Notification and clearance timetable

Filing formalities

What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?

There are no deadlines for filing a merger, but intermediate or large mergers may not be implemented until the merger has been approved by the relevant competition authority. The sanctions for failing to notify an intermediate or large merger may include: an administrative penalty of up to 10 per cent of a firm’s South African turnover and or exports from South Africa; and any other order deemed appropriate by the Tribunal, including the unbundling of the merger and divestiture (most likely in mergers giving rise to competition concerns). To date, the competition authorities have only imposed administrative penalties for failing to receive merger control approval and the penalties to date have typically ranged between 350,000 and 2 million rand.

Which parties are responsible for filing and are filing fees required?

The acquiring and target firm are responsible for filing a joint merger application. The applicable filings fees are set out in the table below.

Merger classification

Filing fee

Small merger

No fee

Intermediate merger

165,000 rand

Large merger

550,000 rand

What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?

The implementation of intermediate and large mergers must be suspended until the merger has been approved by the relevant competition authority. The waiting period for approval depends on whether the merger is intermediate or large. For intermediate mergers, the Commission has an initial period of 20 business days within which to approve or prohibit a merger. This period can be extended by a further 40 business days, at the Commission’s discretion.

In the case of large mergers, the Commission has an initial 40 business days to investigate the merger and make a recommendation to the Tribunal to approve or prohibit a merger. The Commission can, however, apply to the Tribunal to extend the 40-business-day investigation period by 15 business days at a time. The merger parties may consent or object to such an extension request. The number of extensions requested by the Commission typically depends on the complexity of the merger. Once the Commission has made its recommendation to the Tribunal, the Tribunal must convene a hearing within 10 business days of the Commission making its recommendation to: make a final decision on the merger; or, in the case of a contested merger or a merger where third parties wish to participate in the Tribunal proceedings, determine the procedure and dates for the hearing of the matter, including any interlocutory procedures (ie, discovery, procedures for intervening parties, filing of witness statements or expert reports, etc) as may be required.

Pre-clearance closing

What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?

The sanctions for implementing a merger before clearance are the same as the sanctions that may be imposed for failure to notify. Please refer to question 9. The Commission published Guidelines for the determination administrative penalties for failure to notify mergers and implementation of mergers contrary to the Competition Act. The Guidelines could result in higher administrative penalties being imposed for prior implementation in future. The Guidelines set out a series of steps to be followed by the Commission when determining the administrative penalty.

Under the Guidelines, as a first step, the base amount for the administrative penalty will be double the filing fee (ie, 330 000 and 1.1 million rand for intermediate and large mergers, respectively). This step is followed by multiplying the base amount by a percentage relevant to the duration of the contravention. For example, if the conduct endured for less than a year, 50 per cent is added for every month during which the conduct was ongoing, 75 per cent and 100 per cent is added for every month if the conduct endured for between one and two years, or for longer than two years, respectively. Mitigating and aggravating factors can also be taken into account in determining the appropriate penalty.

Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?

Sanctions for closing before clearance apply equally to local and foreign-to-foreign mergers.

What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?

The Act does not provide for any hold-separate arrangements, but parties who wish to implement foreign-to-foreign mergers prior to obtaining approval in South Africa have in the past established a ‘hold-separate’ arrangement to ring-fence the South African leg of the merger. While the Commission or Tribunal has not expressly proffered a view on such arrangements, it has in the past been accepted in circumstances where the parties are able to illustrate that the South African leg of a global merger can be ring-fenced and will not be implemented prior to approval being granted.

Public takeovers

Are there any special merger control rules applicable to public takeover bids?

There are no specific merger control rules applicable to public takeover bids. To the extent that such bids meet the definition of a ‘merger’ in the Act (ie, results in a firm acquiring control over the whole or part of the business of another firm), such bid requires the approval of the competition authorities, if the prescribed financial thresholds are met.

Documentation

What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?

The Regulations to the Act prescribes certain forms and schedules to be completed on behalf of the acquiring and target firm. The information required in these schedules include the control structure of the acquiring firm or group, its controlling interests in South Africa, details of the largest customers and competitors of the parties to the merger and the market shares of the parties in respect of each relevant market.

It is a criminal offence under the Act to provide the Commission with false information. The sanction for such offence is a fine of up to 500,000 rand, imprisonment for a period of up to 10 years, or both a fine and imprisonment. In addition, if information is missing or certain prescribed documentation is not provided, the filing may be deemed incomplete, and the review period will not commence until the outstanding information or documentation is provided.

Documents relating to the merger that must be filed include: all merger agreements, any document including minutes, reports, presentations and summaries prepared for or by the board of directors of both the acquiring and target firms relating to the transaction, financial statements and the parties’ most recent business plan.

Investigation phases and timetable

What are the typical steps and different phases of the investigation?

After a merger is filed with the Commission, an investigating team will be assigned. The investigating team will liaise with the parties’ legal counsel throughout the investigation process. The typical steps taken by the investigating team during the investigation include contacting customers and competitors of the parties to get their views on the merger, sending out questionnaires to the parties or other market participants, conducting interviews or conference calls with relevant stakeholders, conducting site visits (if necessary) and meeting with the parties. Consultations with the Commission prior to filing a merger are not required. However, should the parties wish to meet with the Commission prior to filing, such a meeting can be arranged. These consultations may be helpful in extremely time-sensitive transactions, or transactions that are likely to have a substantial public interest impact (eg, significant job losses).

Once the investigating team has finalised its investigation, it will submit a report to the Commission’s Executive Committee for decision making.

What is the statutory timetable for clearance? Can it be speeded up?

See question 11 for the statutory periods for clearance in respect of intermediate and large mergers. The Commission published service standards for the review of mergers according to complexity. The table below summarises the Commission’s service standards. These periods are not binding on the Commission and merely serve to indicate the typical time period within which the Commission seeks to review mergers.

Type of merger

Description

Service standard

Phase 1

Non-complex

Parties’ market share is below 15%, no complex control structure and no public interest concerns arise

20 business days

Phase 2

Complex

Transactions involving actual or potential competitors, parties in a vertical (supply) relationship, where the parties hold more than a 15% market share, or raising public interest concerns

45 business days

Phase 3

Very complex

Transactions involving close competitors, high market shares, and requiring specific documents and information from parties (in addition to the prescribed documents and information) as well as third parties

60 business days (intermediate merger)

120 business days (large merger)

Although the Commission aims to finalise Phase 3 large mergers within 120 business days, these can often take much longer to finalise, particularly in circumstances where third parties have raised issues with the merger. There is no formal process in terms of which the merger review period can be fast tracked. However, with mergers that are extremely time sensitive and where delays could result in significant consequences, such as job losses or the closure of a firm, the parties can meet with the Commission prior to filing or during the investigation to explain the challenges and work with the Commission in an attempt to expedite the review.