Gold Fields Limited v Harmony Gold Mining Company Limited and Another (leave to appeal) (43/CAC/Nov04) [2005] ZACAC 1; [2005] 1 CPLR 74 (CAC) (27 January 2005)

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[2005] ZACAC 1
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Gold Fields Limited v Harmony Gold Mining Company Limited and Another (leave to appeal) (43/CAC/Nov04) [2005] ZACAC 1; [2005] 1 CPLR 74 (CAC) (27 January 2005)

IN THE
COMPETITION APPEAL COURT
In the matter between
GOLD FIELDS LIMITED

Appellant
And
HARMONY GOLD MINING
COMPANY LIMITED 1
st
Respondent
THE COMPETITION
COMMISSION 2
nd
Respondent
JUDGMENT:
DAVIS
JP:
Introduction.
Appellant instituted an application in the Competition Tribunal
(‘the Tribunal’) in which it sought an order to prevent first
respondent from implementing a merger within the meaning of the
Competition Act 89 of 1998 (‘the Act’).
The relief sought by
appellant was couched in a notice of motion in the following terms:
‘
PART A
The applicant intends to make an application for an order in the
following terms:
The applicant is hereby granted leave to bring Part A of this
application as a matter of urgency, and any non-compliance by the
applicant with the forms, time period and service provided for in
the Rules for the Conduct of proceedings in the Competition Tribunal
is hereby condoned.
Pending the final determination of the application set out in Part C
below a temporary order in the following terms:
The first respondent (hereinafter referred to as the “first
respondent” or “Harmony”) shall be and is hereby interdicted
and restrained from implementing a proposed transaction published
by the first respondent on the Stock Exchange News Service
(“SENS”)
on 18 October 2003 (the “announcement”), including but not
limited to the taking of any steps designed to achieve
the
implementation of, inter alia, that portion of the transaction set
out therein described as the “early settlement offer”
(hereinafter referred to as the “early settlement offer” or the
“transaction”).
The first respondent shall be and is hereby interdicted and
restrained from accepting the tender to it of any Gold Field shares
or otherwise taking transfer of such shares in the share capital of
the applicant as it may have accepted pursuant to the early
settlement offer or otherwise.
The first respondent shall be and is hereby interdicted and
restrained from voting, or otherwise exercising any rights attached
to, any shares in the share capital of the applicant which it may
have acquired pursuant to the early settlement offer or otherwise.
The second respondent (hereinafter referred to as the “second
respondent” or “Norilsk”) shall be and is hereby interdicted
and restrained from voting, or otherwise exercising any rights
attached to, any shares in the share capital of the applicant
which
it may hold, insofar as such votes are exercised in respect of or
in connection with or such other rights pertain to any
aspect of
the transaction proposed to be implemented between the applicant
and IAMGold Corporation Inc, a company registered
and incorporated
in accordance with the laws of Canada (“IAMGOLD”), the details
of which were notified to shareholders of
the applicant on 11
August 2004 (the “IAMGold” transaction”).
The cost of this part A of the application be costs in part C, the
main application.
Granting the applicant such further and/or alternative relief as
this Honourable Tribunal deems fit.
PART B
The applicants intend to make application for an order in the
following terms:
The applicant is hereby granted leave to bring Part B of this
application as a matter of urgency, and any non-compliance by the
applicant with the forms, time periods and service provided for in
the Rules for the Conduct of Proceedings in the Competition
Tribunal
is hereby condoned.
That service of this Notice of Motion be effected on:
Each of the shareholders of the applicant as reflected in the
applicant’s register of members; and
Those persons named by the Central Securities Depositary
Participants (“CSDPs”) administering the sub-registers of the

applicant being the beneficial holders of shares in the applicant,
as reflected in the records of the CSDPS, (collectively the
“applicant’s shareholders”) by publication of this order and
the Notice of Motion, within 7 (seven) days of the date of
this
order, in each of the Business Day, the Government Gazette, the
Sunday Times, Rapport and Die Beeld.
That a copy of this Notice of Motion and the applicant’s founding
affidavit (together with the annexures thereto) shall be available,
during normal business hours, prior to the hearing of the above
Honourable Tribunal for the application in Part C hereof at the
offices of the applicant’s legal advisers, Edward Nathan and
Friedland (Pty) Ltd (at the address reflected in Part A of this
Notice of Motion). Further that, if requested, copies of such
documents may be obtained, free of charge, on request, from the

above named address.
That a subpoena, in terms of the draft subpoena attached to the
founding affidavit to this Notice of Motion be issued.
That the costs of this Part B be costs in the cause of the
application for the relief set out in Part C of this Notice of
Motion.
Granting the applicant further and/or alternative relief.
PART C
The applicant intends to make an application for an order in the
following terms:
11. The acceptance by and transfer of any shares in the share
capital of Gold Fields (whether pursuant to the early settlement
offer or otherwise) to and/or the exercise of any voting rights
attaching to such Gold Fields’ shares by Harmony prior to the
approval
by the competition authorities of the acquisition of 100% of
the issued share capital of Gold Fields constitutes implementation of
a notifiable merger prior to the approval thereof by the Competition
Authorities and, as such, is prohibited by the terms of the
Competition Act (No 89 of 1998), as amended (“the Act”).
12. Alternatively, the
early settlement offer (as described in the announcement (which is
attached to the applicant’s founding
affidavit marked NH1)
constitutes a larger merger, which is required to be notified to the
Competition Commission in terms of the
Act.
13.The first respondent, alternatively the first and second
respondents, jointly, are directed to notify the transaction to the
third
respondent as a large merger, in accordance with the
requirements of the Act.
14.Pending the final approval, if any of the acquisition by Harmony
of all of the shares in the share capital of Gold Fields or
some of
the shares in Gold Fields pursuant to the early settlement offer
(with or without conditions) by the Competition Tribunal
or the
Competition Appeal Court in terms of the Act:
14.1 The first
respondent (hereinafter referred to as the “first respondent” or
“Harmony”) shall be and is hereby interdicted
and restrained from
implementing a proposed transaction published by the first respondent
on the Stock Exchange News Service (“SENS”)
on 18 October 2004
(“the announcement”), including but not limited to any steps
designed to the implementation of, inter alia,
that portion of the
transaction set out therein described as “the early settlement
offer” (hereinafter referred to as “the
early settlement offer”
or the “transaction”).
14.2 The first
respondent shall be and is hereby interdicted and restrained from
accepting the tender to it of any Gold Fields shares
or otherwise
taking transfer of such shares in the share capital of the applicants
it may have accepted to the early settlement offer
or otherwise.
14.3 The first
respondent shall be and is hereby interdicted and restrained from
voting, or otherwise exercising any rights attached
to, any shares in
the share capital of the applicant which it may have acquired
pursuant to the early settlement offer or otherwise.
14.4 The second
respondent (hereinafter referred to as the “second respondent” or
“Norilsk”) shall be and is hereby interdicted
and restrained from
voting, or otherwise exercising any rights attached to, any shares in
the share capital of the applicant which
it may hold, insofar as such
votes are exercised in respect of or in connection with or such other
rights pertain to any aspect of
the transaction proposed to be
implemented between the applicant and IAMGold Corporation Inc, a
company registered and incorporated
in accordance with the laws of
Canada (“IAMGold”), the details of which were notified to
shareholders of the applicant on 11
August 2004 (“the IAMGold
transaction”).
15. The cost of this application, including the costs of the
application set out in Parts A and B above, shall be paid jointly and
severally by the first respondent, and by such other respondents as
oppose this application, the one paying the others to be absolved.
16. Granting the
applicant such further and/or alternative relief as this Honourable
Tribunal deems fit.’
On 18 November 2004 the
Tribunal dismissed the application. It is against this decision that
appellant has appealed to this Court.
The Factual Background.
The facts can be briefly summarized thus:
In March 2004 Norimet
Ltd, the wholly owned subsidiary of Norilsk, acquired 20,03%
shareholding in appellant. On 11 August 2004 appellant
announced
that it had entered into an agreement with Canadian mining company,
IAMGold Corporation (‘IAMGold’). In terms of
this agreement,
appellant and IAMGold agreed to a pooling of appellant’s assets
located outside SADC area with the assets of IAMGold.
In
consideration for the purchase of these assets, IAMGold would issue
shares to appellant resulting in appellant owning about 70%
of
IAMGold. Appellant’s board of directors would be required to put
this arrangement to its shareholders for approval by a simple
majority at a shareholders meeting on 7 December 2004. Norilsk
considered that the proposal would result in a significant diminution
of value for shareholders as a whole. It conveyed its concerns
about this proposal to appellant’s management but to no avail.

Accordingly, it announced that it would cast votes against the
transaction.
On 16 October 2004
first respondent approached appellant’s board of directors with a
proposal for a merger between the two companies.
In terms of this
proposal, first respondent would acquire the entire issued share
capital of appellant in exchange for the issue
to appellant’s
shareholders of new shares in first respondent. Appellant’s board
asked for further particulars but before these
were forthcoming, on
18 October 2004 first respondent made a public announcement of its
bid for appellant. A circular was issued
on the same day.
The offer appears to
have been structured in two separate stages. In the first stage,
which first respondent has called the early
settlement offer, it
offers to acquire up to 34,9% of the share capital in appellant.
First respondent will not acquire any more
shares at this stage and,
if more shares are tendered, a pro rating mechanism will be used to
scale back the shares accepted to
this number. The only conditions
attaching to this offer are that certain resolutions are to be passed
at a general meeting of first
respondent. The early settlement offer
was open for acceptance from 20 October 2004 and closed for
acceptance on 26 November 2004.
Subsequent to this stage, the
subsequent offer commences the day after the consideration is settled
in respect of the early settlement
offer. According to the circular
this date is set, as being at the earliest, 29 November 2004 but no
later than 3 December 2004.
The subsequent offer which is open for
acceptance until 4 February 2005 is subject to a number of
conditions,
inter alia
that first respondent receives
valid acceptances for over 50% of appellant’s entire issued share
capital, the proposed IAMGold
transaction is not implemented for
whatever reason including that the shareholders do not approve it at
the general meeting on 7
December 2004 and that the merger is
approved by the relevant regulatory authorities including the
Competition authorities.
The Tribunal’s
decision.
When the matter came before the Tribunal, appellant contended that
the early settlement offer amounted to an acquisition of control
of
appellant which control would be implemented at the general meeting
on 7 December 2004 and would be in contravention of section
13 A of
the
Competition Act. The
essence of the relief sought by appellant
was an interdict to prevent the implementation of the early
settlement offer on the grounds
that the change in control had not
been approved by the relevant Competition authorities. The Tribunal
held, that on a balance of
probabilities, it had not been
established that the two offers formed part of a single offer to
acquire control. It further found
that the early settlement offer
alone did not amount to a change of control nor could it be said, on
the basis of the evidence placed
before the Tribunal, that any
arrangement or undertaking between Norilsk and first respondent
established the existence of joint
control. For these reasons the
application was dismissed.
On 24 November 2004 an
appeal against this decision was heard by this Court. The matter was
enrolled on the basis of extreme urgency.
The appeal was lodged on
18 November 2004. The Court received the record on Friday 19
th
November. Appellant’s heads were received at 15h00 on 22 November
and respondents’ heads at 9.00 a.m. on 23 November 2004.
As was
made clear to counsel at the hearing the Court was not in the
position, for obvious reasons given the complexity of the matter,
to
deliver a judgment before 26 November 2004 when the early settlement
offer expired. Given the urgency however the following order
was
handed down on 26 November 2004:
‘Having read the
papers and having heard counsel we make the following order:
Pending the final approval of the acquisition by Harmony of all of
the shares in the share capital of Gold Fields or some of the
shares
in Gold Fields pursuant to the early settlement offer (with or
without conditions) by the Competition Tribunal or the Competition
Appeal Court in terms of the act:
The first respondent shall be and is hereby interdicted and
restrained from voting or otherwise exercising any rights attached
to, any shares in the share capital of the appellant which it may
have acquired pursuant to the early settlement offer or otherwise.
The first Respondent is ordered to pay the costs of the appeal which
costs include the cost of two (2) counsel.’
The following are the reasons for this order.
Jurisdiction to grant interdictory relief.
The application brought by appellant concerns the question as to
whether the transaction is notifiable as being a large merger as
defined in section 12 of the Act. If it is found to be a large
merger, the Tribunal is required to approve the merger or to prohibit
implementation thereof in terms of section 16(1) of the Act.
Assuming that the proposed transaction in this case amounts to a
large
merger and that the Tribunal is required to approve thereof,
the question arises as to the powers of the Tribunal in
circumstances
where a party intends to implement a large merger in
contravention of the Act, particularly S 13 A thereof.
Section 13 A provides:
‘The parties to an intermediate or large merger may not implement
that merger until it has been approved
with or without conditions, by
the Competition Commission in terms of section 14(1)(b), the
Competition Tribunal in terms of section
16(2) or the Competition
Appeal Court in terms of section 17.’
Mr Unterhalter, who
appeared together with Mr Wilson on behalf of first respondent,
conceded that the only section which could conceivably
be employed as
a source of the Tribunal’s power to grant interim relief was
section 27(1)(d) of the Act which provides that ‘the
Competition
Tribunal may make any ruling or order necessary or incidental to the
performance of its functions in terms of this Act’.
According to
Mr Unterhalter, section 49 C of the Act expressly provides for
interim relief but only in respect of an alleged prohibited
practice.
There is no similar provision in respect of mergers. Given this
specific provision, Mr Unterhalter concluded that the
legislature
could not be understood to have created, in addition to this specific
provision, a wide ranging residual power to grant
interim relief
which could well render S 49C redundant.
This conclusion is not
justified by the literal reading of section 27(1)(d) nor does it
appear to be a reasonable interpretation
of the phrase ‘necessary
or incidental’ to the powers of the Tribunal in the case of a
merger. For example, if a party threatens
to implement a large
merger in contravention of section 13 A of the Act, as Mr Fine who
appeared together with Mr Maenetje on behalf
of third respondent
noted, it would be counter productive and cost ineffective were the
Tribunal to determine that a merger had
taken place, prohibit such
merger but then be unable to give effect to that order because of
the absence of a provision empowering
it to grant interdictory
relief. If, in exercising its merger powers, the Tribunal found that
a proposed transaction constituted
a merger and the parties were
intent on implementation, say before notification, it would be a
legislative curiosity if the Tribunal
did not have the power to grant
an appropriate order to prevent a breach of the Act in circumstances
where the breach was so flagrant.
This implication could never have
been the intention of the legislature.
This conclusion is
supported by the judgment in
Seagram Africa (Pty) Ltd v
Stellenbosch Farmers Winery Group Ltd and Others
2001(2)SA 1129
(C). In this case, applicant applied for an interim interdict to
restrain respondent from implementing a large merger
until approval
had been obtained in terms of the Act. The application was brought
their application before the High Court rather
than before the
Tribunal.
Jali J
held that the High Court had no jurisdiction
to grant such interdict. He held that the Tribunal had jurisdiction
to grant the relief
sought by the applicants for
‘there is nothing which prohibits a party which has been aggrieved
by the action of another party to approach the Tribunal of the
Court
to move an application for an interdict. Section 27(1)(c) of the Act
gives the Tribunal the right to ‘adjudicate in relation
to any
conduct wherever in terms of chap 2 or 3’. The duty given to the
Tribunal to adjudicate does not exclude the duty to grant
an
interdict. The question is what conduct is prohibited in terms of
chapter 3 as contemplated in this section? I am of the view
that as
chap 3 deals with mergers, conduct which could be prohibited in terms
of chap 3 would, amongst others, be an attempt to proceed
with a
merger without notifying the commission in terms of s 13, when a
merger falls squarely within the definition of the merger
defined in
s 12. If that is the case, then any aggrieved party would be
entitled to approach the Tribunal to move such an application.
In my
view, the absence of a clear position in the Act so that the Tribunal
can grant interdicts is not a shortcoming as the applicants
contended.’ (at 1140 G-J).
The
test as to the existence of ‘necessary implication’ was set out
in
Rennie NO v Gordon & Another NNO
1998(1) SA (A) at 22 F
as follows: ‘the implication is a necessary one in the sense that
without it effect cannot be given to the
statute as it stands’ In
the present case, the reading suggested by first respondent would
render the Tribunal powerless to prevent
a violation of the Act. In
certain cases the conduct could be penalized later in terms of the
divestiture provision, S. 60, but
in others a violating party would
be able to win a war of position with impunity. In my view, the
reading of the Tribunal’s powers
as set out in
Seagram’s
case
,
supra
is correct and is thus dispositive of the jurisdictional
issue.
Requirements for Relief
During the hearing before the Tribunal a considerable debate took
place regarding the nature of the relief being sought by appellant
and in particular whether the relief sought was final relief or that
of an interim nature. Mr Gauntlett who appeared together with
Mr van
der Nest and Mr Cockrell on behalf of appellant, did not press the
issue of interim relief before this Court. The debate between
the
parties took place on the basis that the application constituted a
prayer for final relief.
The requirements for a
final interdict are trite law. They are:
A clear right on the part of applicant;
An injury actually committed or reasonably apprehended; and
The absence of any other satisfactory remedy to the applicant.
See
Setlogelo v Setlogelo
1914 A D 221.
Appellant contends that the proposed transaction is a merger that
first respondent intends to implement in contravention of section
13
A(1) of the Act. If the merger would have to be implemented without
approval, Mr Gauntlett submitted that appellant itself, as
the target
firm, would have also contravened the Act.
In order to analyse
whether the proposed transaction contravened section 13 A(2) of the
Act, a number of issues require analysis namely
was there an obligation on the part of first respondent to notify
the Competition Commission of the transaction in terms of section
13
A(1);
Has there been a proposed merger in the present case; and
when does section 13 A(3) namely the provision which prohibits
parties to a large merger from implementing that merger until
approval
has been given by the Competition Authorities.
Notification of the Merger.
Mr Unterhalter conceded that there was an obligation in terms of
section 13 A(1) read with section 13 A(3) for first respondent
to
notify and obtain approval of its proposed merger before the merger
was implemented. That conclusion clearly followed from the
definition of large mergers in section 11 of the Act which provides
that ‘for purposes of this Chapter..…a large merger means
a
merger or
proposed merger
with a value at or above the higher
threshold established in terms of sub-section (1)(a)’ (my
emphasis). First respondent’s argument
turned on two related
issues, namely the time at which first respondent was so obligated to
notify and that, at best for appellant,
that obligation commenced
after completion of the early settlement offer.
Once a party proposes a
large merger, it must notify the Commission of that merger in the
prescribed time and form. From the definition
of ‘acquiring firm’
and ‘target firm’ it appears that the notification in terms of S
13 A(1) is the ‘transaction’ in
terms of which control will be
acquired. This interpretation gives proper meaning to the pre
notification procedure, a point acknowledged
by the Tribunal in
Bulmer SA (Pty) Ltd and Another v Distillers Corporation SA (Pty)
Ltd
(Case 94/FN/ Nov.00) at p.17: ‘Notification is intended to
be as extensive as possible; hence the breadth of the language in
section
12. Once a transaction presents the essential features of a
merger it is notifiable. If this were not the case, there would be a
danger that mergers that might have adverse effects might go
undetected because the jurisdictional barriers in terms of section
12,
had been set too high.’
The implication of this
procedure is, not that the party cannot continue with its proposal,
to effect a merger but that it will be
prohibited in terms of section
13 A from implementing the merger until the latter has been approved.
Has there been a proposed Merger?
The question then arises as to whether, on the facts, there was a
proposal to implement a transaction that, when so implemented,
will
involve the acquisition of control by first respondent either on its
own or with another party over the whole or part of the
business of
appellant. If the answer is positive, then, on the basis of S 13
A(1) there is an obligation to notify.
Appellant contends that
as from 18 October 2004, it was clear that first respondent was
intent on effecting a merger between itself
and appellant. The press
releases and correspondence generated by first respondent are
critical to an evaluation of this submission.
I shall cite three of
the key documents.
On 18 October 2004 the
following announcement was published by the JSE News Service:
‘Announcement regarding a potential merger between Harmony and Gold
Fields Limited (Gold Fields)
1.Introduction.
The board of Harmony hereby announces the terms of a proposed merger
between Harmony and Gold Fields (the proposed merger), under
which
Harmony proposes to acquire the entire issued share capital of Gold
Fields in exchange for the issue to Gold Fields shareholders
of new
shares in Harmony.
Harmony has conveyed
the terms of the proposed merger to the board of Gold Fields and is
hopeful that the proposed merger will be
recommended by the directors
of Gold Fields. However, in view of the proposed transaction between
Gold Fields and IAMGold Corporation
(the proposed IAMGold
transaction), which Harmony considers to be contrary to the best
interests of Gold Fields shareholders, Harmony
believes that Gold
Fields shareholders should be afforded the opportunity to decide on
the merits of the proposed merger at the
earliest opportunity. To
this end, Harmony will shortly post to Gold Fields shareholders an
offer document containing the detailed
terms and conditions of the
proposed merger.
The proposed merger is
conditional, inter alia, on the proposed IAMGold transaction not
proceeding and the approval of the proposed
merger by Harmony
shareholders.
The proposed merger
will be implemented in accordance with the rules of the Securities
Regulation Panel (SRP) and the US Securities
and Exchange Commission
(SEC).
4.Structure of the proposed merger.
Harmony has designed a mechanism to allow Gold Fields shareholders to
realize, within as short a time period as reasonably practicable,
the
benefit of the premium inherent within the proposed merger. However,
in order to allow all Gold Fields shareholders to benefit
from this
mechanism, Harmony must comply with the regulatory requirements in
the United States of America (US). As a result, the
proposed merger
is to be structured as two immediately consecutive offers, each
subject to the respective conditions precedent set
out in paragraph
13.
Through the making of
this announcement, Harmony has irrevocably committed to offer to
acquire the entire issued share capital of
Gold Fields in the
following manner:
early settlement offer: an initial offer to acquire up to 34.9% of
the entire issued share capital of Gold Fields on the basis
set out
below, not subject to the tender of any minimum number of shares
(the early settlement offer); and
subsequent offer: an immediate follow-on offer on the same terms as
the early settlement offer for the balance of the entire
issued
share capital of Gold Fields not already acquired by Harmony under
the early settlement offer (the subsequent offer).
The subsequent
offer will be subject to the conditions precedent set out in
paragraph 13.2’
With regard to the subsequent offer:
the passing and, where applicable, registration of the Harmony
resolutions;
Harmony receiving valid acceptances of the subsequent offer from
Gold Fields shareholders in respect of in excess of 50% of
the
entire issued share capital of Gold Fields (including those Gold
Fields shares settled by Harmony under the early settlement
offer
and those Gold Fields shares in respect of which Norilsk has
irrevocably undertaken to accept the subsequent offer);
The proposed IAMGold transaction not being implemented for
whatever reason including,
inter alia
, Gold Fields
shareholders failing to approve the proposed IAMGold transaction
at the Gold Fields general meeting;
The proposed merger being approved by the South African
Competition Authorities under the Competition Act, 1998 (Act 89 of
l998), as amended;
The registration statement with respect to the Harmony
consideration shares in the US offer having been declared
effective
by the SEC; and
The approval of all regulatory authorities whose approval is
required for the implementation of the proposed merger.’
On 19 October 2004 Ms Jean Meijer, the attorney acting on behalf of
first respondent, wrote to the Competition Commission. The letter
was
entitled “Application for permission to file separate notification
of the large merger in terms of section 13 A(1) read with
Rule 28”.
Ms Meijer writes:
‘1.We act for Harmony Gold Mining Company Limited which has made
offers in terms of section 440 of the Companies Act….to the
shareholders of Gold Fields Ltd….If successful, the offer will
result in Harmony acquiring in excess of 50% of the entire share
capital of Gold Fields (“the merger”) thereby acquiring control
as envisaged in section 12(2)(a) of the Competition Act…
In order to comply with USA regulatory requirements there will be
two immediate consecutive offers. Harmony has irrevocably
undertaken
to acquire the entire share capital of Gold Fields in the
following manner –
2.1Early settlement offer – an initial offer to acquire up to 34.9%
of the entire issue share capital of Gold Fields; and
2.2 Subsequent offer –
an immediate follow-on offer on the same terms as the early
settlement offer for the balance of the issued
share capital of Gold
Fields not already acquired by Harmony under the early settlement
offer.’
In a letter to the
shareholders of appellant on 20 October 2004 first respondent
enclosed ‘details of a proposed merger and urged
shareholders to
accept the proposed merger with Harmony’. The second paragraph of
the letter of the Chief Executor of first respondent,
Mr Bernard
Swanepoel to appellant’s shareholders contains the following
passage:
‘Harmony has conveyed
the terms of the proposed merger to the Board of Directors of Gold
Fields and it is hopeful that the proposed
merger will be recommended
by the Gold Fields Board. However, in view of the proposed disposal
by Gold Fields of its international
asset portfolio IAMGold, which
Harmony considers to be contrary to the best interests of Gold Fields
shareholders, Harmony believes
that Gold Fields shall thus be
afforded the opportunity to decide on the merits of the proposed
merger at the earliest opportunity.’
The Tribunal adopted
the approach that there was no need to notify. It reasoned thus:
‘Whilst intention may have some evidential value in deciding
whether a transaction is a merger it is by no means decisive of the
issue. A good many buyers of shares may have ambitions to control a
firm one day and if all purchases were to be notified as mergers
once
they have assumed this intent, any number of people would be jamming
the highways to Pretoria to notify mergers to the Commission.
Intent
in the ‘air’ does not suffice.
Whilst Gold Fields’
case is perhaps stronger on the mechanics of the transaction inasmuch
as the offer documentation purports to
facilitate a smooth passage
from the early settlement offer to the final offer, we nevertheless
find that the chain between the transactions
is broken for several
reasons and that, accordingly, control is not effected at this, the
first stage. Even if Harmony receives
all of its acceptances at the
first stage it does not follow that the second stage is inevitable.
Whilst the second offer is automatic,
acceptance of it is not, and
many things may happen between now and then, including the
possibility of movement in both share prices
which might lead to
arbitrage selling by holders or opportunistic squeezes for a better
offer.’
But this conclusion is exactly the opposite of what it claims; it has
elevated form over substance. The cumulative weight of the
documents
cited is a crystal clear indication of the value of the transaction –
to effect a merger. This is not about day dreams
to control a
company, - the prospect and substance of first respondent’s is
publically announced.
Mr Unterhalter
submitted that there was no dispute that the legal structure
initially contemplated by first respondent for its bid
was an offer
which included an early settlement option Only on 15 October 2004
was the bid restructured into two separate and
discrete offers,
being the early settlement offer and the subsequent offer. This
revised structure was adopted in order to comply
with the regulatory
requirements in the United States, in terms of which no offer can
contain an option which would allow early settlement
of some shares
before all the conditions of the offer were satisfied. The reason
why 34,9% of the shares was set as the maximum
percentage of shares
that would be subject to the early settlement offer was because the
mandatory offer requirements of the Securities
Regulation code on
Takeover and Mergers (SRC) are triggered when 35% or more of the
company’s shares are acquired.
Thus the transaction
might well have been structured to comply with the regulatory
requirements of the United States is one consideration.
That the
various announcements and correspondence generated by first
respondent amounted to a proposed merger is a separate issue.
I did not take Mr
Unterhalter to contend to the contrary. His fundamental objection to
the relief sought by appellants turned on
the question as to whether
the acquisition by first respondent of 34,9% of the shares of
appellant constituted a merger as defined
in s 12 of the Act. In
other words, Mr Unterhalter submitted that, even if the Tribunal had
the power to grant intermediate relief
claimed by appellant, this
relief would be premature because it had not made out a case that the
early settlement offer would result
in an acquisition of control of
appellant. In terms of section 12(1)(a) of the Act a merger occurs
when a firm ‘acquires or establishes’
control over another.
According to Mr Unterhalter, it is necessary for appellant to show
that the transaction involved the acquisition
or establishment of
control of appellant. If the early settlement offer did not produce
this result, then the transaction could not
constitute a merger for
the purpose of the Act and no relief could be obtained by appellant.
In its written heads,
appellant adopted the approach that the proposed transaction involved
a single transaction to acquire 100% of
the shares in appellant. In
support of this submission, it referred to the SENS announcement, the
circular and the answering affidavit
of Mr Grobicki in support of the
submission that first respondent had embarked on a course of conduct,
the effect of which would
be to acquire up to 100% of the shares in
appellant. Accordingly, any attempt to distinguish between the early
settlement offer
and the subsequent offer was irrelevant. On the
evidence, first respondent’s contention that there were in fact two
discrete transactions
could not be sustained. In his answering
affidavit Mr Grobicki said ‘The early settlement offer and the
subsequent offer are two
connected transactions in Harmony’s
overall objective to acquire control of Gold Fields’. In the
registration statement filed
at the Securities Exchange Commission in
Washington DC, a copy of which was annexed to the answering affidavit
the following appeared:
‘The purpose of US offer and the South African offer is to acquire
control of Gold Fields. It was the present intention of Harmony,
as
soon as practicable after the consummation of the US and South
African offers, the further offers described below and the exercise
of the irrevocable undertaking by Norilsk, to seek maximum
representation on the board of directors of Gold Fields. Harmony
also
irrevocably commenced to launch further offers in the United
States and South Africa for the remainder of the Gold Fields
shares…..
During the US offer and the South African offer, we will
continue to review, on the basis of publicly available information,
the
business and operations of Gold Fields and evaluate various
business strategies and operational initiatives that we may implement
in the event that we acquire control of Gold Fields and to the extent
we believe them appropriate. In addition, if and to the extent
that
we acquire control of Gold Fields, or otherwise obtain access to the
books and records, management, employees and other resources
of Gold
Fields, we intend to conduct a detailed review of Gold Fields,
business operation, assets, financial projections, budgets,
strategic
and business goals, legal and governance structures, properties,
dividend policy, capitalization, capital structure, management
and
personnel and consider and determine what, if any, future actions
would be desirable in light of the circumstances that then
exist.
For example, we may, among other things, plan to make changes in Gold
Fields business facility, locations, corporate structure,
capital
structure, boards of directors and/or management, marketing
strategies or dividends policy. If Harmony eventually acquires
the
necessary voting rights then such action is desirable in light of
the circumstances that then exist, Harmony also reserves
the right
to merge Gold Fields into Harmony’.
There is considerable
authority for the proposition that our law examines the substance of
the transaction and ‘will not be deceived
by the form of the
transaction: it will render aside the veil in which the transaction
is wrapped and examine its true nature and
substance’
Kilburn v
Estate Kilburn
1931 AD 501
and 507. In
Dadoo Ltd and Others v
Krugersdorp Municipal Council
1920 AD 530
and 547
Innes CJ
stated
‘[the] rule is merely a branch of fundamental doctrine the law
regards the substance rather than the form of things – the doctrine
common, one would think, to every system of jurisprudence and
conveniently expressed in the maxim plus
valet quod agitur quam
quod simulate concipitur’
. This approach followed an earlier
judgment of
Innes J
(as he then was) in
Zandburg v Van Zyl
1910 AD 302
at 309 in which he said: ‘The Court must be
satisfied that there is a real intention, definitely ascertainable,
which differs from
the simulated intention. If the parties in fact
mean that a contract shall have effect in accordance with its tenor,
the circumstances,
that the same object might have been obtained in
another way will not necessarily make the arrangement other than it
purports to
be. The enquiry, therefore, is in each case one of
fact, for the right solution of which no general rule can be laid
down.’
The test therefore is not what the contract purports to arrange but
what constitutes the intention of the parties to the agreements
in
question. See Erf 3183/1 Ladysmith (Pty) Ltd and Another v C I R
1996(3) SA 942(A) at 953 B. If as Mr Grobicki contends in his
answering affidavit, the early settlement offer and the subsequent
offer are indeed two connected transactions, and that first
respondent’s
overall objective was to acquire control of appellant,
then it can be taken that the intention of first respondent albeit
shaped
in two separate elements representive composite transaction to
gain control of appellant. The persuasive nature of this argument
notwithstanding, appellant’s submissions before this Court
concentrated on the effect of the early settlement offer.
Initially
appellant’s argument was premised on the fact that the early
settlement offer, if successful, would result in first respondent
acquiring 34.9% interest of appellant’s shares, thereby gaining
control of appellant. However, at the hearing Mr Gauntlett
concentrated
his argument exclusively on the effect of the early
settlement offer together with the relationship between first
respondent and
Norilsk; that is whether joint control would be
achieved by the two parties pursuant to the early settlement offer.
This argument was based
on significant part on the undertaking given by Norilsk to first
respondent.
On 16 October 2004 the
following irrevocable undertaking was given to first respondent by
Norilsk:
‘2 We currently hold directly and/or indirectly 98 467 758 Gold
Fields shares (‘Specified Shares’).
We hereby irrevocably and unconditionally-
confirm that we are the beneficial holder of the Specified Shares,
are entitled to exercise all voting rights attaching to the
Specified Shares and are able to transfer unencumbered title in and
to the Specified Shares to Harmony;
undertake, subject to the provisions of this letter –
not to dispose of or in any way encumber all or any of the
Specified Shares or grant any right or restriction in connection
with the Specified Shares;
to vote all of the Specified Shares against the proposed sale by
Gold Fields of its non-South African aessets to IAMGolf

Corporation (‘IAMGold’);
not to accept the early settlement offer (as defined in the
Announcement) in respect of any of the Specified Shares; and
provided that the Proposed Offer is subject to and made on the
same terms and conditions as the Terms and Conditions, to accept
the subsequent offer (as defined in the Announcement) in respect
of all of the Specified Shares in accordance with the terms
of the
proposed Offer, once the approvals required from the South African
Competition Authorities and the South African Reserve
Bank and any
other required regulatory approvals to enable the Proposed Offer
to be implemented in accordance with its terms,
are granted
without conditions the effect of which would be materially
detrimental to the value of the enlarged group or are
granted
subject to such material conditions which we confirm to Harmony in
writing are acceptable to us, which acceptance shall
not be
unreasonably withheld or delayed.
4 We are advised that Harmony may wish to implement the Proposed
Offer by way of a scheme of arrangement in terms of section 311
of
the Companies Act proposed by Harmony between Gold Fields and Gold
Fields shareholders (other than Harmony)((‘Scheme of Arrangement’).
We further hereby irrevocably and unconditionally undertake, subject
to the provisions of this letter, in such event, to vote all
of the
Specified Shares in favour of the Scheme of Arrangement. Provided
Harmony implements the Scheme of Arrangement on the Terms
and
Conditions, it being acknowledged and accepted that the mechanics of
such implementation will differ from the mechanics of the
implementation of the Proposed Offer.
The undertakings contained herein shall remain in full force and
effect until the earliest of –
20 May 2005;
30 days after the last of the approvals referred to in paragraph
3.2.4 has been obtained;
the date upon which the Proposed Offer lapses as a result of the
non-fulfilment of any condition precedent to which the Proposed
Offer is subject; and
the date upon which the Proposed Offer is withdrawn for any reason.
The undertakings contained herein will lapse and no longer be of any
further force or effect if –
the Proposed Offer is not made on or before 1 November 2004; or
Harmony fails to take all reasonable steps required to implement
the Proposed Offer, including but not limited to calling a meeting
of shareholders of Harmony, making any regulatory filings and
mailing offer documentation to Gold Fields shareholders within
a
reasonable time period.’
Mr Gauntlett noted that the undertaking given was to the effect that
Norilsk would not dispose of or encumber its shares in appellant,
it
would vote all of its shares in appellant against IAMGold
transaction, it would not accept first respondent’s early
settlement
offer and it would accept its subsequent offer in due
course.
On this basis Mr
Gauntlett submitted that the acquisition by first respondent in terms
of the early settlement agreement together
with the irrevocable
undertaking provided by Norilsk in respect of its shareholding of
20,03% would effectively give first respondent
control over 54.93%
of the issued share capital of appellant at the meeting on 7 December
2004 which had been called to vote on the
proposed sale by appellant
of its non South African assets to IAMGold.
There are two legal
bases relied upon by appellant to support its argument concerning the
effect of the early settlement offer upon
the control of appellant.
In terms of section 12(2)(b), a person controls a firm if that person
is entitled to vote a majority of
the votes that may be cast in a
general meeting of the firm or has the ability to control the voting
of the majority of those votes,
either directly or through a
controlled entity of that person. Secondly, section 12(2)(g)
provides that “a person controls a firm…
.if that person has the
ability to materially influence the policy of the firm in a manner
comparable to a person who, in ordinary
commercial practice, can
exercise an element of control referred to in paragraph (a) to (f).”
In dealing with the
argument that the acquisition of 34,9% of the shares of appellant
together with the irrevocable undertaking provided
by Norilsk would
provide first respondent with control in terms of section 12(2)(g)
the Tribunal concluded:
‘Control for purposes of the
Competition Act is
relevant to the
controller’s ability to effect the behaviour of the control firm in
some firm (sic). For instance
section 12(2)(g)
refers to the fact
that one has the ability to materially influence the policy of the
firm. This kind of evidence is entirely lacking
in the applicant’s
papers – there is no allegation of the existence of further
agreements or even the fact that they will have
a common incentive to
control jointly. Whilst Gold Fields is entitled to be incredulous at
the discussion between Harmony and Norilsk
would not have gone
further than the agreement on the undertaking, we must, in the
absence of any other evidence accept respondents
unequivocal version
on the facts’.
In seeking to support
this finding, Mr Unterhalter submitted that there were two elements
in the threshold provided in
section 12(2)(g)
; not only must the
person be held to exercise influence over the firm but that person
must be able to do so in the manner of a
controller. Thus material
influence alone is not sufficient to establish control. Control must
amount to decisive influence as
exercised by a controller of a firm.
In this connection, Mr Unterhalter referred to the EC notice on the
Concept of Concentration
under the Merger Regulations and
particularly paragraphs 32 and 35 thereof which provide
‘
Very exceptionally
, collective action can occur on a de
facto basis where
strong common interests exist
between the
minority shareholders
to the effect that they would not act
against each other in exercising their rights in relation to the
joint venture
….
In the absence of
strong common interests…. the
possibility of changing coalitions
between minority shareholders will normally exclude the assumption of
joint control Where there is
no stable majority in the
decision-making procedure
and the majority can on each occasion
be any of the various combinations possible amongst the minority
shareholders, it cannot be
assumed that the minority shareholders
will jointly control the undertaking.’ (my emphasis)
Mr Unterhalter
submitted that the significance of these paragraphs is that they all
involve collective action that produces a lasting
change in the
control structure of the firm in question. This would be the case
even in respect of veto rights over specific decisions
which may
confer joint control. Accordingly, Mr Unterhalter submitted that
the mere showing of a consistent voting pattern or
even co-operation
between shareholders was insufficient to establish joint control for
the purposes of competition law. The common
interest must be such
that the parties will always or at least almost always vote together
on all material decisions.
In my view, there is no
textual basis for distinguishing between short and long term control
particularly when the wording of section
12(2)(g) is carefully
considered. This conclusion is well illustrated by the facts in the
present case. It is common cause that
were first respondent to
acquire 34.9% of the shareholding of appellant, it together with
Norilsk pursuant to the latter’s irrevocable
undertaking, would be
able to defeat IAMGold a motion in favour of the transaction. This
transaction has been presented by appellant
to its shareholders as
being of critical importance to the future of appellant. The
rationale for this transaction is set out in
a cautionary
announcement of 11 August 2004 thus:
‘Gold Fields has established a significant portfolio of non-SADC
assets, which produced approximately 1.4 million gold equivalent
ounces on an attributable basis for the financial year ended 30 June
2004. As at 30 June 2003, the attributable proven and probable
reserves for these assets totalled approximately 11.2 million ounces
of gold and the attributable mineral resources represented
approximately
26.4 million ounces of gold. Gold Fields believes that
the transaction presents an opportunity to add further high quality
production
of approximately 0.4 million ounces per annum through the
consolidation of IAMGold’s and Gold Fields’ holdings in Tarkwa
and
Damang and through the addition of IAMGold’s holdings in
Sadiola and Yatela.
Furthermore, the
transaction creates an entity that can compete with international
gold companies on a level playing field. Direct
access to the
international capital and debt markets should enable the company to
develop the APP and (subject to completion of its
acquisition) Cerro
Corona projects in an optimal manner, and to react more swiftly to
acquisition opportunities as they arise.
The injection of Gold
Fields’ non-SADC assets into a separately listed, financially
independent company should present an opportunity
for further value
creation as the market benchmarks the assets of GOLD FIELDS
INTERNATIONAL against those of its international peer
group.’
This announcement makes
clear that the IAMGold transaction is critical to the future of
appellant, whatever the outcome of the decision
taken at the meeting
of 7 December 2004.
As a result of the
early settlement offer and the irrevocable undertaking from Norilsk,
first respondent will be able to effect a
permanent and irreversible
change to the very structure of its competitor; at the very least it
will be able to materially interest
a key policy of appellant by
ensuring that appellant’s long term strategy of entering into the
IAMGold transaction could not be
implemented. That the IAMGold
transaction is critical to appellant’s strategy was made clear by
Mr Hollard in his founding affidavit:
Gold Fields’ rationale for concluding the IAMGold transaction was
that it would create an entity that is better equipped to compete
with companies through more direct access to the international
capital and debt markets
, thus providing the flexibility to
respond more swiftly to acquisition and project development
opportunities as they arise (and thereby
facilitating both organic
and acquisition growth within the merge entity) The effect of this
will be the creation of substantial
additional value for Gold Fields
shareholders.
The early settlement,
if implemented, would constitute a large merger that must be
notified in terms of section 13 A (1). For this
reason the
acquisition by first respondent of 34,9% of the issued share capital
of appellant read together with the irrevocable undertaking
of
Norilsk would constitute an assumption of control in terms of section
12(2)(g) of the Act.
S 13A(3) and the
concept of ‘implementation’.
This conclusion leads to the further question, being the meaning of
the concept of implementation. This concept if best understood
in
terms of the architecture of this part of the Act.
Section 13 A (3) which
provides that ‘the parties to an intermediate or a large merger may
not implement that merger until it has
been approved…..’ must be
read together with section 60(1) of the Act which provides that ‘If
a merger is implemented in contravention
of chapter 3, the
Competition Tribunal may –
order a party the merger to sell his shares, interest or other
assets that it has acquired pursuant to the merger; or
declare void any provision and agreement to which the merger was
subject.
In this context the Act does not differ significantly from Article
7(1) of the EC Merger Regulation (No. 131 – 2004 of 20 January
2004) which provides that: ‘A concentration with a Community
dimension as defined in Article 1 which is to be examined by the
Commission
pursuant to Article 4(5), shall not be implemented either
before its notification or until it has been declared compatible with
the
common market pursuant to a decision under Articles 6(1)(b), 8(1)
or 8(2) or on the basis of a presumption according to Article 10(6).
Article 7.2 provides
that paragraph 1 shall not prevent implementation of a public bid or
of a series of transactions in securities
including those convertible
into other securities admitted to trading on a market such as the
stock exchange, by which control within
the meaning of Article 3 is
acquired from various sellers provided that
the concentration is notified to the Commission pursuant to Article
4 without delay; and
the acquirer does not exercise the voting rights attached to the
securities in question or does so only to maintain a full value
of
its investments based on a derogation granted by the Commission
under paragraph 3.
The Canadian Competition Act of 1985, on which a number of the
provisions of Chapter 3 of the Act were based, is of some assistance
in dealing with the interpretation of implementation. Section
114(1) of the Canadian Act provides
inter alia
that, ‘subject
to this Part, where (a) a person, or two or more persons pursuant to
an agreement or arrangement, proposed to acquire
assets in the
circumstances set out in sub-section 110 (2), to acquire shares in
the circumstances set out in sub-section 110(3)
to acquire an
interest in a combination in the circumstances set out in sub-section
110(6)
the parties to the
proposed merger shall, before the transaction is completed, notify
the Commissioner that the transaction is proposed
and supply the
Commissioner with information in accordance with this Part.
Section 110of the
Canadian Act refers to the acquisition of assets of an operating
business where the aggregate value of those assets
exceed a certain
prescribed threshold. Likewise, section 110(3) refers to the
acquisition of voting shares of a corporation that
carries on an
operating business or controls a corporation that carries on an
operating business where the aggregate value of the
assets of such
business exceed a certain prescribed threshold. Similarly, section
110(6) refers to a proposed acquisition of an
interest in the
combination that carries on an operating business otherwise than
through a corporation (a) where the aggregate value
of the assets
exceeds a certain prescribed limit. This notification to the
Commissioner of Competition is required before the designated
transaction is completed. In terms of section 100(1), the
Competition Tribunal may issue an interim order forbidding any person
named in the application from doing any act or thing that appears to
the Tribunal may constitute or be directed towards the
completion
or implementation
of a proposed merger in respect of which an
application has not been made……’ (my emphasis)
The Canadian Act
therefore envisages notification before completion of the merger and
provides authority for the award of interim
relief where a party
seeks to complete or implement a proposed merger.
That the phrase ‘may
not implement a merger until it has been approved’ as it appears in
section 13 A(3) of the Act does not constitute
a complete or
impediment, as does section 100 of the Canadian Act, it made it clear
by the Tribunal’s own finding in
Anglo American Holdings Limited
v Kumba Resources Ltd (Industrial Development Corporation
intervening)
[2003] 2 CPLR 288
(CC)
at para 34 where the Tribunal
said ‘Whilst one could not expect firms to notify a merger where
their ability to require control
was at that stage academic it is not
necessary for them to have completed the process of acquisition as a
jurisdictional prerequisite
to notification’. In short, the
process of investigation begins after notification but not
necessarily before the merger has been
completed. What section 13
A(3) seeks to prohibit was not the completion of the merger but any
implementation thereof prior to authorization
having been granted by
the relevant competition authorities.
Were the early
settlement offer to constitute a merger as defined in section 12 of
the Act, first respondent would not be entitled
to exercise a
controlling influence over first appellant pursuant to this offer
without having obtained permission from the competition
authorities
to do so. This then leads to the question to whether the proposed
transaction constitutes a proposed merger.
Apprehension of Harm.
Because the apprehension of harm was objective and the measure is
reasonable apprehension Actual harm as an outcome need not be
established
on the part of balance of probabilities. See
Minister
of Law and Order v Nordien
1987(2) SA 894 (A). The harm with
which appellant is clearly concerned in the present case is the
exercise by first respondent of
rights attaching to shares in
contravention of the prohibition against the implementation of a
large merger prior to scrutiny by
the competition authorities. In
exercising the rights attached to any shares it might acquire, first
respondent will have the ability
to materially influence the
strategic positioning of appellant. This harm is exacerbated by
virtue of the alternative transaction
contemplated by directors of
appellant which would then have been scuttled by the actions of first
respondent. Mr Unterhalter attempted
to counter this argument by
contending that any application to interdict the implementation of
the early settlement offer could only
be brought after the early
settlement closing date 26 November 2004. That however can not be an
answer to a case which succeeds
in showing a breach of section 13
A(3) of the Act and where such breach is clearly and deliberately
intended to destroy a critical
strategy contemplated and then
recommended to shareholders by the directors of appellant.
This aspect of the case
raises the particular approach adopted by the President of the
Tribunal, David Lewis in his concurring judgment
when he writes:
‘Previous decisions of the Tribunal have demonstrated sensitivity
to the prospect of merging parties structuring transactions with
the
specific intent of evading regulatory oversight and, in this way,
undermining the objectives and administration of the Act.
this has
underpinned – appropriately in my view – an expansive view f
control, a perspective endorsed by the Competition Appeal
Court. I
believe that this decision has been approached from this perspective
and am confident that it in no way represents a relaxation
of the
Tribunal’s commitment to ensure that the procedures of the Act are
respected so as to enable effective regulation of merger
activity.
However I am also of the view that this transaction has served to
highlight a second danger and that is that the management
of target
companies may well seek to use the provisions of the Competition Act
to chill hostile mergers, in effect to prevent their
own shareholders
from exercising the rights that attach to their share in the
ownership of the company in question. Hostile mergers
– red of
tooth and claw though they may be – are an important part of the
very competitive process that we are mandated to defend
and to
promote. I am, accordingly, confident that this decision does not
fall prey to entreaties that may be designed to protect
incumbent
managers from the wishes of their owners.’
If this carefully articulated approach to Chapter 3 of the Act was
designed to adopt the purposive interpretation of the Act there
can
be no quarrel. The difficulty is that section 2 of the Act which
outlines the purpose of the Act sets out a number of purposes,
including the promotion of the efficiency, adaptability and
development of the economy, the provision to consumers of competitive
prices and product choices, the promotion of employment, the
advancement of the socio economic welfare for all South Africans, the
expansion of opportunities for South African participation in world
markets and the recognition of the role of foreign competition
in the
Republic. Were the concept of hostile mergers to trump these
objectives of the Act by way of a particular interpretation
of
chapter 3, such an approach would jettison the principle of
interpretative integrity. One objective would destroy a consideration
of the balance of section 2. In any event, great care should be taken
to ensure that a purposive approach to the interpretation of
the Act
engages with the wording of the Act and its overall architecture,
rather than seeking to ignore the latter in order to promote
a
particular policy objective which is both contested and
controversial.
Conclusion.
Were first respondent to exercise its voting rights in terms of
shares acquired pursuant to the proposed notifiable merger, it could
effect a significant restructure of appellant. Were this to occur,
by means of first respondent exercising its voting rights, this
effectively constitutes an implementation of a merger in breach of
section 13 A(3). The acquisition of 34,9% of the shareholding
of
appellant would thus empower first respondent to materially influence
the strategic position of appellant and scuttle a significant
transaction contemplated by the directors of appellant as contained
in the cautionary announcement. The damage effected to appellant
in
the event that the merger was not approved could not probably be
commercially undone. In the circumstances, appellant would have
no
viable remedy available to it.
For these reasons, the
relief contained in the order as at 26 November 2004 was granted.