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Judgment No. SC 52/18
Civil Appeal No. SC 560/17
notifiable. It later took the view that conglomerates were covered by the definition of “merger”
in the Act and were required to be notified if their value exceeded the statutory threshold. The
respondent instituted proceedings in the court a quo, seeking an order declaring the
conglomerate formed by the appellants notifiable and compelling them to pay fees in terms of
s 34A of the Act as read with the Regulations.
The parties proceeded by way of a case stated in terms of r 199 of the High Court Rules,
1971. The statement of agreed facts presented by the parties was as follows:
“1.
The first defendant and the second defendant entered into a conglomerate
merger in 2015, through the acquisition by the first defendant of a controlling
interest in the second defendant.
2.
The first and second defendants are not competitors nor are they customer and
supplier.
3.
The plaintiff has insisted on notification of the merger between the defendants
on the basis that it is covered by the definition of a merger in s 2 of the
Competition Act [Chapter 14:28].
4.
The defendants insist that a conglomerate merger is not a notifiable merger in
terms of s 2 of the Competition Act [Chapter 14:28]”
The legal issue which the parties placed before the court a quo for determination was whether
or not the conglomerate formed by the appellants was a merger in terms of the Act.
The determination of the issue depended on the interpretation of the words “or other
person” in the definition of “merger” by s 2 of the Act. The respondent urged the court a quo
to apply the literal rule of interpretation in ascertaining the meaning of “merger”, as used in the
Act. It contended that the words “or other person” referred to a person falling outside the
categories of persons specifically mentioned in the definition. The appellants urged the court
a quo to apply the eiusdem generis or noscitur a sociis rule to ascertain the meaning of the