9 Judgment No. SC 52/18 Civil Appeal No. SC 560/17 The definition of a merger in s 2 of the Act is similar to the definition of merger in the South African Competition Act 89 of 1998 which reads as follows: “12. (1) For the purpose of this Chapter, ‘merger’ means the direct or indirect acquisition or direct or indirect establishment of control by one or more persons over all significant interests in the whole or part of the business of a competitor, supplier, customer or other person whether that control is achieved as a result of - …”. Commenting on the definition of merger in the South African Competition Act, David Lewis - the then Chairperson of the Competition Tribunal - in a speech titled The Competition Act 1998 – Merger Regulation, said: “There are a number of key features of merger regulation under the Act that you should appreciate upfront - firstly, it incorporates vertical, horizontal and conglomerate mergers; secondly, it is about acquisition of control and the mechanisms for acquiring control are broadly defined; thirdly control itself is broadly construed. In short, the merger definition is inclusive – there are few business combinations that would fall outside of the definition of merger. This contrasts markedly with the previous Act that dealt with horizontal mergers only - that is, mergers between competitors only.” (My emphasis) In interpreting the same provision of the South African Competition Act of 1998, the South African Competition Tribunal in the case of Bulmer SA (Pty) Ltd v Distillers Corporation (SA) Ltd (1) [2001-2002] CPLR 448 (CT), 464 said the following: “Section 12 refers to a competitor, supplier, customer or ‘other person’. The inclusion of the category of ‘other person’ considerably widens the ambit beyond the more obvious concerns about horizontal and vertical mergers to include all mergers.” From the above, it is clear that the South African definition of a merger, similar to the definition of a merger in s 2 of the Act, was held to include other mergers outside the horizontal and vertical mergers mentioned. In the same vein, the respondent’s argument that the definition