COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No.: 74/LM/Sep06
In the matter between:
KWV LTD Acquiring Firm
and
NMK SCHULZ FINE WINE AND SPIRITS (PTY) LTD Target Firm
_______________________________________________________________
Panel : N Manoim (Presiding Member), Y Carrim (Tribunal
Member), and U Bhoola (Tribunal Member)
Heard on : 13 September 2006
Order Issued on : 13 September 2006
Reasons Issued on : 14 September 2006
REASONS FOR DECISION
Approval
[1] The Competition Tribunal issued a Merger Clearance Certificate on 13
September 2006 approving without conditions the proposed merger
between KWV Ltd (“KWV”) and NMK Schulz Fine Wine and Spirits (Pty)
Ltd (“NMK”).
The parties and the merger transaction
[2] KWV will acquire 51% of the entire ordinary issued share capital of NMK
together with 51% of all the claims on loan account which NMK Global
may have against NMK. 1 KWV is a JSE listed company and is not
controlled (either directly or indirectly) by any of its shareholders. 2 KWV
does control a number of firms. 3 NMK is a South African firm controlled
by NMK Global, 4 which in turn wholly owns two (2) subsidiaries, viz.,
Tuscanbeam Trading (Pty) Ltd and Schultz Wagner (Pty) Ltd.
[3] Pursuant to the entering into the sale of shares agreement, the ordinary
shareholding in NMK will be as follows: KWV (51%) and Newco (also
known as NMK Global) (49%). It is recorded that the individual
shareholders in NMK Global have combined their indirect interest in NMK
through means of Newco. 5 Postacquisition, KWV will exercise control
over NMK by virtue of its 51% shareholding in NMK. 6
Rationale for the transaction
[4] KWV wants to broaden the distribution base of the alcoholic beverages it
manufactures.7
[5] NMK submitted that the proposed deal would allow for a substantial re
investment to provide for the destined future growth and expansion which
would improve NMK’s position as a competitive distributor of alcoholic
beverages. NMK asserted that it would benefit from KWV’s international
presence in sourcing new international brands for distribution by NMK in
South Africa.
1 Refer to page 69 of the merger record. That is, paragraph 4 of the sale of shares agreement
concluded between KWV, NMK, Greg Holtman, Peter Hoyer, Rob Bender, Andre Homann,
Hendrik van Nieuwenhuizen and NMK Global Beverage Brands (Pty) Ltd (“NMK Global). See
also paragraph 4 of the shareholders agreement, that is page 118 of the merger record.
2 KWV’s largest shareholders are Phetogo Investments (Pty) Ltd 18.3; KWV Employee
Empowerment Trust (6.7%) (these two together are the BEE partners with a combined share of
25.1%); Titan Nominees (Pty) Ltd (11.016%); and Vinpro Kooperatief Bpk (7.26%). See page
25.1%); Titan Nominees (Pty) Ltd (11.016%); and Vinpro Kooperatief Bpk (7.26%). See page
496 of the merger record as well as page 1 of the transcript dated 13 September 2006.
3 With the exception of only one entity (being KWV Investments Ltd (as to 55,6%) KWV’s only
interest here is a 50,0% holding in RemgroKWV Investments Ltd), KWV wholly owns the rest of
the subsidiaries, which are: KWV International (Pty) Ltd; KWV South Africa (Pty) Ltd; KWV
Finance (Pty) Ltd; KWV Intellectual Properties (Pty) Ltd; and KWV Projects (Pty) Ltd. KWV
International (Pty) Ltd, a subsidiary of KWV, controls four (4) nonSouth African firms which are
unnecessary to mention here for purposes of the proposed transaction. See in this regard, page
495 of the merger record.
4 NMK Global is jointly controlled by four (4) individuals each holding 24% in NMK Global. They
are Rob A Bender; the Greg Holtman Trust; Andre Homann; and Peter J Hoyer. Hendrik van
Niewenhuizen holds the remaining 4% of the issued shares in NMK Global.
5 See clauses 4.1 and 4.2 of the merging parties’ shareholders’ agreement. Page 118 of the
merger record.
6 See para. 4, page 214 as well as para. 6, page 492 of the merger record.
7 See a document titled “Project Delta” – pages 204207 of the merger record.
2
The relevant market
[6] KWV manufactures, distributes, markets and sells a number of brands of
alcoholic beverages, viz., wines; and spirits. KWV also distributes (but
does not produce) the Groenland wine brand for and on behalf of its
manufacturer. There are as mentioned above other KWV subsidiaries
whose activities are not too significant for purposes of analysing this
transaction. Our focus here will be only those subsidiaries that are
involved in the manufacturing, distribution, marketing and sale of
alcoholic beverages.
[7] NMK distributes, sells, markets and administers (for and on behalf of
various manufacturers either as an agent or as a distributor) a variety of
brands of alcoholic beverages, viz., wines; spirits; and beer. The merging
parties submit that NMK does not produce any of the above alcoholic
beverages, and also that NMK does not distribute brandy at all . NMK
provides the aforegoing services to “onconsumption” customers (e.g., to
hotels, bars, and the like, where alcoholic beverages are purchased by
end consumers and consumed on the premises) and to “off consumption”
customers (e.g., largest retail stores, where end consumers purchase
such beverages for consumption outside of the premises on which they
were bought). 8
[8] There is a difference of opinion with regard to the relevant product
market between the Commission 9 and the merging parties. 10 From a
8 KWV deals with wine brands such as KWV Classic, KWV Reserve, KWV Cathedral,
Roodeberg, Laborie, Roberts Rock, Pearly Bay, and Golden Kaan whilst NMK is involved in
wine brands such as Warwick, Simonsig, Clos Malverne, Groot Constantia, De Krans,
Simonsvlei, De Waal, Laibach, and Kaapzicht. KWV’s spirits brands are KWV Brandy – 20, 10,
Simonsvlei, De Waal, Laibach, and Kaapzicht. KWV’s spirits brands are KWV Brandy – 20, 10,
5 and 3 Year, and Groenewald whereas NMK’s spirits brands are Stroh Rum, Sierra Tequila,
Dalmore Whisky, Bruichladdich, Stortebeker, Wild Africa Cream, Glayva and Boutari Ouzo. Beer
brands, which NMK is involved with, are Stella Artois, Fostert’s, Grolsch, and Erdinger. See
pages 193198 of the merger record.
9 The Commission submits that the proposed transaction entails both a horizontal overlap and a
vertical integration. It argued that the horizontal overlap is in respect of distribution of alcoholic
beverages, mainly wines and spirits throughout South Africa whereas a vertical integration arise
in that KWV is a producer of alcoholic beverages whilst NMK is a distributor of alcoholic
beverages. The Commission’s view is that the proposed acquisition affects two markets, viz., (1)
the upstream market for manufacturing of wines and spirits; and (2) the downstream market for
distribution of wines and spirits.
10 The merging parties argued that save for the fact that KWV distributes wine for one
independent wine label therefore the products sold and services rendered by KWV and NMK
are not substitutable or interchangeable with one another. Their view is that KWV and NMK
operate at different levels of the value chain because KWV is a producer of alcoholic beverages
whereas NMK is a distributor thereof. In light of the above, the merging parties submit that the
relevant product market in which NMK operates can be defined broadly as the distribution
services market, which market includes services such as sales; distribution; marketing; and
administration. Their argument is that as there is no specialised logistical procedure (other than
3
geographical point of view, both the Commission and the merging parties
submit that both the merging parties and their competitors operate
nationally and thus rendering the geographic market to be national. We
need not consider these differences as in our view it appears unlikely that
the proposed transaction may lead to anticompetitive concerns. That is,
no matter how the market is defined.
Competition analysis
[9] A number of factors support our conclusion below which is that the
proposed merger ought to be unconditionally approved.
[10] Firstly, there will be virtually no substantial accretion of market shares
pursuant to the implementation of the proposed transaction. With regards to
market shares the Commission’s investigation revealed that KWV has a 5%
market share for the distribution of alcoholic beverages whilst NMK has 1%. If
this figures are indeed correct, this would result in the merged entity having a
6% combined market share postacquisition. The merging parties further submit
that as KWV distributes only one brand of wine which is not its own, therefore
one can only assume that its market shares as an independent distributor is so
small as to be de minimis .
[11] Secondly, the distribution services market appears to be competitive and
fragmented and comprises of a substantial number of competitors. Apart from
the merging parties, there are other distributors, viz., Douglas Green
obtaining a liquor licence, which has no substantial onerous requirements) and based on the
functional characteristics of the services rendered, therefore the market should be construed as
a broad market for distribution services. They further contend that should the above product
market definition not viewed as the correct one, alternatively the market may be more narrowly
defined as the market for the distribution of alcoholic beverages, which market includes the
sales, distribution, marketing and administration of alcoholic beverages.
4
Bellingham; NUCED; E Snell; Meridian; Smollan Liqour Division; and Parnod
Ricard. With regards to the upstream market for the production of alcoholic
beverages, the Commission’s investigation revealed that KWV has a 5% market
share.11 The Commission further indicated that KWV is not considered as a big
player in the upstream market because it did not even future on the top five list
of manufacturers. 12
[12] According to the Commission, NMK does not distribute alcohol
beverages for and/or on behalf of KWV, but currently distributes these products
for Western Wines (Pty) (Ltd) and Wine Cape Liquors (Pty) Ltd. The
Commission indicate that other manufacturers (including KWV) who are
competitors of the merging parties distribute their own products. We are advised
that NMK has just entered into a distribution agreement with KWV in terms of
which it will distribute the latter company’s products. we are convinced that
KWV may not be able to foreclose other manufacturers of alcoholic beverages
from utilising NMK as a distributor given that most of these manufacturers
conduct their own distribution. 13 We further agree with the Commission’s view
11 During the Commission’s investigation, the merging parties indicated that KWV’s market
shares in respect of the markets for production of spirits and wines is actually less than the
above estimated figures. Their market share for 2006 is estimated to be approximately 3,44%
and 0,40% respectively. See paras. 7.2.2 and 7.3.2, pages 492493 of the merger record.
12 This is in accordance with the BMI Foodpack Report of 2004, pages 431432, and 472474
of the merger record.
13 In fact, the merging parties submitted that NMK would continue to supply the brands of the
alcoholic beverages that it is currently sourcing from approximately 60 “principles” and supplying
to its customers. Postacquisition, NMK will simply extend its product range by adding to its
basket the KWV brands. They further submit that there is little reality to KWV requiring at any
future point in time that NMK solely distributes its products for reasons, amongst others, that the
commercial viability of an independent distributor is dependent on the diverse product range of
alcoholic beverages on offer to purchases. We are told that KWV currently distributes its own
products and also supplies third party distributors, which it will continue to do postacquisition.
5
which is that should KWV attempts to foreclose the current manufacturers that
use NMK as a distributor, those manufacturers may conduct their own
distribution or they may contract other distributors available.
[13] Lastly, barriers to entry into the market appear to be low. Insofar as the
distribution of alcoholic beverages, the merging parties submit that any potential
distributor is required to obtain a wholesaler liquor licence prior to being able to
commence such business, and that such licence is not difficult to obtain –
usually it takes between six months and a year. 14
Public Interest
[14] The merging parties submitted that proposed transaction would not have
an impact on any public interest aspects. In addition, the merging parties
anticipate no job losses post merger, but foresee a potential increase in
employment to cope with the distribution of the additional volumes of
KWV’s alcoholic beverages. 15 Although the Food and Allied Workers
Union (Fawu) wrote a letter to the Commission subsequent to its
recommendation in which it sought the imposition of a moratorium on
retrenchments for a period of 48 months subsequent to the merger, it
failed to lay a basis for why such a condition should be imposed.
Conclusion
See page 53 of the merger record.
14 According to the merging parties the capital required for a party to enter the distribution
services market is low as all that a potential entrant requires is to have stock and a vehicle
(either owned or leased) with which to deliver such stock. Where a new entrant wishes to
distribute on a large scale, then that distributor would require a warehouse (either owned or
leased) in which to store stock. The merging parties also submit that because there are
numerous distributors of alcoholic beverages, retailers can easily negotiate trade terms, and
numerous distributors of alcoholic beverages, retailers can easily negotiate trade terms, and
play distributors off one another in such negotiations. According to the merging parties, there is
little or no cost involved in switching distributors.
15 See in this regard, pages 54, 212 and 420 of the merger record. In addition, an employee
representative of the target firm wrote to the Commission informing the latter that “the
employees of NMK have no objection to the proposed merger”. See also page 2 of the
transcript.
6
[15] We are satisfied that the proposed transaction is unlikely to result in a
substantial lessening or prevention of competition in the relevant
markets. There are no public interest grounds that justify prohibiting or
imposing any conditions on the merger. We accordingly approve the
proposed transaction unconditionally.
______________
N Manoim
Y Carrim and U Bhoola concurring.
Tribunal Researcher: T Masithulela
For the merging parties : N Lopes ( Edward Nathan Corporate Law
Advisers)
For the Commission : M Mohlala assisted by G Mudzanani (Mergers
and Acquisitions) and A Kalla (Legal
Services)
7