation at merger hearings
- Opposing mergers
- Advising in cartel enforcement proceedings, abuse of dominance matters (including excessive pricing, exclusionary abuses and price discrimination) and vertical arrangements
- Designing and executing tailored competition law compliance audits
- Initiating and advising on complaint proceedings before the competition authorities
- Defending clients in complaint proceedings
- Advising in respect of damages actions relating to anti-competitive conduct
- Initiating and defending interim relief proceedings before the Competition Tribunal
- Handling applications for exemption
- Handling applications for corporate leniency
- Cliffe Dekker Hofmeyr advised in an intermediate horizontal merger between Fidelity, as the acquiring firm, purchasing several businesses from Protea Coin Group (Assets in Transit and Armed Reaction) Proprietary Limited. The target firms comprise cash management solutions businesses such as cash in transit and cash processing services and Coin Cameos cash acceptance devices. Our team was involved in providing competition advice and handling the merger notification to the SA Competition Commission. The merger was conditionally approved by the Commission and the parties have requested a reconsideration by the Tribunal.
The merging parties overlap in the supply of products and services relating to cash management. The merger establishes Fidelity as the largest integrated security services company in SA. The merger notification involved an detailed unilateral effects analysis into a number of relevant markets. There was a public interest effect with retrenchments beings required by Fidelity post-merger.The Competition Commission approved the merger subject to the condition that the merging parties may not retrench any employees as a result of the merger for a three-year period. A further condition imposed related to the structural features of the markets assessed, and was aimed at addressing the flow of business sensitive information among competing security companies due to the inter-linkages that exist between the merging parties' shareholders.
- Cliffe Dekker Hofmeyr advised Massmart in the preparation and submission of a complaint to the Competition Commission regarding the enforcement by incumbent grocery retailers of exclusivity provisions in shopping mall lease agreements, which prevent Massmart from selling groceries in competition with the incumbents. Massmart is controlled by Walmart.
Despite declining to prosecute off the back of its own investigation during 2013, the Competition Commission remains concerned about the effect of mall lease exclusivities on competition. This complaint garnered significant media attention evidencing the importance of the issue to society at large and of our ability to play a lead role on major competition law matters in the media spotlight.
The complaint incudes substantial legal, factual and economic analysis and is the first to assert a lessening of competition on a national basis (through a network of exclusive arrangements that prevent Massmart from benefiting from economies of scale and scope), rather than with reference to a specific mall. On the strength of the complaint submission, the Competition Commission has proceeded with a full investigation. - October 2014 and on-going
- Cliffe Dekker Hofmeyr advised in a horizontal intermediate merger involving Oceana Limited acquiring Foodcorp’s entire fishing business (save for the Glenryck brand), including Foodcorp's Laaiplek processing facility and over 1,000 employees.
Oceana, with its Lucky Star brand, is the market leader in the canned pilchards market with a market share of 74 per cent and Foodcorp with its Glenryck brand is the second largest market player, holding 8 per cent. Canned pilchards comprise a key protein food for lower LSM consumers.
Our team was involved in providing preliminary written opinions and advice relating to the acquisition, the notification to the SA Commission, the request for consideration process before the Tribunal and the appeal to the Competition Appeal Court.
The transfer of Foodcorp’s fishing rights (and in particular its pilchard quota) to Oceana was an essential aspect of the merger, not only from Department of Agricultural Forestry and Fisheries (DAFF) perspective but also from Oceana’s perspective. Oceana is heavily reliant on imports for the majority of its pilchard requirements. The acquisition of the Foodcorp quota allows Oceana to substitute a small percentage of these imports with (relatively cheaper) domestic quota.
The key issues involved dynamics of competition, concurrency of jurisdiction between DAFF and the SA competition authorities and the divergence between competition policy and strict application of the Competition Act. There was also a significant public interest motivation in that absent the transaction 1,000 employees in an impoverished area could be rendered unemployed.
The Commission approved the merger subject to the condition that Foodcorp must dispose of the pilchard quota and the Glenryck brand. The merging parties requested the Tribunal to reconsider the merger and the Tribunal then required the disposal of the Glenryck brand and the Foodcorp’s (small pelagic) quota to the same purchaser. The matter was appealed by the parties to the Competition Appeal Court which held that Oceana be permitted to acquire the Foodcorp quota from Foodcorp and that Foodcorp could maintain the Glenryck brand or sell to a third party, other than Oceana. - February 2015
- Cliffe Dekker Hofmeyr is representing Mediclinic, a JSE-listed private hospital group and key stakeholder in the Market Inquiry into Private Healthcare.
We represent Mediclinic, one of the three JSE-listed private hospital groups in the Competition Commission's first market inquiry in terms of the new provisions of the Competition Amendment Act 1 of 2009. The dedicated panel, led by former Chief Justice Sandile Ngcobo, will probe the reasons for the high costs in the complex market of private healthcare.Although the enquiry will cover the entire spectrum of the private healthcare sector, there is a significant spotlight on the private hospitals. We are currently reviewing and responding to the 15,000 pages of submissions within the tight constraints of the inquiry timetable, after which there will be a series of public hearings across the country.
- Creation of Coca-Cola Beverages Africa: Cliffe Dekker Hofmeyr acted for TCCC in obtaining merger approval in various jurisdictions for the creation of Coca-Cola Beverages Africa – an amalgamation of the Coca-Cola bottling assets of SABMiller, Coca-Cola Sabco, Coca-Cola Shanduka Beverages and TCCC. The transaction also includes the acquisition by TCCC of a number of SABMiller non-alcoholic ready to drink brands, including Appletiser. Value USD260 million.
Merger of bottling operations and beverage brand acquisitions: Cliffe Dekker Hofmeyr advised on the multi-jurisdictional merger of The Coca-Cola Company's bottler partners in South Africa to form the largest Coca-Cola bottler in Africa. Advising on contemporaneous sale of various non-alcoholic beverage brands by SABMiller Plc to The Coca-Cola Company.
Lead lawyers: Director and National Practice Head, Chris Charter and Director Albert Aukema
- Cliffe Dekker Hofmeyr is acting for Massmart Holdings Limited who referred a complaint to the Tribunal regarding the enforcement by incumbent grocery retailers of exclusivity provisions in shopping mall lease agreements, which prevent Massmart from selling groceries in competition with the incumbents. Massmart is controlled by Walmart. Following the Commission's decision to subsume its investigation (initiated as a result of Massmart's complaint brought in late 2014) concerning the effect of mall lease exclusivities on competition into a broader grocery retail market inquiry, Massmart elected to self-refer the complaint to the Competition Tribunal. The matter is being vigorously defended by the respondents (major incumbent grocery retailers) and a number of interlocutory applications have been brought in an attempt to pre-occupy the Tribunal ahead of a hearing on the merits.
Lead lawyers: Director and National Practice Head, Chris Charter and Associate, Naasha Loopoo
- Cliffe Dekker Hofmeyr acted for Brait S.E., the South Africa-based investment holding company with shares listed on the Luxembourg Stock Exchange and also on the JSE. Brait’s portfolio is principally comprised of holdings in privately-owned businesses operating in a range of industries. In a deal valued by Brait SE at GBP 1.3 billion, Brait SE acquired 80% in Virgin Active. Competition approval in South Africa and Namibia were significant conditions precedent and Cliffe Dekker Hofmeyr secured approvals in both jurisdictions.
Lead lawyers: Director and National Practice Head, Chris Charter and Associate, Naasha Loopoo
- Cliffe Dekker Hofmeyr continues to advise Investec Principal Investments (now Investec Equity Partners) on various merger control matters related to its portfolio of investments. Crucially, Cliffe Dekker Hofmeyr advised Investec, part of a global specialist banking & asset management group listed on the JSE, in a lead role capacity in the disposal of its private equity portfolio (some 16 investments) to a special purpose vehicle, Investec Equity Partners, which is owned by Investec, Management and a number of Strategic Investors. Cliffe Dekker Hofmeyr provided advice regarding the transfer of private equity assets worth about ZAR 7.5bn to the new investment vehicle from the principal investments unit.
Lead lawyer: Director and National Practice Head, Chris Charter
- Cliffe Dekker Hofmeyr is advising the parties regarding a merger notification to form "MotoVantage", a joint venture between WesBank and Hollard, involving their interests in the motor value added products space. We are also providing advice to MotoVantage regarding a follow-up transaction in which MotoVantage will acquire Regent's motor VAPS business as a second phase in a transaction in which Hollard will acquire Regent Insurance from Imperial.
The MotoVantage transaction experienced a level of opposition from industry participants because of WesBank's high market share in the vehicle finance space. The transaction was approved with conditions regulating WesBank's conduct in this market. Value R2.3 billion
Lead lawyers: Andries le Grange and Director, Albert Aukema Competition; Director, Johan Latsky – Corporate & Commercial.
- Cliffe Dekker Hofmeyr acted for the South African Broadcasting Corporation (SABC) which is the state broadcaster in the country that provides 19 radio stations as well as 4 television broadcasts to the general public. The mandate involved responding to an opposing application by Caxton - the SOS Coalition and Media Monitoring Africa - to declare that a channel licencing agreement between SABC and Multichoice constitutes a merger under the Competition Act.
Lead lawyers: Director Andries le Grange and Associate, Kitso Tlhabanelo
- Cliffe Dekker Hofmeyr's long-standing client Vodacom is an African mobile communications company, providing voice, messaging, data and converged services to over 55 million customers. Vodacom, ,MTN and Cell C notified mergers to acquire the subscriber base of Altech Autopage, the last remaining service provider in the South African market. The mergers were approved with employment related conditions. The matter was opposed by Saicom but its intervention application and objections were dismissed by the Tribunal (there is a possibility of a review application being brought By Saicom). The case is important in the context of intervention by third parties in merger proceedings
Lead lawyers: Directors, Andries le Grange and Albert Aukema
- Cliffe Dekker Hofmeyr acted for the merging parties in securing unconditional merger approval for the horizontal merger between Transpaco and the business of East Rand Plastics, a division Astrapak. East Rand Plastics is one of Africa’s largest manufacturers and their well-known brand, GARBIE, is one of only two top brands in South Africa. They also manufacture many individual house brands.
Lead lawyers: Director, Natalie von Ey and Associate, Kitso Tlhabanelo
- Cliffe Dekker Hofmeyr is acting for Fidelity Security Group Pty Ltd, Southern Africa's largest integrated security solutions provider in the intermediate horizontal merger which was conditionally approved by the Competition Commission. The conditions related to information exchange and a 3 year moratorium on merger related retrenchments. Fidelity referred the matter to the Tribunal for re-consideration. Prior to the Tribunal's hearing of the matter, the Commission agreed to reduce the moratorium period to 18 months post-closing, as well as certain conditions acceptable to Fidelity relating to a study assistance programs and funding for retrenched employees. The conditions monitoring period is set to be completed by August 2018.
Lead lawyers: Directors, Natalie von Ey and Albert Aukema; Associate, Naasha Loopoo
- Market Inquiry: Cliffe Dekker Hofmeyr is representing Mediclinic, a JSE-listed private hospital group and one of the main stakeholders under the spotlight, in the Competition Commission's on-going market inquiry into private healthcare. The panel of five independent experts, led by retired Chief Justice Sandile Ngcobo, are probing the reasons for rising private healthcare expenditure in South Africa.
Cliffe Dekker Hofmeyr recently represented Mediclinic in the first set of public hearings which commenced in 16 February 2016. This round of hearings was attended by a wide range of stakeholders, including other private hospitals, medical schemes, Minister of Health, ,the Organisation for Economic Co-operation and Development and the World Health Organisation.
Mega-merger: Cliffe Dekker Hofmeyr advised Mediclinic in a reverse take-over of Al Noor Hospitals plc, a reverse listing on the JSE and inward listings on JSE and NSX. This was a landmark transaction for South Africa in 2015, in terms of both its complexity and the value. Value R125 billion
Lead lawyers: Director, Susan Meyer and Senior Associate, Nazeera Mia, Competition; Director, André de Lange, Corporate & Commercial
- Cliffe Dekker Hofmeyr acted for Ascendis and Akacia, in successfully obtaining unconditional merger clearances for JSE-listed healthcare group Ascendis' acquisition of the pharmaceutical business of Akacia, in South Africa, Namibia and Swaziland. Value ZAR 345 million
Lead lawyers: Directors, Susan Meyer and Senior Associate, Nazeera Mia
- Cliffe Dekker Hofmeyr obtained unconditional merger approval for the acquisition by JSE-listed Fortress of separately JSE-listed Capital. Value Approximately ZAR 52 billion
Lead lawyers: Directors, Susan Meyer and Senior Associate, Nazeera Mia
- Cliffe Dekker Hofmeyr represented Delta Property Fund Limited, a specialist, REIT status approved property fund listed on the Johannesburg Stock Exchange since 2012, in relation to obtaining large merger approval for its acquisition of a portfolio of sovereign tenanted properties from Redefine Properties Limited. The matter involved obtaining merger approval for Delta's acquisition of a portfolio of properties situated in major cities in South Africa including Johannesburg, Cape Town, Durban and Pretoria. Value R1,25 billion
Lead lawyers: Directors, Albert Aukema and Associate, Kitso Tlhabanelo
- Cliffe Dekker Hofmeyr obtained merger approval from competition authorities for large merger involving acquisition by Rebosis Property Fund Limited of control over Ascension Properties Limited.
Lead lawyers: Director, Albert Aukema and Associate, Naasha Loopoo
- Chambers Global 2010–2016 ranks our Competition practice in Band 2 in Competition/Antitrust.
- The Legal 500 EMEA 2011–2016 recognises us as Tier 2 in Competition.
- IFLR1000 2009–2016 ranks our practice as Tier 2.
- Best Lawyers International 2013–2014 lists our lawyers as ‘Top–listed in South Africa in Antitrust’.
- We were awarded Competition Law Firm of the Year in the Lawyer Monthly Legal Awards 2011.