THE COMPETION APPEAL COURT OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 272/CAC/JUL25
In the matter between:
PEPKOR HOLDINGS LIMITED FIRST APPLICANT
SHOPRITE HOLDINGS LIMITED SECOND APPLICANT
and
LEWIS STORES PROPRIETARY LIMITED RESPONDENT
Arising from the matter in Competition Tribunal Case No: LM106Oct24/INT038Jun25
LEWIS STORES PROPRIETARY LIMITED APPLICANT IN INTERVENTION
and
PEPKOR HOLDINGS LIMITED FIRST RESPONDENT IN INTERVENTION
SHOPRITE HOLDINGS LIMITED SECOND RESPONDENT IN INTERVENTION
COMPETITION COMMISSION THIRD RESPONDENT IN INTERVENTION
In re: the large merger proceedings between:
PEPKOR HOLDINGS LIMITED ACQUIRING FIRM
and
THE FURNITURE BUSINESS OF TARGET FIRM
SHOPRITE HOLDINGS LIMITED
(the “large merger proceedings”)
2
Heard: 29 August 2025
Order: 29 August 2025
Reasons Delivered: 3 September 2025
Summary: Competition law – suspension application – section 38(2A)(d) of the
Competition Act 89 of 1998 – whether the order of the Competition Tribunal granting
rights of intervention in merger proceedings should be suspended pending
determination of the appeal – order granted.
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___________________________________________________________________
ORDER
Suspension application of the decision of the Competition Tribunal:
1. The operation and execution of the order of the Competition Tribunal dated 23 July
2025 in case no. LM106Oct24/INT038Jun25, granting Lewis Stores (Pty) Ltd rights
of intervention in the merger proceedings between Pepkor Holdings Ltd and
Shoprite Holdings Ltd, is suspended pending the determination of th e appeal set
down for hearing on 17 September 2025.
2. The respondent, Lewis Stores (Pty) Ltd, is ordered to pay the costs of this
application, including the costs of two counsel.
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___________________________________________________________________
JUDGMENT
Masipa AJA
Background
[1] The application is brought in terms of section 38(2A)(d) of the Competition Act
89 of 1998 (the Act) for the suspension of an order of the Competition Tribunal (the
Tribunal) handed down on 23 July 2025. In terms of that order, Lewis Stores (Pty) Ltd
(Lewis) was granted wide -ranging rights of intervention in the large merger
proceedings concerning Pepkor Holdings Limited’s proposed acquisition of the
furniture business of Shoprite Holdings Limited.
[2] The merging parties (Pepkor and Shoprite) have appealed against that order in
this Court. The appeal is set down for hearing on 17 September 2025. They now seek
an interim suspension of the Tribunal’s order to prevent the premature disclosure of
their confidential and competitively sensitive information to a direct competitor. Lewis
opposes the application, contending that : the Tribunal’s order is not appealable ; the
applicants’ notice of appeal is defective ; the appeal lacks prospects of success ; and
that the merging parties undermine the rule of law by refusing immediate compliance.
Substantive Context for Intervention
[3] Lewis justified its intervention on the basis that the Commission materially erred
in its market analysis. It argued that independent and regional players were wrongly
included as competitive constraints in a national market, when in fact only three firms
– Pepkor, Shoprite Furniture, and Lewis – compete nationally. On that footing, Lewis
contended the merger was effectively a ‘3-to-2 merger ’ likely to result in unilateral
effects. It relied on the Tribunal’s ruling in JD Group Ltd v Ellerine Holdings Ltd.1 Lewis
further alleged that the Commission understated the merging parties’ market shares,
and that the merger’s rationale was to give Pepkor scale to exercise buyer power over
1 JD Group Ltd/Ellerine Holdings Ltd Tribunal Case No. 78/LM/JUL01 (Competition Tribunal, 28 January
2002) paras 111–112.
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suppliers. It also raised public interest concerns, including adverse effects on
employment and the participation of historically disadvantaged persons (HDPs).
[4] The merging parties countered that Lewis’s reliance on JD Group/Ellerines was
outdated, and that more recent jurisprudence, such as TFG Furnishings (Pty) Ltd v
Tapestry Home Brands (Pty) Ltd,2 supported a broader approach to market definition,
considering consumer behaviour and local contestability. They argued that the market
is fragmented and contested, and that Lewis’s intervention was an opportunistic
attempt to frustrate the merger ahead of peak trading. These competing submissions
underscore the substantive stakes of the appeal. By granting Lewis plenary rights, the
Tribunal effectively enabled it to relitigate the Commission’s entire market analysis.
That strengthens the applicants’ case that the Tribuna l misdirected itself by
outsourcing the Commission’s statutory mandate.
The Legal Framework
[5] Section 38(2A)(d) of the Act empowers a judge of this Court to suspend the
operation and execution of the Tribunal’s order that is the subject of a review or appeal.
This Court in Glaxo Wellcome (Pty) Ltd v Terblanche 3 and Community Healthcare
Holdings v Competition Tribunal4 held that suspension is discretionary power and must
be exercised judicially with reference to: (i) whether an appeal is pending; (ii) the
prospects of success; (iii) the balance of convenience; and (iv) the interests of justice.
Appealability
[6] The first hurdle is whether the Tribunal’s order is appealable. At common law,
the touchstone was Zweni v Minister of Law and Order (Zweni).5 It held that f or an
order to be appealable it has to (i) be final in effect; (ii) be definitive of the rights of the
parties; and (iii) dispose of a substantial portion of the relief claimed. This Court
adopted that restrictive approach in Telkom SA Ltd v Orion Cellular (Pty) Ltd,6 holding
adopted that restrictive approach in Telkom SA Ltd v Orion Cellular (Pty) Ltd,6 holding
that interim rulings by the Tribunal lacked the necessary finality to be appealable.
2 TFG Furnishings (Pty) Ltd v Tapestry Home Brands (Pty) Ltd [2022] 2 CPLR (CT) paras 97–101.
3 Glaxo Wellcome (Pty) Ltd and Others v Terblanche (04/CAC/OCT00, 4 December 2000).
4 Community Healthcare Holdings (Pty) Ltd v Competition Tribunal and Others [2006] 2 CPLR 431
(CAC).
5 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J–533B.
6 Telkom SA Ltd v Orion Cellular (Pty) Ltd (41/CAC/MAY05) [2006] ZACAC 3 para 23.
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[7] However, the Constitutional Court in United Democratic Movement and Another
v Lebashe Investment Group (Pty) Ltd and Others (Lebashe)7 decisively shifted the
ground. It held that the question is no longer whether an order meets the Zweni criteria
but whether the interests of justice warrant appellate scrutiny. This Court has since
applied Lebashe in Competition Commission v Bank of America Merrill Lynch
International and Others .8 It confirmed that even rulings that are not ‘final’ may be
appealable if justice so requires, particularly where they bear on the integrity or
structure of proceedings. The competition jurisprudence on intervention reinforces
this. In African Data Centres SA Development (Pty) Ltd v Digital Titan (Pty) Ltd ,9 the
Court stressed that intervention must be circumscribed to assist the Tribunal without
displacing the statutory mandate of the Commission. Similarly, in Caxton and CTP
Publishers and Printers Ltd v Naspers Ltd ,10 intervention was recognised as
permissible but only within limits tethered to the intervenor’s theory of harm.
[8] Against this backdrop, the Tribunal’s order in the present case is plainly
appealable. It is not a minor procedural ruling: it fundamentally alters the nature of the
merger proceedings by granting Lewis comprehensive rights – including access to
confidential records, discovery, subpoena powers, cross -examination, and expert
evidence – effectively equating it to a statutory authorit y. An order of such
consequence cannot be shielded from appellate oversight. The interests of justice
require that it be appealable.
Prospects of Success
[10] The merging parties contend that the Tribunal erred by conferring on Lewis
rights indistinguishable from those of the Commission, untethered to any defined
theory of harm. As African Data Centres and Caxton make clear, intervention must be
tailored: it may supplement, but not supplant, the Commission’s investigative role. On
tailored: it may supplement, but not supplant, the Commission’s investigative role. On
7 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022]
ZACC 34; 2022 (12) BCLR 1521 (CC) paras 43–44.
8 Competition Commission of South Africa v Bank of America Merrill Lynch International Ltd and Others
[2024] 1 CPLR 1 (CAC) paras 22–24.
9 African Data Centres SA Development (Pty) Ltd v Digital Titan (Pty) Ltd [2022] ZACAC 6 ; [2022] 2
CPLR 21 (CAC) paras 14–15.
10 Caxton & CTP Publishers and Printers Ltd v Naspers Ltd (72/CAC/AUG07) [2009] ZACAC 3 paras
24–26.
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these grounds, I am of the view that the appeal enjoys reasonable prospects of
success.
Prejudice and Balance of Convenience
[11] If suspension is refused, the applicants’ confidential and competitively sensitive
information will be disclosed to advisers of a direct competitor. Such disclosure is
irreversible: knowledge once acquired cannot be erased. Lewis contends that
confidentiality undertakings suffice. But undertakings cannot neutralise the
competitive harm from premature disclosure.
[12] By contrast, Lewis suffers little prejudice from suspension. The merger
timetable has not yet been set, and the appeal will be heard within weeks. The
inconvenience of delayed preparation is marginal compared to the irreversible
prejudice risked by disclosure. The balance of convenience thus favours suspension.
Interests of Justice
[13] The appeal raises systemic issues: the permissible scope of intervention, the
treatment of confidential information, and the balance between transparency and
protection in merger control. Preserving the status quo until these issues are resolved
serves the interests of justice.
The Rule of Law
[14] Lewis submits that the applicants’ resistance to immediate compliance
undermines the rule of law. That argument is misplaced. Section 38(2A)(d) expressly
provides for suspension applications. By invoking it, the merging parties vindicate the
rule of law rather than defy it. To compel compliance regardless of a pending and
arguable appeal would render the suspension mechanism nugatory.
Costs
[15] As a result, the merging parties have been successful. Lewis’s opposition was
not justified. Therefore, costs must follow the result . The merging parties sought to
amend their prayer s for costs, which initially only sought costs for one counsel , to
include two counsel. This was not opposed by Lewis, who were also represented by
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APPEARANCES
For the 1st and 2nd Applicants: M Le Roux SC, S Quinn and K-K Gwaza
Instructed by: Webber Wentzel and DLA Piper Advisory Services
For the Respondent: W Trengove SC and S Pudifin-Jones
Instructed by: Nortons Incorporated