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COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No.: LM148Dec21 / CNF120Nov23
In the matter between:
VODACOM PROPRIETARY LIMITED First Applicant
BUSINESS VENTURE INVESTMENTS NO
2213 PROPRIETARY LIMITED Second Applicant
And
VOX TELECOMMUNICATIONS 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, Vox
Telecommunications Proprietary Limited (“Vox”), the Competition Tribunal orders as
follows:
1. “Access”, for purposes of this order, means the provision of copies of
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Vox’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. Vox 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 Vox; 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 except for Vox’s
information
contained in paragraph 376 and the letter dated 21 March
2022 referred to in footnote 443 of paragraph 376 of the Competition Commission’s
merger report.
3. In respect of the information contained in paragraph 376 and the letter
dated 21 March 2022, Vox must furnish a version redacting the information
that it considers highly competitively sensitive information and which it alleges
must be subject to limited access as set out in paragraph 4 below. Access
must be provided to the redacted version of paragraph 376 of the
Commission’s merger report and the letter dated 21 March 2022.
4. In respect of all information claimed as confidential by Vox that does
not fall within paragraph 2 above, including the redacted information contained
in paragraph 376 and the letter dated 21 March 2022, the following regime will
apply:
4.1 Subject to the provision of confidentiality undertakings, Vox will
make available for inspection to the merger parties’ independent
advisors, all such information.
4.2 The information referred to in paragraph 4.1 above shall be:
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4.2.1 in unredacted form, with the merger parties’ independent
advisors having unrestricted rights of inspection and the right to
take notes;
4.2.2 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;
4.2.3 available in hard copy or in soft copy, as required by the
merger parties’ independent advisors; and
4.2.4 made available by Vox for inspection in Johannesburg,
Stellenbosch and in London.
4.3 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.
4.4 Vox 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.
4.5 Insofar as Vox 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.
4.6 Insofar as Vox is not willing to provide the merger parties’
independent advisors with access to all or any of the information in
question, Vox shall provide the reasons for its refusal within five
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business days upon receipt of any such request for access from the
merger parties.
4.7 The merger parties shall be entitled to approach the Competition
Tribunal on an urgent basis in order to seek such access.
5. 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 John
Oxman of Primerio International
For the Commission: Candice Slump, Mpumi Tshabalala,
Omphemetse Kgaladi and Tshegofatso
Koma