Nortons Inc. September 2017 News

19 September 2017|In Competition Briefs eBriefs

In this edition:

  • South Africa
    • Mergers and acquisitions: New merger filing thresholds and fees
    • Cartels and enforcement: Commission charges Stuttaford Van Lines with record number of charges
  • Africa
    • Kenya: The Competition Authority publishes its Leniency Programme Guidelines
  • Nortons Inc. Recent Accolades

COMPETITION AND REGULATORY: SOUTH AFRICA 

Mergers and acquisitions:

Minister gazettes increase to merger filing fees and the new determination of merger thresholds

On 23 May 2017, Mr Ebrahim Patel, the Minister of Economic Development, published the draft amendment to Regulation 10(5) of the Conduct of Proceedings in the Competition Commission (“the Commission’s Rules”).  On 15 September 2017, the Minister published the final amendments to Rule 10(5) and the Determination of Merger Thresholds under Government Gazette No. 41121.

The amended Commission’s Rules and the new Determination of Merger Thresholds are effective from 1 October 2017.

The amendment sets out the increase of the merger filing fees in respect of intermediate and large mergers as follows:

Merger size Previous filing fees New filing fees
Intermediate ZAR 100 000 ZAR150 000
Large ZAR 350 000 ZAR 500 000

 

In addition, the Minister has also gazetted an amendment to Regulation 2 of General Notice 216 of 2009, which affects the lower financial thresholds when considering whether a proposed transaction meets the financial thresholds for notification.

The previous merger thresholds as at 1 April 2009 are set out below:

Previous financial thresholds Combined turnover /

asset value

(whichever is higher)

Target turnover /

asset value

(whichever is higher)

Lower threshold (intermediate merger) ZAR 560 million   ZAR 80 million
Higher threshold (large merger) ZAR 6.6 billion ZAR 190 million

 

The amended merger thresholds are set out below. Only the lower thresholds have been affected by the amendment, as highlighted in red below.

New financial thresholds Combined turnover /

asset value

(whichever is higher)

Target turnover /

asset value

(whichever is higher)

Lower threshold (intermediate merger) ZAR 600 million   ZAR 100 million
Higher threshold (large merger) ZAR 6.6 billion ZAR 190 million

 

At present, the higher thresholds for large mergers combined threshold of ZAR6.6 billion and target firm threshold of ZAR190 million remains unchanged.

The Minister has also published, for comment within 30 days of its publication, in the same Government Gazette, the proposed amendments to the Method of Calculation used for the purpose of calculating the asset value or turnover of a firm for the purpose of a merger notification.

The proposed amendments to the Method of Calculation seek to clarify the valuation of assets and the calculation of turnover of firms, and to replace the reference to the Generally Acceptable Accounting Principles, which is no longer is use with reference to the International Reporting Standards, as well as the replacement of the repealed Companies Act No. 61 of 1973 with the current Companies Act No. 71 of 2008.

For a copy of the relevant extracts from the Gazette, please click here.

Cartels and Enforcement

Commission charges Stuttaford Van Lines with record number of charges
 
The South African Competition Commission (the “Commission”) charged Stuttaford Van Lines, a furniture removal company, with 649 counts of alleged collusive tendering related to hundreds of government tenders issued for transporting government furniture, which constitutes the largest number of charges faced by a single company since the Commission’s inception in 1998.

The Commission confirmed that the matter emanates from its investigation which uncovered widespread anti-competitive and collusive conduct in the furniture removal market. In particular, the Commission indicated that its investigation found that Stuttaford Van Lines had colluded with certain of its competitors since approximately 2007 by means of so-called “cover quotes.

According to the Commission’s press release, the conduct related to tenders issued by the Presidency, Parliament, the South African Secret Service, the South African Police Service, the National Prosecuting Authority, the South African Revenue Services, the South African Reserve Bank, the Department of Justice, the Public Protector as well as other State-owned entities and private companies.

Although all of the companies which were found to have colluded with Stuttaford Van Lines have subsequently settled with the Commission, the case against Stuttaford Van Lines has now been referred to the Competition Tribunal for adjudication.

In terms of its referral, the Commission has asked the Tribunal to impose a penalty on Stuttaford Van Lines amounting to 10 percent of its annual turnover on each of the 649 charges. This would constitute the maximum administrative penalty in terms of the Competition Act, and is usually only imposed in instances of egregious breaches of the Competition Act.

A copy of the Commission’s media release can be accessed on this link:

http://www.compcom.co.za/wp-content/uploads/2017/01/Stuttaford-Van-Lines-2-August-2017-Final.pdf

COMPETITION AND REGULATORY: AFRICA 
Kenya: The Competition Authority publishes its Leniency Programme Guidelines

Kenyan Gazette No. 4736 issued the Competition Authority of Kenya’s (“the Authority”) Leniency Programme according to Section 89A of the Competition Act No. 12 of 2010 of Kenya (“the Act”) which empowers the Authority to operate a leniency programme which offers full or partial immunity to an entity in respect of certain restrictive practices under the Act in which the entity either:

(1) Voluntarily discloses its involvement in a prohibited practice; and/or
(2) Co-operates with the Authority in investigating the alleged practice.

The Guidelines apply to price fixing, market-sharing cartels, collusive tendering, fixing of purchase or selling prices, resale price maintenance or limits or control production, market outlets and access. It is to be mentioned that the Guidelines only apply to horizontal agreements, agreements between competitors, decisions made by trade associations and concerted practices by competitors. It is unclear why the Guidelines do not apply to entities participating in a vertical relationship, a relationship between a firm and its suppliers or customers or both.

To qualify for leniency, the applicant is required to:

(1) Provide full and truthful information;
(2) Provide total and expeditious co-operation;
(3) Keep the application process confidential and not alert cartel members or third parties that it has applied for leniency; and
(4) Immediately cease the prohibited conduct.

The leniency application will only be accepted in the following instances where the Authority:

(1) has no knowledge of the contravention;
(2) has knowledge but lacks sufficient information to start an investigation; or
(3) Has commenced the investigations but requires additional evidence to penalise the offenders.

Leniency is granted on a first-through-the-door basis, with the initiating applicant obtaining a 100% reduction in penalties and immunity from prosecution. Subsequent applicants may, at the discretion of the Authority, be granted reduced penalties on a sliding scale.

With regard to the punishment of imprisonment, the Guidelines provide that the Authority shall engage with the Director of Public Prosecutions. During the discussions process, the applicant is expected to ensure that an agreement is reached with Authority not to pursue criminal prosecutions in exchange for full co-operation.

In the event that permanent leniency is not granted, the Authority is at liberty to impose penalties against the applicant in accordance with the Act.

For a copy of the Guidelines, please see the following link: https://www.cak.go.ke/images/docs/Leniency_Programme_Guidelines_1.pdf 
 
RECENT ACCOLADES

 

 

 

 

Nortons Inc. won the DealMakers Country award for Competition & Antitrust Law Firm of the Year – South Africa.

 

 

 

 

Nortons Inc. also won the Lawyers World award for Competition Law Firm of the Year – South Africa.

 

 

 

 

Nortons Inc. has been selected as the Competition Law Firm of the Year – South Africa by LegalComprehensive.

 

 

 

 

 

Nortons Inc. has been awarded as one of InterContinental Finance Magazine’s 250 Leading Firms 2017.

M&A Today recognised Nortons Incorporated as a top tier law firm of the year in asset recovery in South Africa.

Global 100 (KMH Media) has recently named Nortons Incorporated as Law Firm of the Year – Asset Recovery – South Africa award in its 2017 Global 100 publication.

Nortons Incorporated was also named as Law Firm of the Year – Asset Recovery – South Africa by Corporate USA Today.