In one fell swoop, the Constitutional Court undid what many had welcomed from the CAC’s

decision – a need to balance expedition in merger control with the benefits of intervention in the appropriate circumstances. 

Over and above offering clarity on merger procedure, the decision also delineates the respective institutional roles of the Tribunal, the CAC and the Constitutional Court in merger adjudication.

Factual background

The dispute arose from Pepkor’s proposed acquisition of Shoprite’s OK Furniture and House & Home divisions. Lewis Stores, a national competitor to the merger parties in the low-to-middle income furniture retail segment, sought leave to intervene before the Tribunal, contending that the merger would materially reshape competitive dynamics within the furniture retail industry. It also contended that it possessed “exclusive” industry-specific evidence and “unique insights” capable of assisting the Tribunal’s section 12A assessment in terms of the Competition Act 89 of 1998 (Competition Act), which the Competition Commission (Commission) initially had either not obtained or properly analysed. The Tribunal granted Lewis Stores limited rights to participate in the merger proceedings.

How the CAC framed intervention

On appeal to the CAC, that court effectively enjoined the Tribunal to consider the risk that competitors may seek intervention for cynical reasons by conflating “material” and “commercial” interests. It concluded that the Tribunal therefore ought to explore other ways to get valuable input (for example through calling the erstwhile intervenor to be a witness, or supply information) short of the procedural friction inherent in full intervention.

The CAC therefore appeared less concerned about a threshold test for intervention but rather suggested that the Tribunal should use its inquisitorial powers and “judicial discretion” to ensure expeditious merger hearings (in circumstances where a competitor may be advancing its own commercial interest in subverting a merger taking place in its market). In this regard, it found that Lewis had not demonstrated sufficiently specific or unique knowledge capable of providing material assistance to the Tribunal through intervention, despite basing its case for intervention on that very proposition.

In this context, the CAC found that the Tribunal’s participation order was overly broad in granting extensive procedural rights and access to confidential information in a manner that risked replicating the Commission’s investigative role and delaying merger proceedings.

On this basis, the CAC overturned the Tribunal’s decision and dismissed the intervention application entirely, effectively excluding Lewis Stores from the merger hearing (Pepkor Holdings Ltd v Lewis Stores (Pty) Ltd (2025) ZACAC 6). 

Lewis Stores then appealed to the Constitutional Court, placing the CAC’s intervention standard and appellate approach squarely in the ring.

The Constitutional Court’s rejection of the CAC’s intervention standard

Peering through its public interest lens, the Constitutional Court positioned this appeal as raising a point of law of general public importance regarding the scope of intervention. Applying an incorrect legal test could infringe the constitutional right of access to courts by excluding a party from the only forum empowered to determine merger-specific competitive harm. In doing so, the Constitutional Court highlighted the constitutional aspects of merger participation and positioned the dispute as one concerning lawful access to specialised adjudication, rather than merely procedural case management.

The fundamental takeaway here, however, is that the test for intervention was clarified: an applicant must merely demonstrate a material interest in the proceedings or a reasonable prospect of assisting the Tribunal in the performance of its statutory merger analysis.

In reaffirming this test, the Constitutional Court focused on whether an applicant for intervention should demonstrate that it possesses any unique or exclusive information, and expressly rejected that proposal as a departure from the settled position that finds no support in the Competition Act or Tribunal Rules. Overreliance on the Tribunal’s inquisitorial powers to obtain evidence independently would render intervention virtually impossible and undermine the participatory framework contemplated by the Competition Act.

In reaching its conclusion, the Constitutional Court traced the test through prior CAC jurisprudence, including Northam Platinum Holdings Limited v Impala Platinum Holdings Limited [2022] ZACAC 10; [2022] 2 CPLR 25 (CAC) and Africa Data Centres SA Development (Pty) Ltd v Digital Titan (Pty) Ltd [2022] ZACAC 6; [2022] 2 CPLR 21 (CAC). These cases determined that the existence of a material interest in the matter or the ability to offer material assistance to the Tribunal is sufficient to permit intervention.

Accordingly, the Constitutional Court rejected the CAC’s heightened standard and restored the orthodox assistance-based test.

The CAC’s impermissible interference with the Tribunal’s discretion

As has become usual in Constitutional Court decisions in the sphere of competition law, the court further held that the CAC had impermissibly interfered with the Tribunal’s exercise of discretion in granting participatory rights. As the specialist adjudicative body responsible for determining whether mergers substantially prevent or lessen competition, the Tribunal enjoys a true discretionary authority in regulating participation. Appellate intrusion in the absence of legal misdirection disrupts the institutional hierarchy of South Africa’s competition regime.

This aspect of the judgment is central in the Constitutional Court’s reasoning and confirms the Tribunal’s primacy in shaping the evidentiary record, while confining the CAC’s role to correcting genuine legal error rather than re-deciding participation on the merits.

Conclusion

While the Constitutional Court cannot be faulted for affirming the importance of intervention as part of a rigorous, adversarial process that can serve (and has in the past worked) to elucidate complex issues to be fully ventilated and resolved, the court’s failure to wrestle with the CAC’s admonishment that the Tribunal should equally consider the need for expedition in merger control and be alive to possible ulterior motives for intervention may be disappointing to those who saw the CAC as having introduced the possibility of a more calibrated process in contested mergers. 

Read together, the CAC and Constitutional Court judgments illustrate a tension between two models of merger control:

• the CAC’s focus on procedural efficiency, prioritising expedition and limiting competitor participation; and
• the Constitutional Court’s focus on the application of the recognised test for intervention which emphasises evidentiary completeness and access to the courts, as well as the Tribunal’s discretion within the competition law regime.

One upshot of the Constitutional Court’s approach is that it still appears open to the Tribunal to allow intervention to supplement and bolster the Commission’s investigation, which critics might assert could lead to less rigorous investigations and a deference to third-party prosecution of mergers. In this regard, the intervention process, while adding fuel to the crucible of contested merger hearings, will still favour delay over expedition.   

Ultimately, if one wishes to intervene in merger proceedings, this judgment clarifies the standard that would need to be met to do so.