COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No.: LM148Dec21 / CNF 119 Nov 23
In the matter between:
VODACOM PROPRIETARY LIMITED First Applicant
BUSINESS VENTURE INVESTMENTS NO
2213 PROPRIETARY LIMITED Second Applicant
And
FROGFOOT NETWORKS PROPRIETARY LIMITED First Respondent
THE COMPETITION COMMISSION OF SOUTH AFRICA Second Respondent
In re the large merger between:
VODACOM PROPRIETARY LIMITED Primary Acquiring Firm
And
BUSINESS VENTURE INVESTMENTS NO
2213 PROPRIETARY LIMITED Primary Target Firm
ORDER
Having heard counsel for the merging parties and the first respondent, Frogfoot
Networks Proprietary Limited (“Frogfoot”), the Competition Tribunal orders as follows:
1. “Access”, for purposes of this order, means the provision of copies of
Frogfoot's data and documents, and of the relevant paragraphs of the
Competition Commission’s referral, to the merger parties' external legal
representatives and independent economic experts (“independent advisors”)
for use at their own offices and at the Competition Tribunal. Copies of any
Excel documents must be provided in open-file electronic format.
2. Frogfoot is ordered to provide the merger parties' independent
advisors who have signed confidentiality undertakings in the form attached to
the application (ALG3) with access to all the information contained in, referred
to, or relied upon in the Competition Commission’s merger report that is
claimed as confidential by Frogfoot; and to permit the Competition Commission
to provide such independent advisors with access to unredacted copies of all
paragraphs in its merger report containing such information.
3. In respect of all information claimed as confidential by Frogfoot that
does not fall within 2 above, the following regime will apply:
3.1. Subject to the provision of confidentiality undertakings, Frogfoot
will make available for inspection to the merger parties’ independent
advisors, all such information.
3.2. The information referred to in paragraph 3.1 above shall be:
3.2.1 in unredacted form, with the merger parties’ independent
advisors having unrestricted rights of inspection and the right to
take notes;
3.2.2 available for inspection for a sufficient period of time to
enable the merger parties’ independent advisors to engage
meaningfully with the information and to determine its relevance
to the merger proceedings;
3.2.3 available in hard copy or in soft copy, as required by the
merger parties’ independent advisors; and
3.2.4 made available by Frogfoot for inspection in
Johannesburg, Stellenbosch and in London.
3.3. Following the exercise by the merger parties’ independent
advisors of the unrestricted inspection rights referred to above, such
advisors shall identify the information (if any) to which they require
access (as defined above) and state why access is required.
3.4. Frogfoot undertakes to consider any such request in good faith
and shall indicate within five business days upon receipt of any such
request whether or not it is willing to provide the merger parties’
independent advisors with access to the information in question.
3.5. Insofar as Frogfoot is willing to provide the merger parties’
independent advisors with access to all or any of the information in
question, they shall immediately permit the Competition Commission to
provide such advisors with access to the relevant information.
3.6. Insofar as Frogfoot is not willing to provide the merger parties’
independent advisors with access to all or any of the information in
question, Frogfoot shall provide the reasons for its refusal within five
business days upon receipt of any such request for access from the
merger parties.
3.7. The merger parties shall be entitled to approach the Competition
Tribunal on an urgent basis in order to seek such access.
4. There is no order as to costs.
Presiding Member 5 February 2024
Mr Andreas Wessels Date
Concurring: Prof Thando Vilakazi and Ms Anisa Kessery
Tribunal case managers: Theodora Michaletos and Sinethemba Mbeki
For the First and Second
Applicants: Adv Jerome Wilson SC assisted by Adv Duncan
Turner, Adv Phumlani Ngcongo, and Adv Lerato
Zikalala instructed by Andries Le Grange of
Cliffe Dekker Hofmeyr Inc and Janine Simpson
of DLA Piper
For the First Respondent: Adv Shannon Quinn instructed by Michael-
James Currie of Primerio International
For the Commission: Candice Slump, Mpumi Tshabalala, Omphemetse
Kgaladi and Tshegofatso Koma