COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No. 27/AM/Mar00
In re: Request for Consideration of Intermediate Merger
Nasnuus, a division of Nasionale Media Limited Applicant
and
The Competition Commission of South Africa Respondent
Case No. 34/AM/Mar00
In re: Request for Consideration of Intermediate Merger
C T Media Publications (Pty) Ltd Applicant
and
The Competition Commission of South Africa Respondent
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Decision of the Competition Tribunal
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1. In this matter the Competition Commission has prohibited two mergers, one
between CT Media Publications (Pty) Limited and Caxton Publishers and Printers
Limited, and the other between Nasionale Media Limited and Penrose Holdings.
Penrose Holdongs is a subsidiary of Caxton Publishers and Printers Limited and
CT Media is a subsidiary of Nasionale Media Limited. The applicants have
requested the Tribunal to consider the prohibitions of the Commission in terms of
section 15 of the Competition Act 89 of 1998 (the Act). At the outset the
applicants indicated that they wished to raise certain procedural points
challenging the validity of the prohibitions which, if resolved in their favour,
would obviate the need for any further inquiry. Since both mergers involve the
same set of procedural facts we are deciding them together.
2. The question we have to decide is whether the Commission’s decisions to prohibit
were made within the time period required by section 14(2) of the Act. If not,
since these are intermediate mergers they are deemed to have been approved
regardless of the merits of the Commission’s decision on competition grounds. If,
however, the prohibitions were made within the period contemplated then the
Tribunal has jurisdiction to hear whether the Commission’s decisions were correct
on substantive grounds.
Background
3. In March 1999 Caxton and its subsidiary Penrose entered into two transactions
with Nasnuus, a division of Nasionale Media Limited, and its subsidiary CT
Media. The mergers involved sales of regional newspaper titles.
4. In April that year the Act was amended to provide that mergers entered into
between the date on which the Act was published (30 th October 1998) and the
date on which the Act came into effect (1 st September 1999) would be regarded
as mergers in contravention of the Act unless they had been approved by the
Competition Board in terms of the since repealed Maintenance and Promotion of
Competition Act 96 of 1979 or they had been notified to the Competition
Commission in terms of a procedure set out in item 4B of the third Schedule to
the Act. Firms electing to follow this latter procedure had until 30 November
1999 to notify the Commission of their merger.
5. The mergers in question were notified in terms of item 4B on 30 th November
1999. In terms of section 14(1) of the Act the Commission has 30 days to approve
or prohibit the merger, failing which the Commission is deemed to have approved
the merger. A proviso to section 14(1) allows the Commission within the 30 days
to extend their period of consideration by a period of up to 60 days. This the
Commission did in the present case by serving an extension certificate on the
Commission did in the present case by serving an extension certificate on the
parties on the 20 th December 1999. The Commission indicated in the extension
certificate that the period for consideration had been extended until the 27 th
February 2000. Significantly, the Commission had extended the period not by a
specified number of days but to a specified date. That date, namely the 27 th
February 2000, happened to fall on a Sunday.
6. On Monday the 28 th February at 18h00 the Commission faxed a certificate to the
merging parties indicating that they had decided to prohibit the mergers. The
applicants have asked us to reconsider these decisions.
Grounds for Consideration
7. The applicants argue that the prohibitions are ineffective because they came a day
after the Commission’s selfimposed deadline. The Commission must be deemed
to have approved the mergers in terms of section 14(2) of the Act. The applicants
also sought to rely on two other grounds for the invalidity of the purported
prohibitions but because of our decision on section 14(2) it is not necessary for us
to consider them.
8. The relevant portions of section 14 of the Act are the following:
(1) “Within 30 days after receiving notice of an intermediate merger, the
Competition Commission must either –
a) extend the period in which it has to consider the proposed
merger by a period not exceeding 60 days, and in that case,
issue an extension certificate to any party that notified it of the
merger; or
b) after considering the merger in terms of section 16 –
(i) Approve the merger by issuing a clearance
certificate;
(ii) Approve the merger subject to any condition;
(iii) Prohibit the implementation of the merger.
(2) If, upon the expiry of the 30 day period provided for in subsection (1),
the Competition Commission has not issued any of the certificates
referred to in that subsection, or upon the expiry of an extension
period contemplated in subsection (1)(a), the Commission has not
issued a certificate referred to in subsection 1(b), the Commission will
be deemed to have approved the merger, subject to subsection (5).”
9. The Commission argues that the provisions of section 14 are inapplicable to the
cases before us. They rely on two methods of time computation, one in the
Interpretation Act and one in their Rules, which in essence, say that if a time
period for the doing of an act is prescribed in days and the period expires on a
Sunday the act may validly be performed on the next day. A fortiori according to
Sunday the act may validly be performed on the next day. A fortiori according to
the Commission, although the extension period ended on the 27 th since that day
was a Sunday they were entitled to issue the prohibitions on the following day.
10. The first provision the Commission relies on is section 4 of the Interpretation Act
33 of 1957. This section provides as follows:
“When any particular number of days is prescribed for the doing of
any act, or for any other purpose, the same shall be reckoned
exclusively of the first and inclusively of the last day, unless the last
day happens to fall on a Sunday or any public holiday, in which case
the time shall be reckoned exclusively of the first day and exclusively
of the also of such Sunday or public holiday.”
11. The applicants say that the Interpretation Act applies only where the time period
is prescribed as a “particular number of days” and not a “specific date”. Had the
Commission extended the period in question by 59 days and the 59 th day was a
Sunday the Commission would have had the benefit of the Monday, as the
Interpretation Act would have applied. By naming a specific date not a specific
number of days the Commission rendered inapplicable the saving provisions of
section 4 of the Interpretation Act. At first blush this argument seems overly
formalistic. A matter of the choice of labeling has placed these mergers out of the
bounds of the Commission. But that is to misinterpret not only the ordinary
language of section 4 but also its purpose. As a matter of language it is clear that
the section applies only to time periods expressed as a numeration of days not the
denomination of a date. The clear wording is “any particular number of days” .
12. But there is more to this than mere semantics. There is a purpose in limiting the
scope of the section to time periods calculated in days. Section 4 of the
Interpretation Act is designed to obviate controversy over the counting of periods
specified in days since our law recognizes different methods of counting time 1. It
specified in days since our law recognizes different methods of counting time 1. It
does so in two ways. Firstly it specifies the method of counting to apply and
secondly it specifies when the last day may be excluded from the calculation i.e.
Sundays and public holidays. Without this guidance two people interpreting when
a period of sixty days ends might use different methods and thus come to different
conclusions.2 The Interpretation Act provides a compass so that they can reach
the same destination. These problems do not arise when a particular date is
specified. The 27 th February is the same date for all observers albeit a Sunday.
No ambiguity over its expiry can arise and hence we find the applicants are
1 See Joubert (ed) The Law of South Africa (Vol 27). The civil method of computation differs from that in
the Interpretation Act in relation to the inclusion and exclusion of the first and last days that can lead to
different results. The learned author indicates that at least six different methods are known although in
present times we recognize only four.
2 Precisely this problem occurred in this case. In their heads the Commission argued that they had
extended the period by the maximum permissible 60 days. In fact, as pointed out by the applicants in
argument, the 27 th is the 59 th day.
correct to argue that the Interpretation Act does not apply.
13. Secondly, the Commission seeks to rely on the Rules for the conduct of
Proceedings in the Competition Commission (the Commission Rules). We quote
the relevant ones below:
“4. TIME LIMITS
1) When a particular number of days is prescribed for doing an
act, the number of days must be calculated by excluding the
first day and including the last day.
2) When the time for doing an act expires on a public holiday,
Saturday or a Sunday, the act may be done on the next day
that is not a public holiday, a Saturday or a Sunday.
3) When a particular number of business days is prescribed for
doing an act, the provisions of subrule (1) apply, but public
holidays, Saturdays and Sundays must not be included in the
calculation of the time limit.
4) On good cause shown the Commissioner may condone the late
performance of an act in respect of which these rules prescribe
a time limit, other than a time limit that is binding on the
Commission itself.”
14. The applicants once again argue that these rules provide no refuge for the
Commission. Firstly, they contend that the time periods in the Rules do not apply
to periods specified in the Act. They refer us to how an analogous problem was
approached in the High Court. In several cases the Court was faced with the
question of deciding whether the time periods for the calculation of days set out in
the Supreme Court Rules, which exclude weekends and public holidays, apply to
the calculation of time periods in days set out in the Supreme Court Act. The
courts, with one exception not otherwise followed, have said they do not. The best
rationale for this is found in a decision by Didcott J, as he was then:
"The effect of ss 1 and 4 of the Interpretation Act is that the latter's
provisions govern the calculation of days prescribed for any purpose
provisions govern the calculation of days prescribed for any purpose
in other legislation which contains nothing to indicate that a different
method was meant to be employed. No such indication is to be found
in s 27 of the Supreme Court Act, of (sic) anywhere else in it. The
computation of the days specified (in) that section is therefore dictated
by s 4 of the Interpretation Act. Rule 1, on the other hand, cannot
enter the picture. It did not exist when the Supreme Court Act came
into force, or indeed before 1965. That Parliament meant one of its
own enactments to be interpreted in accordance with subordinate
legislation, is an incongruous thought. It may at least be a notionally
feasible one with reference to subordinate legislation already
operating and thus known. But it is plainly not when it is related to
the unknown and unascertainable terms of the subordinate legislation
of the future. When it passed the Supreme Court Act, Parliament
knew nothing whatsoever about the category of Court days
subsequently devised by Rule 1. It therefore could not have intended
the days that it specified in s 27 of the Act to be those. Nor is it
conceivable that they were transformed into such when Rule 1
afterwards came into operation. In the first place the power to issue
the Rules, which was derived from s 43 (2) (a) of the Act, self
evidently did not include the power to amend the Act itself. In the
second, no attempt to do this was, in fact, made. For Rule 1 applied
the definitions which it contained only to the language of the Rules
themselves. It did not purport to extend their influence any wider."
15. This approach applies equally to the relationship between the Competition Act
and the Commission Rules. The legislation here too had preceded these Rules.
There is no indication that the legislature in enacting the time periods intended
any further modification by the Rules or indeed any indication that the Rules were
intended to supplement time periods in the Act. The legislature intended the time
periods to be adhered to strictly, hence the deeming provision and the absence of
any form of condonation for the Commission in the Act. They could not have
any form of condonation for the Commission in the Act. They could not have
intended that the Commission through its rules could ameliorate the guillotine
imposed by the Act.
16. However, even if we hold that the Rules do apply they do not help the
Commission. As the applicants point out, the language in the Rules is similar to
that in the Interpretation Act, that is, it applies to time periods in which a
particular number of days is specified not as in the instant case where a specific
day is specified. Subrule 4(2) of the Commission Rules cannot be read in
isolation from the rest of the Rule. The time for doing an act must mean time
expressed in a particular number of days which is the wording used in subrule
4(1). For the same reason we rejected the Commission’s argument regarding
section 4 of the Interpretation Act their argument must fail here as well.
17. If the Commission Rules and the Interpretation Act do not assist the Commission
the common law offers less comfort. Cameron, writing in Lawsa, says:
“It is a well established general rule that the incidence of Sundays and
public holidays does not affect the effluxion of time. This applies whether
the Sundays or public holidays fall at the beginning, at the end or in the
course of running of the period.” 3
18. In Somdaka v Northern Assurance 1961(4) SA 764 (D) Henochsberg J at 769
says:
“In Craig's case, as in this case, there is nothing to indicate a clear intention
on the part of the lawgiver to depart from the ordinary civil rule of
computation, i.e., the rule that results in the period expiring on a Sunday.
The last Sunday cannot be excluded from the computation, any more than
any other Sunday can be because there is no implication that the period of
prescription is only to expire on a day when offices or places of business are
open. It is to expire at the end of a specified period and prescription is only
interrupted if summons is served before that period expires. Furthermore it
is noteworthy that Craig's case, supra, was followed in an unreported case of
de Vos v Datt , decided by DE WAAL, J.P., and GRINDLEYFERRIS, J., in
the T.P.D. in April, 1937, when the Court held that a period of six weeks
expired on Easter Monday and that an appeal set down for the following day
was out of time. De Vos's case is referred to in Herold v Clur , 1937 T.P.D. 329
at p. 333. Mr. Gurwitz sought to derive assistance from the provisions of the
Interpretation Act, but that statute cannot help him for the period in
question here is not a number of days but a period of years.”
19. In rare instances the courts have extended a time period ending on a Sunday or
public holiday to the next business day but these cases appear to turn on the fact
that the parties intended the benefit of the full time period to be extended and that
the final day was a dies non .4
20. In this case although the time period expired on a Sunday the question of
impossibility of performance on that day does not arise as it was open to the
Commission to issue its certificate on that day 5, or indeed if this was not
convenient, at anytime before that date. Furthermore, as we indicated above, this
time period was not one contractually agreed upon between parties, it was
unilaterally imposed by the Commission.
3 See Joubert (ed) The Law of South Africa (Vol 27: page 219 paragraph 248)
4 See Davis v Pretorius 1909 TS 868 where the Court extended until the next business day the obligation
of a party to make a payment where the payment according to the contract had to be made on the first
business day of each month and which in that month fell on a Sunday. Here the court was dealing with a
contractually imposed time period and could impute the extension to one contemplated by the parties. This
distinguishes that case from the instant one.
5 Since no formality for communication of its decision is set out in the Act, other than a requirement in
section 14(2) that it be “issued”, a term not defined in the Act, the transmission of a fax to the applicants
would have sufficed.
Finding
21. We find that the Commission’s purported prohibitions of the mergers are invalid.
The mergers are deemed to have been approved in terms of section 14(2). We
direct the Commission to issue clearance certificates to the parties and to
otherwise comply with Rule 33(2) of the Commission Rules.
____________ 26 May 2000
N.M. Manoim Date
Concurring: U. Bhoola, C. Qunta