COMPETITION TRIBUNAL REPUBLIC OF SOUTH AFRICA
Case No.: LM157Dec23
In the matter between:
Prax South Africa (Pty) Ltd Primary Acquiring Firm
And
National Petroleum Refiners of South Africa (Pty) Ltd Primary Target Firm
Panel: L Mncube (Presiding Member)
M Mazwai (Tribunal Member)
I Valodia (Tribunal Member)
Heard on: 18 June 2024
Decided on: 21 June 2024
ORDER
Further to the recommendation of the Competition Commission in terms of section
14A(1)(b)(ii) of the Competition Act, 1998 (“the Act”) the Competition Tribunal orders
that–
1. the merger between the abovementioned parties be approved subject to
the conditions set out in “ Annexure A ” in terms of section 16(2)(b) of the Act;
and
2. a Merger Clearance Certificate be issued in terms of Competition Tribunal
Rule 35(5)(a).
Presiding Member 21 June 2024
Prof. Liberty Mncube Date
Concurring: Ms Mondo Mazwai and Prof. Imraan Valodia
ANNEXURE A
PRAX SOUTH AFRICA PROPRIETARY LIMITED
AND
NATIONAL PETROLEUM REFINERS OF SOUTH AFRICA PROPRIETARY LIMITED
CASE NUMBER: LM157Dec23
CONDITIONS
1. DEFINITIONS
The following expressions shall bear the meanings assigned to them below, and
cognate expressions bear corresponding meanings –
1.1 "Acquiring Firm" means Prax South Africa Proprietary Limited;
1.2 "Approval Date " means the date referred to on the Commission's
merger clearance certificate (Form CC 15), being the date on which the
Merger is approved in terms of the Competition Act;
1.3 "Commission" means the Competition Commission of South Africa, a
statutory body established in terms of section 19 of the Competition Act;
1.4 "Competition Rules" means the Rules for the Conduct of Proceedings in
the Commission;
1.5 "Competition Act" means the Competition Act, 89 of 1998, as
amended;
1.6 "Conditions" mean these conditions;
1.7 "Days" means any calendar day other than a Saturday, a Sunday or
an official public holiday in South Africa;
1.8 "HDP" means a historically disadvantaged person as defined in section
3(2) of the Competition Act;
1.9 "Implementation Date" means the date, occurring after the Approval
Date, on which the Merger is implemented by the Merging Parties;
1.10 "Merged Entity " means the Target Firm subject to the control of the
Acquiring Firm following the Implementation Date;
1.11 "Merger" means the proposed acquisition by the Acquiring Firm of
36.36% of the issued ordinary share capital of the Target Firm;
1.12 "Merger Parties" means the Acquiring Firm and the Target Firm;
1.13 "Target Firm" means National Petroleum Refiners of South Africa
Proprietary Limited; and
1.14 "Tribunal" means the Competition Tribunal of South Africa, a statutory
body established in terms of section 26 of the Competition Act.
2. HDP TRANSACTION(S)
Within 24 (twenty-four) months of the Implementation Date, the Acquiring Firm shall
conclude and implement a transaction in terms of which one or more HDPs and/or a
trust intended for the benefit of HDPs will subscribe for, or will acquire, no less than
25% (twenty-five percent) of the issued share capital of the Acquiring Firm.
3. CAPITAL EXPENDITURE
The Acquiring Firm, in its capacity as a minority shareholder in the Target Firm,
commits to support the Target Firm’s operational capital expenditure requirements,
at a minimum value of […] over a period of not less than […] from the date of
implementation of the Proposed Transaction, on the understanding that the Target
Firm’s shareholder support is procured on a proportional shareholding basis.
4. MONITORING OF COMPLIANCE WITH THE CONDITIONS
4.1 The Merged Entity shall inform the Commission in writing of the
Implementation Date within 5 (five) Days of the Implementation Date.
4.2 Within 10 (ten) Days of the determination of the HDP transaction set out
in clause 2, the Acquiring Firm shall provide the Commission with the
following details in relation to the HDP(s) involved, namely: (i) the identity of
the HDP; (ii) evidence that the HDP is
appropriately classified as an HDP; (iii)
confirmation of the proportion of shareholding in the Acquiring Firm that the
HDP will acquire; and (iv) confirmation of whether the transaction constitutes
a merger for the purposes of the Competition Act.
4.3 Within 30 (thirty) Days of receipt of the details of the HDP transaction in
clause 2, the Commission shall review and provide the Acquiring Firm's
representative with any comments or queries in relation to the empowerment
transaction, in writing.
4.4 For the avoidance of doubt, the HDP transaction in clause 2 may not be
implemented prior to the Commission’s written approval, which approval shall
not be unreasonably withheld or delayed.
4.5 For the avoidance of further doubt, to the extent that the HDP transaction
in clause 2 also constitutes a merger as defined in the Act (and the
thresholds for mandatory notification are met), the HDP transaction can then
only be implemented once same has been notified to the Commission as a
merger and approved with or without conditions.
4.6 The Acquiring Firm shall, within 30 (thirty) days of the implementation of
the HDP transaction contemplated in clause 2, provide the Commission with
an affidavit attested to by a senior official of the Acquiring Firm, confirming the
Acquiring Firm's compliance with the Conditions.
4.7 The Merged Firm shall, within 30 (thirty) Days of the first anniversary of the
Implementation Date and for a period of [ …] thereafter submit to the
Commission a written report detailing compliance with Clause 3 of these
Conditions. The report shall be accompanied by an affidavit from a senior
official attesting to the correctness of the report.
4.8 The Commission may request such additional information from the
Merger Parties, which the Commission may, from time to time, deem
necessary for purposes of monitoring the extent of compliance with these
Conditions.
5. APPARENT BREACH
Should the Commission receive any complaint in relation to non- compliance with
the above Conditions or otherwise determine that there has been an apparent breach
by the Merger Parties of these Conditions, the breach shall be dealt with in terms of
Rule 39 of the Commission Rules.
6. VARIATION OF CONDITIONS
The Merger Parties may at any time, on good cause shown, apply to the
Commission for the Conditions to be lifted, revised, or amended. Should a dispute
arise in relation to the variation of the Conditions, the Merger Parties shall apply to
the Tribunal, on good cause shown, for the Conditions to be lifted, revised, or
amended.
7. GENERAL
All correspondence concerning these Conditions must be submitted to the following
email address: mergerconditions@compcom.co.za and ministry@thedtic.gov.za.