COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: 54/LM/Sep01
In the large merger between:
TWO RIVERS PLATINUM LIMITED
and
ASSMANG LIMITED
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Reasons for decision
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APPROVAL
1. On 15 November 2001 the Competition Tribunal issued a Merger
Clearance Certificate approving the large merger between Two Rivers
Platinum Limited (Two Rivers) and Assmang Limited (Assmang)
without conditions. We set out the reasons for our approval of the
merger below.
BACKGROUND
The Parties
2. The acquiring firm in this transaction is Two Rivers, a joint venture
company between Impala Platinum (Implats) and Anglovaal Mining
Limited (Avmin). Two Rivers was formed to bid for the rights (then
owned by Assmang) to the Platinum Group Metals (PGMs) and certain
other surface rights in the farm Dwars Rivier in the Province of
Mpumalanga. 1 Two Rivers won the bid for these mineral rights.
3. Implats is an investment holding public company listed in the platinum
sector on the JSE. Through its various subsidiaries Implats is primarily
involved in the mining, refining and marketing of PGMs, nickel and
1 In terms of the sale agreement Two Rivers is granted rights to mine platinum, palladium, rhodium,
ruthenium, iridium and osmium – the socalled PGMs – as well as silver and gold and the ores thereof.
1
copper. The mining, refining and marketing of PGMs forms by far the
largest part of Implats business. Implats is the only company providing
PGM refinery services to independent PGM mining companies that are
not part of its stable – the refining capacity of other large players in the
PGM market is dedicated to refining the output of their own mines.
4. Avmin is a JSElisted public company whose business is to explore,
develop, operate and hold interests in the mining and minerals
industry. Through a number of subsidiaries it develops and operates
mineralrelated assets and projects in the precious, base and ferrous
metals industries in Southern Africa. Avmin has a controlling interest in
the target firm, Assmang, through its 50,35% shareholding therein. 2
5. In terms of the Two Rivers’ Shareholders Agreement Avmin holds 55%
of the shares and Implats, the other 45%. The shareholders’
contribution to the financing of the Two Rivers joint venture is pro rata
to their respective shareholdings. Avmin and Implats have also entered
into management and marketing agreements whereby Avmin was
appointed manager and sole marketing agent of Two Rivers. Two
Rivers has also signed a Purchase, Sale and Tolling of Metals
Agreement with Impala Refining Services Limited (IRS), a wholly
owned subsidiary of Implats. In terms of this agreement, which shall
endure for the life of the mine at Dwars Rivier, Two Rivers is obliged to
sell and supply its PGMs and base minerals for toll refining to IRS.
6. The target firm, Assmang, is part of the Avmin group Avmin has a
direct shareholding of 50,35% in Assmang. Assmang mines chrome,
iron and manganese in South Africa directly and through various
subsidiaries. In 1998 Assmang bought the Dwars Rivier property,
which is the subject of this merger, with the intention of mining chrome
which is the subject of this merger, with the intention of mining chrome
ore, but incidentally also acquired PGM rights in the property. Assmang
does not mine PGMs and does not wish to do so.
Rationale for transaction
7. This transaction will enable Assmang to realize the value contained in
the rights it holds over the mining of PGMs on the Dwars Rivier
property. It appears that Assmang’s decision to dispose of these rights
was, in part, prompted by the “use it or lose it” principle introduced by
the Minerals Development Bill which provides that old order rights will
lapse if no prospecting or mining rights are granted within a year of the
Bill being enacted. The capital expenditure to mine and refine PGMs is
very high. Avmin, for its part, does not possess the requisite
infrastructure, skills or expertise to mine and refine PGMs and so has
2 Avmin also has 90% interest in a Zambian company Chambishi Metals and a 75% interest in the
Nkomati Joint Venture.
2
elected to undertake this activity in a joint venture with an experienced
partner. Avmin will however assume management responsibility for the
mining operation although the highly capital and skill intensive refining
stage will be handled by an Implats’ subsidiary. Note however that
Avmin has made conflicting claims regarding its overall strategy with
respect to the platinum market. On the one hand it insists that it views
this transaction as a means of entering the PGM market. On the other
hand, it presents this transaction as a commercially viable opportunity
incidental to its subsidiary’s, Assmang, acquisition of the right to mine
chrome on the property in question and thus not expressive of a
broader interest in competing in this segment of the mining industry.
8. As noted above, Two Rivers won the bid to purchase Assmang’s PGM
mineral rights. We have been presented with evidence demonstrating
that Avmin’s controlling stake in Assmang notwithstanding, the bidding
process was at arms length – in particular Avmin’s nominees on the
Assmang board recused themselves from the process to avoid a
conflict of interest.
9. Implats’ interest in this transaction is partly inspired by its desire to
make more efficient use of its considerable processing and refining
infrastructure. Implats has, it appears, focused its competitive strategy
on enhancing the productivity of its refining operation, a strategy that, it
avers, has borne considerable fruit. It claims that its refining operation
is the most efficient in the industry. However, over the medium to long
term this strategy is, it claims, threatened by its weak reserves of
PGMs particularly relative to Angloplats, the other major South African
participant in this market. It has accordingly embarked on a deliberate
strategy of either acquiring additional rights to mine and refine PGMs or
strategy of either acquiring additional rights to mine and refine PGMs or
it has entered into arrangements – socalled ‘toll refining’ agreements –
with those holders of PGM rights who do not possess their own refining
capacity. Indeed it appears that Implats is not much engaged in
prospecting but rather maintains a careful watch over prospecting
activity across the world with a view to furthering its ability to acquire
the mineral rights originally staked by others or to toll refine PGMs
mined by others.
THE RELEVANT MARKET
10. Platinum group metals – PGMs – comprise platinum, palladium,
rhodium, ruthenium, iridium and osmium. The properties of this group
of metals are such that substitution of PGMs with metals outside of this
group is not commercially or technically viable over an important range
of uses. There is a certain degree of substitutability between the
members of the PGM. However the 1996 European Commission report
on the proposed merger of the platinum interests of Gencor (viz.
3
Implats) and Lonrho (viz. LPD) (henceforth ‘the GencorLonrho report’)
found that PGMs do not constitute a single relevant market but rather
six relevant market each comprising the various members of the
platinum group of metals. 3 Although subsequent developments may
indicate a greater degree of substitutability between platinum and
palladium in the manufacture of autocatalysts than that suggested in
the EC report, we are confident that the relevant markets identified by
the European Commission remain valid.
11. Although the range of PGMs is implicated in this transaction we will, by
and large, restrict our comments to platinum itself. It is here that
Implats is most active indeed South African PGM ores are particularly
richly endowed in platinum. Hence while Russian producers have a
strong presence in the mining of PGMs generally they appear, because
of the character of their ore bodies, to hold a particularly strong position
in palladium. Stillwater, the US PGM mining and refining company
active in the US, also mines ores richly endowed in palladium. 4 Hence,
of the six relevant markets identified above, it is the platinum market
that is particularly implicated by this transaction.
12. As noted above there is a degree of substitutability within the PGM
range of metals. For example, both platinum and palladium are
extensively used in the manufacture of autocatalysts, an important
market for PGMs, although this substitutability does not extend to other
important markets, for example jewellery. We repeat then the six
relevant product markets correspond to the members of the PGM and
our analysis will focus on one of these – the market for platinum. 5
3 Commission Decision of the 24 April 1996 declaring a concentration to be incompatible with the
common market and the functioning of the EEA Agreement (Case No IV/M.619 – Gencor/Lonrho).
Note that we shall refer to this report at other points in this decision. The EC report is particularly
apposite because both analyses deal with the same geographical market populated by the same
participants.
4 See GencorLonrho Para 80: ‘The individual PGM metals are produced in fixed ratios, determined by
nature, which depends on the particular ore body. Indications from official sources are that the ratio of
platinum/palladium/rhodium is about 100:42:21 at the Merensky reef and 100:83:54 at the UG2 reef.
In other countries palladium occurs in higher concentrations relative to platinum. In the main Russian
mine, in Noril’sk, the ration is about 100:284:16, at the American mine in Stillwater 100:350:73 and at
the Canadian mine in Sudbury 100:110:73. This production structure often results in some stocking or
oversupply of the minor metals. It also means that palladium makes up a larger part of Russian
production than platinum. However, in the South Africa mines platinum is by far the most important
metal which accounts for more than 80% of the sales revenue.’
5 Note an August 2001 Schroder Salomon Smith Barney report on precious metals: ‘On the question of
substitution potential within the PGM group, in simplistic terms, autocatalysts address three different
emissions – carbon monoxide (platinum best for that); hydrocarbons (palladium best for that); and nox
(rhodium best for that). Future autocatalysts are therefore likely to need all three in different
combinations. Mix will be affected to some degree by current prices ( ie if PD becomes very
competitive) but automakers are also concerned about longerterm supply issues and price volatility.
The reality is that for technical reasons, platinum is the only possible choice for diesel catalysts. So a
number of industry players are now suggesting demand within five years could more closely replicate
the production profile of the SA mines (ie 60%Pt; 30% PD; 10% Rhodium).’
4
13. The GencorLonrho report includes a careful analysis of the platinum
market. It’s conclusions are worth citing at length and speak for
themselves:
‘The portion of platinum demand accounted for by industrial
processes and autocatalysts is priceinelastic, probably with a
very low price elasticity, since there are basically no substitutes
for platinum for these purposes, apart from limited substitution
possibilities between platinum and palladium for certain types of
autocatalysts. The price elasticity for jewellery demand on the
Japanese market was found to be priceinelastic with an
elasticity of –0,6. Since autocatalysts and industrial processes
account for about 51% of the market, and the Japanese
jewellery market for about 34%, this means that the price
elasticity of 85% of the global platinum market is highly inelastic.
The remaining 15% of demand is for jewellery outside Japan
(5%) and investment (10%). The jewellery market outside
Japan is likely to have an inelastic demand, since platinum
jewellery is a special, upmarket product. Furthermore, the
effect of investment demand, on overall price elasticity, is
limited. All in all, it can therefore be concluded that the price
elasticity for the total market is inelastic (numerically smaller
than 1).’ 6
14. We recognise that these conclusions are based on research concluded
some 8 years ago. However, little has changed since then certainly,
the overall composition of demand is unchanged. As noted the degree
of substitutability of palladium for platinum in certain autocatalysts
appears somewhat greater than predicted in the GencorLonrho report
but even in this limited area the tide – driven largely, it appears, by
technical considerations – seems to be turning platinum’s way once
technical considerations – seems to be turning platinum’s way once
again. The GencorLonrho report appropriately qualifies its conclusions
with the observation that the demand for platinum is only priceinelastic
over its current price range. Against that, though, it is clear that, even in
response to significant price swings, the possibilities for substitution are
highly limited even over the medium term and particularly for platinum’s
industrial applications. Nevertheless this may seem an important
qualifier in the case of a volatile commodity market – as we shall show
the present transaction may be seen as part of a strategic approach
that is precisely intended to check price volatility through control of
supply.
15. South Africa, as already noted, is particularly richly endowed in PGMs
6 GencorLonrho Para 56.
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and South Africa ore bodies are particularly richly endowed in platinum.
This has enabled South African based companies – notably, although
not exclusively, Implats and Angloplats – to assume a dominant
position in the mining and refining of platinum. Lonmin, a British owned
participant in the PGM market also controls a significant share of the
mining and refining of PGMs in South Africa. Russia is the other area in
which PGMs are extensively mined. PGMs are also actively mined in
the US and Canada.
16. PGMs are homogenous products with no apparent barriers to
international trade. 7 While it appears that mining activities are
generally served by refineries located in the countries in which the
PGMs are mined (this accounting for the strong position of South
African companies in the refining of PGMs) we are not aware of any
insurmountable barriers to exporting the raw material resource from
countries where no refining capacity is located to those countries in
which established refining capacity is located. Indeed, according to
Schroder Salamon Smith Barney, Implats – the only PGM company
engaged in refining mining output belonging to independent PGM
mining companies – refines, at its South African refinery, the metals of
twenty groups from five continents.
17. Accordingly the geographic market for the mining and refining of PGMs
is international. This view is supported, although not necessarily
determined, by the existence of internationally quoted prices for PGMs.
18. World shares of the platinum market are calculated by measuring
shares of the refined product. Data submitted by the parties gives
Angloplats a 32% share of refined platinum in 2000, projected to
Angloplats a 32% share of refined platinum in 2000, projected to
increase to 39% in 2006. Implats share in 2000 is 18%, 17% of which
is attributable to ore extracted from mines which it owns – the
remaining 1% is refined from the independently owned Kroondal
resource. Implats’s share is projected to increase to 23% in 2006.
However by this later date only 15% of Implats’ share is expected to
derive from Implats’ mines with the remainder attributable to toll
refining agreements. This includes output from Two Rivers which is
expected to account for approximately 6% of Implats’ refined output or
slightly over 1% of world output. Note however that Implats may have
significantly understated its share because of its stake in Lonmin –
henceforth referred to as LPD a UK registered company accounts
whose South Africanbased mining and refining activities accounts for
11% of world output. Implats owns a 27% share in LPD and is party to
a shareholders agreement which appears to give it significant influence
over this company. For the purposes of this transaction, LPD’s output
7 ‘ PGMs are fungible assets, are easily transported, are refined to the same purity standards throughout
the world and readily traded without tariff barriers. PGMs are sold on a worldwide basis either under
longterm contracts or on the metal market’ (GencorLonrho para 68).
6
is counted as part of Implat’s output which increases its 2000 share
from 18% to 29% and its projected share in 2006 from 23% to slightly
under 32%. Note that LPD refines it own mined output and does not, it
appears, engage in any toll refining. Implats’ stake in LPD not only
increases the former’s effective market share but, as we shall elaborate
below, also evidences widespread cooperation amongst the
participants in the market for mining and refining PGMs.
THE IMPACT ON COMPETITION
19. This transaction has both a horizontal and a vertical dimension.
Implats, an established miner and refiner of PGMs is acquiring, jointly
with Avmin, the right to mine the PGM resources previously owned by
Assmang. This gives the transaction its horizontal dimension. The
transaction may also be viewed as an act of backward integration by a
refiner acquiring additional sources of input. This provides a vertical
dimension to the contract.
20. The market in question is highly concentrated. The two largest South
African producers stand astride the world market, the more so if, as for
the purpose of evaluating this transaction, the Implats and LPD market
shares are consolidated. Moreover the two largest companies –
Angloplats and Implats are clearly taking steps to consolidate their
powerful position in the world market. Angloplats has a massive ore
reserve and is in the process of establishing a second refinery in South
Africa. Implats, on the other hand, is clearly intent upon improving the
efficiency of its refining operations and on building relations with
independent miners who will constitute an increasing source of input
into its refinery.
21. Implats avers that there is no price competition in the market for PGMs
– price, they argue, is determined by ‘supply and demand’ conditions
on the world market in which all the participants are mere price takers.
on the world market in which all the participants are mere price takers.
Although it appears that the lion’s share of world trade is conducted
through the medium of long term contracts it appears that the principal
objective of these contracts is to provide the purchasers with security of
supply. Price, in the long term contracts, is effectively derived from the
world price prevailing at the delivery dates stipulated in the contracts.
22. The parties nevertheless insist that the market is characterised by
intense competition. In the absence of price competition the efficiency
of the operations of the participants in the market constitutes the basis
for this competition – ‘the profitability of PGM mining’ claim the parties,
‘depends on the margin achieved between the cost of production and
the current market price from time to time’.
7
23. We are urged to view this transaction as procompetitive. First, it is
pointed out that Avmin, through its participation in the Two Rivers joint
venture, is a new entrant into the market. We do not accept this
argument. Firstly, there is no evidence that Avmin intends participating
actively in this market – certainly there is no evidence that Avmin
intends to expand in this market. Its entry into the platinum market is
manifestly incidental to its other mining activities. Moreover, while
Avmin clearly participates in the joint venture, from a competition
perspective the most salient aspect of the JV is not the fact that one of
the partners has not hitherto been active in the relevant market, but
rather that the other member of the JV is the second largest producer
of PGMs in the world and that it will assume ownership of the output of
the JV from the point at which the output of the mine is sold to the
Implats owned refinery.
24. Secondly, the parties aver that, in the absence of transactions of this
nature – whereby Implats acquires access to a platinum resource –
Angloplats, with its huge reserves, will occupy an increasingly large
share of the market. This argument is more credible although, as we
shall demonstrate below, it is somewhat undermined by evidence
suggesting that cooperation, rather than competition, characterises the
relationship between Angloplats and Implats.
25. We are enjoined by the Act to determine whether or not the
transaction substantially lessens competition. The transaction is
clearly part of a pattern of acquisitions of PGM mineral rights by
Implats. Indeed the acquisition of assets like Two Rivers is, together
with efforts to enhance the efficiency of the refining operations, a pillar
with efforts to enhance the efficiency of the refining operations, a pillar
of Implats’ growth strategy. Each of the targets is, relative to the size of
the international market for PGMs, usually small, adding, at most, one
or two percentage points to Implats share of the current and projected
future market. Viewed collectively, however, these small transactions
are the mechanism that, together with Angloplats’ bountiful reserves,
account for steadily increasing concentration levels in the market for
PGMs.
26. Is this ground for concern? As already indicated we have considered
Implats’ argument that holds that these acquisitions are necessary if it
is to continue to offer competition to Angloplats. However, although on
the face of it not without merit, this argument is weakened by the
exclusionary impact of these successive transactions and by evidence
that suggests that cooperation rather than competition best describes
the relationship between the major participants in this market.
27. This pattern of transactions is exclusionary to the extent that it
discourages independent producers from establishing additional
8
refining capacity. New refining capacity is costly to establish and must
be established at minimum efficient scale. It must also have an
assured supply of ore. Given that the mined raw material resource is
committed to inhouse refineries (as in the case of Angloplats and LPD
as well as a large proportion of the mined output of Implats) and the
independents are locked into toll refining agreements with Implats and,
once the new Angloplats refinery comes into operation, possibly
Angloplats as well, there is little prospect of the establishment of new
refining capacity emerging from outside the ranks of the dominant
players in the market. Additional PGM ore bodies will be identified and
new entrants like Avmin may participate in the mining thereof. But it is
unlikely that these new entrants would enter the refining stage. They
could only achieve the required critical mass for refining by entering
into tolling arrangements with other owners of PGM mining rights, a
strategy, the potential for which is increasingly limited by Implats
pattern of acquisitions of which this transaction is part. The refineries
are the gateway to the consumers of platinum, a gateway manned by
two increasingly dominant players, Implats and Angloplats. The
following lengthy quote from the Schroder Salomon Smith Barney
report neatly summarises the distinctive exclusionary strategies of both
Implats and Angloplats and essentially concludes that they will be
successful:
‘On the mediumterm supply outlook, we believe that the
underlining of the aggressive expansion plans by Anglo
Platinum’s MD at its interim figures last week (ie two million
ounces to 3.5 million ounces by 2006) virtually regardless of the
state of global demand, was a message not so much to the
state of global demand, was a message not so much to the
financial markets (which it unsettled heavily); it was aimed more
at the developers of small, much more marginal operations
which individually account for relatively small amounts of
incremental capacity, but which cumulatively could cause
excess new capacity. 8 Johnson Matthey considers that despite
our estimate of some 80 new PGM projects on the drawing
board as a result of high prices in the industry, it is unlikely that
any major new forces will emerge, given to (sic) the major
capital cost of new PGM capacity expansions, and the
complexity of the metallurgy (witness the failures of BHP and
Northam’s ventures in the previous bull markets).
In addition, while Impala has encouraged the growth of new entrants like
Kroondal (now Aquarius Platinum), this umbrella for smaller players without
8 Our emphasis. Note this assessment of Angloplat’s strategy is reinforced later in the report:
‘However, we believe that (Angloplats’) management was talking more strongly to potential marginal
players in the industry when it stressed this message – we do not believe that the group would pursue
these expansions if it perceived a structural change in the end markets.’
9
their own smelting capacity could also be nearing an end as Impala’s excess
capacity is now effectively spoken for in its own and Kroondal’s expansion
plans. It is likely that in a tougher economic environment many of the current
small projects will be by the majors, as purchasing of new rights is becoming
more expensive in southern Africa, and they will be able to review them in the
context of broader portfolios. This implies that if prices are weaker than
forecast due to a dramatic deterioration in demand, then not all of these will
be brought on stream over the coming few years’
28. Nor, it appears, do the major PGM producers actually compete with
each other. The extent of cross ownership and joint projects involving
the major players is startling. As already pointed out, Implats owns a
large stake in LPD and has entered into a shareholders agreement that
effectively gives it joint control of this company. Implats and Angloplats
have been involved in asset swaps 9. Angloplats has a significant stake
in Northam, a medium scale PGM mining company. On the face of it,
this cooperation, read together with Angloplats’ and Implats’
increasing domination of refining, appears to point in one direction: it
reflects the persistent desire on the part of participants in international
commodity markets to control the supply, and hence influence the
price, of their product. This suspicion is heightened by an
extraordinary statement in Implats’ annual report:
‘Overall demand is expected to increase at around four per cent
per annum for the medium term. In line with this forecast
growth, South African producers have announced expansion
plans that will meet this demand without causing an oversupply
situation.’
29. At the hearing of this matter the parties denied that this statement
suggested collusion effectively contending that an intelligent reading of
suggested collusion effectively contending that an intelligent reading of
market conditions would ensure that the major players would be
sensitive to changes in demand conditions and that they would take
decisions regarding supply in response to these changes. While we
accept that familiarity with market conditions would permit reasonably
accurate demand forecasting, the obvious difficulty that remains is for
the several ‘producers’ to ensure that their independently constructed
supply responses or, in this case, ‘expansion plans’, do not cause an
‘oversupply situation’. The GencorLonrho report provides a pithy
rejoinder to the parties’ argument:
‘ Similar negative effects which arise from a dominant position
held by one firm arise from a dominant position held by an
9 In its 2000 Annual Report Implats reports an arrangement between itself, Angloplats and the Lebowa
Mineral Trust relating to mineral rights swaps which will enable Implats to mine the Driekop property
in the Bushveld Complex.
10
oligopoly. Such a situation can occur where a mere adaptation
by members of the oligopoly to market conditions causes anti
competitive parallel behaviour whereby the oligopoly becomes
dominant. Active collusion would therefore not be required for
the members of the oligopoly to become dominant and to
behave to an appreciable extent independently of their
remaining competitors, their customers and, ultimately, the
consumers’ (para 140)
30. Suffice to add that, should it prove necessary, several significant JVs
and common shareholdings (as in the case of Implats’s stake in LPD)
would unquestionably facilitate intelligent forecasting of one’s
competitors supply responses. Certainly, in this case Impala states its
own estimation of the expansions plans of ‘South African producers’
with considerable confidence.
31. Nor, we should add, is this the only suggestion of coordinated
determination of supply. The Schroder Salomon Smith Barney
precious metals report predicts that ‘going into 4Q, we thus believe
prices should be stabilising as the swing supplier, Russia, has
promised to withhold spot palladium supplies..’
32. We are then understandably reluctant to accept the notion that the
platinum producers are pure price takers. Our reading of the
competitive circumstances of the international platinum market is that
the largest participants in this oligopolistically structured market are
well placed to influence supply and hence price. And transactions like
the one under investigation are the modest building blocks that
collectively secure dominance over an important global market. Why,
after all, set a stated price when coordinated ‘expansion plans’ that do
not give rise to ‘an oversupply situation’ will suffice, if not to establish
not give rise to ‘an oversupply situation’ will suffice, if not to establish
the actual price then, at least, to place a floor beneath it.
33. Our conclusions essentially square with those reached by the
European Commission in the GencorLonrho matter. The following
passages from that report are germane:
‘In economic terms the suppliers do not view themselves simply
as price takers (para 138(a))……(hence)’ an economic analysis
of competition and dominance in the platinum industry has to
start with the premises that the four main suppliers are aware
that prices are influenced by their output decisions…’(para 139)
34. The fact, then, of an internationally quoted price for platinum should not
be interpreted as indicating that the participants in the oligopoly are
price takers. The market is not akin to, say, the gold market inasmuch
11
as the international price is not determined by speculative or
investment demand. It is determined by the intersection of the
industrial demand for platinum and its supply which in turn is
determined by the output decisions of the major players. Indeed the
quoted international price is undoubtedly a key factor in providing the
degree of transparency that is highly facilitative of cooperation in
output decisionmaking without resort to explicit, formal agreement
between producers.
35. Is this ground for prohibiting or imposing conditions on this transaction?
We conclude that it is not. We are enjoined by the Act to determine
whether the transaction in question ‘substantially lessens of prevents
competition’. We have, in previous matters, been prepared to take an
expansive view of this assessment, certainly to include the impact on
potential competition and we confirm our view that this is a valid
approach to merger analysis. 10 Moreover we are specifically enjoined
to consider both the ‘the level and trends of concentration, and history
of collusion in the market’ and ‘the nature and extent of vertical
integration in the market’. In this instance the trend is clearly one of
increasing concentration, there are strong suggestions of anti
competitive cooperation between the parties, and each of the majors
is vertically integrated.
36. However, in this instance, we have nevertheless concluded that the
transaction does not on its own substantially lessen or prevent
competition either currently or potentially and that, conversely,
prohibiting it or imposing conditions upon it will not promote
competition. Earlier mergers and acquisitions, including Implats’
pattern of acquisitions, have consolidated an oligopolistically structured
pattern of acquisitions, have consolidated an oligopolistically structured
market for PGMs as well as vertical integration between the mining and
refining stages of the production process. However, neither of these
competitionlimiting factors – that is, neither the oligopolistic structure
of the market nor the integration between mining and refining – can be
reversed through prohibiting or imposing conditions upon the
transaction. Had the competition problem in the PGM market resided in
the degree of horizontal concentration alone, we may well have
decided to draw a line under Implat’s incremental accretion of market
power by prohibiting this transaction. However, the market power
enjoyed by the participants in the PGMs market achieved through high
levels of concentration in combination with the vertical integration of
mining and refining sounds, in our view, the death knell on achieving a
competitive structure in the PGM market. Those wishing to enter the
PGM market at the mining end will do so with the agreement of the
majors or find the gates to the refineries barred. And, of course, lest
10 See our decision in The Tongaat Hulett Group and Transvaal Suiker Beperk (case number
83/LM/Jul00).
12
this be an insufficient deterrent, a new entrant would also have to bear
in mind Angloplats’ apparently predatory threat to dump product on the
market. On the other hand, a wouldbe entrant at the refining stage
would have to be assured of a large supply of ore. This is precluded by
the majors’ control of PGM ore resources, including, through Implats,
control of most independent sources of ore. The only alternative is to
enter the PGM market at both the mining and refining ends, a strategy
precluded by the massive capital and knowhow requirements and, in
all probability, a paucity of ore reserves. In short, the structure of the
PGM market is comprehensively anticompetitive. Competition can
only be promoted through vigilant monitoring of the conduct of the
participants in the market. 11
37. It is now for the competition authorities in South Africa as well as other
jurisdictions to ensure that this anticompetitive market structure is not
abused, in particular to ensure that the oligopolistic structure of this
market does not permit its small number of major participants to
manipulate the supply, and hence effectively set the price, of these
important products.
CONCLUSION
38. The merger between Two Rivers Platinum Limited and Assmang
Limited is approved without conditions.
________ 15 November 2001
DH Lewis DATE
Concurring: NM Manoim, D Terblanche
11 This is not to suggest, of course, that the structure of the market could not worsen. All else being
equal, a merger between any of the large players in the market may worsen the structure inasmuch as it
further eased the ability of those remaining to control supply.
13