Notices > Guidelines for the Determination of Administrative Penalties for failure to notify mergers and implementation of mergers contrary to the Competition Act No 89 of 1998, as amended

1.1.	Unless the context indicates otherwise, the following terms are applicable to these guidelines—

1.1.1.

"Acquiring firm"

means a firm—

(a)	that, as a result of a transaction in any circumstances set out in section 12 of the Act, would directly or indirectly acquire, or establish direct or indirect control over, the whole or part of the business of another firm;

(b)	that has direct or indirect control over the whole or part of the business of a firm contemplated in paragraph (a); or

(c)	the whole or part of whose business is directly or indirectly controlled by a firm contemplated in paragraph (a) or (b).

1.1.2.

"The Act"

means the Competition Act No. 89 of 1998, as amended and includes the regulations made under the Act;

1.1.3.

"Administrative penalty"

means a monetary penalty that may be imposed by the Tribunal in terms of section 59 of the Act;

1.1.4.

"The CAC"

means the Competition Appeal Court as established in terms of section 36 of the Act;

1.1.5.

"The Commission"

means the Competition Commission, a juristic person established in terms of section 19 of the Act;

1.1.6.

"Competition authorities"

means the Commission and/or the Tribunal and/or the CAC as the case may be;

1.1.7.

"Failure to notify"

means the failure to notify a notifiable transaction as contemplated in section 13A(1) of the Act;

1.1.8.

"Filing Fee"

means the filing fee payable in respect of either an intermediate merger or a large merger in terms of regulations pursuant to Competition Commission Rule 10(5);

1.1.9.

"Firm"

includes a person (juristic or natural), partnership or a trust;

1.1.10.

"Firm’s annual turnover"

means the firm’s annual turnover in the Republic and its exports from the Republic during the firm’s preceding financial year as contemplated in section 59(2) of the Act;

1.1.11.

"Holding company"

means holding company as defined in section 1 of the Companies Act No.71 of 2008, as amended;

1.1.12.

"Intermediate merger"

means a merger or proposed merger with a value between the lower and higher thresholds established in terms of regulations pursuant to section 11(1)(a) of the Act;

1.1.13.

"Large merger"

means a merger or proposed merger with a value at or above the higher thresholds established in terms of regulations pursuant to section 11(1)(a) of the Act;

1.1.14.

"Merger"

means a merger as defined in section 12(1) of the Act;

1.1.15.

"Merging parties" or "parties"

include the acquiring firm(s), the Target firm(s) and the Transferred firm(s) which may be party to a notifiable merger in accordance with the Act;

1.1.16.

"Month"

means a calendar month or part thereof. For the sake of clarity part of a calendar month will be deemed to be a month;

1.1.17.

"Prior implementation"

means the premature implementation of a notifiable merger prior to obtaining the necessary approval of the competition authorities as contemplated in section 13A(3) of the Act;

1.1.18.

"Target firm"

means a firm—

(a)	the whole or part of whose business would be directly or indirectly controlled by an acquiring firm as a result of a transaction in any circumstances set out in section 12 of the Act;

(b)	that, as a result of a transaction in any circumstances set out in section 12 of the Act, would directly or indirectly transfer direct or indirect control of the whole or part of, its business to an acquiring firm; or

(c)	the whole or part of whose business is directly or indirectly controlled by a firm contemplated in paragraph (a) or (b) above;

1.1.19.

"Transferred firm"

means—

(a)	a firm, or the business or assets of the firm, that as a result of a transaction in any circumstances set out in section 12 of the Act, would become directly or indirectly controlled by an acquiring firm; and

(b)	any other firm, or business or assets of the firm, the whole or part of whose business is directly or indirectly controlled by a firm contemplated in paragraph (a);

1.1.20.

"The Tribunal"

means the Competition Tribunal, a juristic person established in terms of section 26 of the Act; and

1.1.21.

"Year"

means 12 (twelve) months.

Competition Act, 1998 (Act No. 89 of 1998)

Notices

Guidelines for the Determination of Administrative Penalties for Failure to Notify Mergers and Implementation of Mergers Contrary to the Competition Act No. 89 of 1998, as amended

1. Definitions