2
Judgment No. SC 52/18
Civil Appeal No. SC 560/17
On the date of hearing, a concession was made to the effect that the appeal lacked merit.
The parties advanced argument on costs. The Court made the order that the appeal be dismissed
with costs.
It became necessary for the Court to give a full judgment on the meaning of s 2 of the
Act.
Factual background
The first appellant is a limited liability company incorporated in terms of law, trading
in the food industry. The second appellant is also a limited liability company incorporated in
terms of law, trading in motor spares and accessories. The respondent is a body corporate
established in terms of s 4 of the Act.
Sometime in 2015 the first appellant acquired a controlling interest in the second
appellant. In terms of s 34 of the Act, as read with the Competition (Notifiable Merger
Thresholds) Regulations 2002 (SI 195 of 2002) (“the Regulations”), all mergers in terms of the
Act with a value above the threshold value of US$1.2 million had to be notified to the
respondent. The appellants’ conglomerate had a value above the prescribed threshold. The
appellants took the view that their union was not notifiable in terms of the Act as read with the
Regulations because it was a conglomerate. A conglomerate is a corporation formed by
merging unrelated firms. They alleged that a conglomerate was not a merger in terms of the
Act. The appellants based their view on an opinion given by an advocate.
The respondent had initially agreed to the position that the appellants’ union, being a
conglomerate, did not fall within the statutory definition of “merger” and was thus not