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Tiso Consortium and NAIL (59/LM/Oct03) [2004] ZACT 17 (23 February 2004)
.RTF of original document
COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: 59/LM/Oct03
In the large merger between:
The Tiso Consortium (comprising of Investec Bank Ltd, Multi-Direct Investments 180 (Pty) Ltd, Capricorn Capital Partners Holding Co
(Pty) Ltd, Mineworkers Investments Co (Pty) Ltd (“MIC”) and Safika Holdings (Pty) Ltd)
and
New Africa Investments Limited (“NAIL”)
______________________________________________________________
Reasons
______________________________________________________________
1. On 28 January 2004, the Tribunal conditionally approved a merger between the Tiso Consortium (“Tiso”) and New Africa
Investments Limited (“NAIL”). The reasons for our decision are set out below.
Merger transaction
2. This merger entails the acquisition by the Tiso Consortium of the controlling shares in NAIL.
Background
3. On the 28 May 2003 the board of NAIL published its intention to sell its media assets. The board extended an invitation to all
interested parties to express an interest in acquiring all the shares in NAIL, its assets or to conclude a merger transaction.
4. The NAIL board received two rival bids, one from the Tiso Consortium and another from a consortium that included the Kagiso and
Johnnic Groups (“the Kagiso Consortium”). These two bids were different in terms of their respective financial structures,
more importantly, the Tiso offer was not subject to approval by the competition authorities.
5. When the Tiso offer became unconditional, the Kagiso Consortium brought an urgent application to the Tribunal, requesting the
Tribunal to interdict the further implementation of the Tiso offer. The application was premised on the allegation that the Tiso offer was a merger that wasrgerthat being implemented without prior approval of the competition authorities and therefore contravened section 13(A) 3 of the Act.
6. Pursuant to the Tribunal’s decision on the urgent application, NAIL and the Tiso Consortium filed a large merger notification
with the Commission on the 16 October 2003. At the time of the notification the Tiso Consortium had acquired the majority of the
entire issued share capital. However, the parties maintained that the transaction was not notifiable in terms of the Act and reserved their rights in this regard. We have not been asked by the Tiso Consortium
