South Africa: Small Or Large Merger? A Question Of Control

Last Updated: 17 September 2014
Article by Aidan Scallan and Schalk Van Rensburg

Most Read Contributor in South Africa, September 2018

There is a tension between the interests of the Competition Commission and commercial entities involved in merger transactions. For various policy reasons, the Commission is eager to cast its net wide and consider and investigate as many merger transactions as possible. Commercial entities, on the other hand, would prefer not to have to jump through the regulatory hoops required by a merger notification and would just like to get on with the business of deal making. Therefore, the recent attempt by the Commission to have a small merger classified as a large should be of concern to business. Fortunately, the decision of the Competition Tribunal in Tiger Equity Proprietary Limited and Murray & Roberts Proprietary Limited v Competition Commission, Case No. 019174 provides some welcome certainty on this issue.

The Commission is the regulatory body tasked with the consideration and investigation of mergers. However, the identity of the ultimate decision making body, and even whether a particular transaction requires notification in the first place, is determined with reference to the merger filing thresholds. Clearly, therefore, how a merger is classified has important consequences for the merging parties and the Commission alike, not only for whether a notification is required or whether the Commission or the Tribunal will have jurisdiction over the approval of the merger, but also for whether or not a merger filing fee is payable, the size of such fee, and the time period in which the Commission has to consider the merger.

The divergent interests of the Commission and merging parties has most recently been observed in the Tiger Equity Case. Briefly, the case involved the acquisition of Tolcon Proprietary Limited by Tiger Equity One Proprietary Limited. Initially, the merging parties filed the transaction as an intermediate merger. However, at the time the shareholders' agreement in respect of Tiger Equity had not yet been completed and the Commission therefore requested that the merging parties file the merger once the shareholders' agreement had been finalised. The merging parties accepted this and upon finalisation of the shareholders' agreement, filed the transaction as a small merger. The merging parties contended that Tiger Equity was a shelf company created for the purpose of the transaction and as such it did not have sufficient assets or turnover at time of notification to meet the lower merger threshold. Furthermore, the merging parties contended that given its shareholding structure, Tiger Equity was not controlled by any shareholder. The merging parties voluntarily filed the transaction as a small merger in accordance with the Commission's small merger guidelines because the seller, Murray & Roberts Proprietary Limited, was the subject of an investigation pertaining to possible collusion.

The Commission did not share the merging parties view and, having reviewed Tiger Equity's shareholders' agreement, concluded that Tiger Equity was jointly controlled by all its shareholders. The Commission concluded that the merging parties had incorrectly classified the transaction as a small merger when in fact it was large and served the merging parties with a Notice of Incomplete Filing.

The merging parties therefore brought an application to the Tribunal to have the Notice set aside and have the Tribunal confirm that the merger was indeed a small merger, which the Commission opposed. In arguing its case, the Commission relied on certain provisions of the Tiger Equity shareholders' agreement. The shares in Tiger Equity are held by six shareholders, with shareholdings ranging from 5% to 28%. The shareholders' agreement provided that each shareholder was entitled to appoint one director to the board. Such director would vote in the same proportion as the appointing shareholders' equity in Tiger Equity. The same would apply to voting at shareholders' meetings. Most decisions of the company would be made by ordinary resolution with a requisite majority of 50%, although some decisions would need to be passed by a special resolution with a requisite majority of 70%.

Relying on the fact that certain strategic decisions required a special resolution to be passed, the Commission argued that all the shareholders jointly controlled Tiger Equity. However, the Tribunal found that as the requisite majority to pass a special resolution was 70%, none of the shareholders had the ability to veto the passing of such a resolution (since the largest shareholder held 28%) and in this way 'control' Tiger Equity.

The Tribunal did recognise that an alliance between two or more of the shareholders could result in the ability to jointly veto the passing of a special resolution which could result in such shareholders being seen as joint controllers of the company. However, the Tribunal found that the Commission incorrectly relied on the fact that the shareholders' agreement had established a common strategic direction between all signatories thereto. The Tribunal went on to say that "there needs to be something more to glue the respective shareholders together, than this limited agreement".

The Tribunal found that as the Commission had only relied on the shareholders' agreement as proof that the shareholders were acting together and had led no further evidence to show that there was a coalition between the shareholders of Tiger Equity, such shareholders could not be considered to control Tiger Equity. Their financial information therefore did not need to be included in the threshold calculation and the transaction was confirmed as a small merger.

This decision provides valuable guidance where a consortium of shareholders acquires a company based on a coalition between them and such coalition controls the target firm. Importantly, for the purpose of determining control and for the calculation of merger filing thresholds, there is no legal presumption that the shareholders of a company jointly control the company. The onus will be on the Commission to prove that a coalition exists between the shareholders that results in joint control.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions