IN THE COMPETITION APPEAL COURT
CAC Case No. 68/CAC/MAR/07
Tribunal Case No. 39/AM/May06.
In the matter between
AFRICAN MEDIA ENTERTA INMENT LIMITED Applicant.
And
DAVID LEWIS NO First Respondent
NORMAN MANOIM NO Second Respondent
YASMIN CARRIM NO Third Respondent
PRIMEDIA LIMITED Fourth Respondent
CAPRICORN CAPITAL PARTNERS
(PROPRIETARY) LIMITED Fifth Respondent
NEW AFRICA INVESTMENTS LIMITED Sixth Respondent
THE COMPETITION COMMISSION Seventh Respondent
_____________________________________________________________________
JUDGMENT: 19 NOVEMBER 2007
DAVIS JP
Introduction.
[1] The applicant has approached this Court to review and set aside a decision of
the Competition Tribunal (‘the Tribunal’) to approve a merger between fourth,
fifth and sixth respondents. It also seeks an order substituting the order of the
Tribunal with one which would prohibit the merger.
The factual background
[2] The facts of this case have been meticulously set out in the decision of the
Tribunal. Given this exposition and the limited nature of this application, I
intend to provide a summation of the facts.
[3] Fourth and fifth respondents entered into an agreement to acquire all the
ordinary and issued ‘N’ shares of sixth respondent The only relevant asset that sixth
respondent holds is a 24.9% equity stake in Kaya FM (Pty) Ltd which in turn controls
and operates a radio station, Kaya FM.
[4] In terms of an agreement between fourth and fifth respondents, fourth
respondent acquired an economic interest of 73% in sixth respondent, with the
two parties having equal voting rights. Fourth and fifth respondents agreed
further that fourth respondent would manage the media assets of sixth
respondent which effectively meant that through the acquisition of sixth
respondent and, in terms of this agreement, fourth respondent would control the
24.9% shareholding so acquired in Kaya.
[5] The merging parties notified this transaction to the seventh respondent (‘the
Commission’) as constituting an intermediate merger. The Commission
investigated the merger and concluded it would lead to an increase in fourth
respondent’s market power in Gauteng and it would both facilitate coordinate
behaviour between fourth respondent and Kagiso Media Limited which controls
Jacaranda, a competing radio station, and hence reduce competition between the
radio stations owned by fourth respondent, being Highveld FM, Radio 702 and
Kaya FM. The reasoning of the Commission is reflected in the following passage
2
from its report of 28 April 2006:
‘Considering the above factors the Commission is of the view that the
merged firm will be able to behave to an appreciable extent
independently of its customers and competitors. From the information
provided Kaya FM is an important competitive force in the relevant
market and the product offering of the Primedia radio stations and Kaya
FM are highly substitutable. The Commission has found that this market
is highly concentrated with very few opportunities to switch between
commercial radio advertising stations in Gauteng.
Although the SABC radio stations can be considered as substitutes for
regional radio stations in Gauteng for certain customers the Commission
found that regional customers are not able to substitute to SABC stations
from regional radio stations.
In this market Primedia is regarded as a major player and holds a
significant portion of the market. According to the Commission the
parties do not face any significant competitive constraints other than
from Jacaranda and YFM. The Commission views Kaya FM as an
important role player in this market and has the ability to grow
significantly and be able to significantly constrain the current market
participants.
The Commission is of the view that the merger will entrench the market
power that Primedia already has and eliminate an effective competitor.
Considering the above the Commission is of the view that the transaction
is likely to cause significant adverse unilateral effects.’
[6] In contrast to this conclusion, the Commission originally considered that its
concerns could be addressed by the imposition of behavioural conditions and
accordingly approved the merger subject to conditions.
[7] The merging parties then submitted a request to the Tribunal to reconsider the
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conditional approval granted by the Commission. The merging parties
submitted that the merger should be approved unconditionally or, in the
alternative, approved subject to revised conditions they tendered. When the
matter was argued before the Tribunal, the Commission submitted that, on
further investigation, it was concluded that the merger was likely to result in
both unilateral and coordinated anticompetitive surplus and accordingly the
merger should be prohibited outright.
The Tribunal’s decision.
[7] The Tribunal began its substantive inquiry by examining the respective
shareholdings in Kaya:
Shareholder Percentage
Nail 24.9%
Shanike 24.9 %
The be Convergent Technologies 45.2%
Motsamai 5%
[8] The Tribunal posed the question as to how fourth respondent, by way of its
shareholding in sixth respondent, could exercise control over Kaya after the
merger when sixth respondents’ rights as a shareholder remained unaltered.
Prior to the merger, there was no basis to conclude that sixth respondent had
exercised control over Kaya, as defined in the Competition Act 89 of 1998 (‘the
Act’).
4
[9] The opposition parties to the merger submitted to the Tribunal the merger
would lead to a change in incentives among the shareholders in Kaya and that
there was a greater possibility of coordination of behaviour so that fourth
respondent would exercise a measure of indirect control over Kaya, either on its
own or through joint control with one or more of the other shareholders.
[10] The Tribunal rejected the argument that fourth respondent, in any way, could
exercise sole control over Kaya because ‘it can only vote 24.9% of the votes at
shareholders and a board meeting (sic). This does not give it either a majority
of votes or the power to veto a resolution or require its consent for a resolution
to be valid. Simply put, Nail can be ignored at both shareholder and board
level’ (para 65). The Tribunal concluded that there was no evidence that fourth
respondent could exercise sole control over Kaya FM in terms of s 12(2)(g) of the
Act.
[11] The Tribunal then raised a further question: ‘Whether any of the other
shareholders have an incentive to cooperate with it?’, a positive answer to
which may have lead to the conclusion that Kaya could be controlled jointly by
fourth respondent with ‘one or more others’.
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[12] In this regard, the Tribunal considered three possibilities:
i) Coordination will be lead by fourth respondent over advertising prices and
that together with Kagiso Media, this will enable the three key commercial
music stations in Gauteng, Highveld, Kaya and Jacaranda to raise
advertising rates without a fear of loss of advertisers to remaining stations
which might defeat the strategy. Examining the evidence the Tribunal
concluded: ‘Since Kaya on all evidence is a more likely threat to Highveld
than it is to Jacaranda, it is hard to see why Kagiso Media has an interest in
coordinating with Primedia in the Gauteng market presently’.
ii) Ka giso Media and fourth respondent will coordinate the positioning
strategy of the three stations to ensure that they minimize competition
between one another and in a sense constitute a form of market division. In
this regard, the Tribunal referred to a board presentation by Kagiso Media
which described Kaya and Jacaranda ‘as a powerful combined force against
competitors especially Highveld’. The Tribunal concluded on the basis of
this evidence that :
‘The implication being that each is well situated to attack the crown jewel of
Primedia from a different vantage point. This suggests that Kagiso Media
has little to gain and much to lose from coordination over station strategy,
since it is Highveld that has the most to lo ose and it the most to gain. Whilst
the merger may give Primedia some say in the direction of Kaya there is no
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reason why Kagiso Media would have any incentive to position Kaya away
from Highveld if that became a strategic choice facing the station’ (para 78).
iii) Coordination will not take place amongst the radio stations but could take p
lace amongst the owners being Kagiso Media, Caxton and fourth respondent
who would divide up opportunities in the market as and when they arose as
to ensure that there is an allocation of opportunity among them. In this
regard, the Tribunal stated:
‘But this prospect of deal making does not, prima facie, constitute anti
competitive activity – it might be some form of market division, but not so
selfevidently for us to conclude that the only motive is anticompetitive as
opposed to simple bargaining between owners with incomplete control over
assets.’ (para 78)
[13] O n the basis of this analysis, the Tribunal concluded as follows:
‘We conclude that there is insufficient evidence to suggest that the
acquisition of the Nail stake will give Primedia joint control with any
other shareholder over the business of Kaya FM. At best coordination to
give rise to joint control is a possibility but it is not a probability’. (para
79)
[14] The Tribunal therefore found that fourth respondent’s acquisition of a stake in
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Kaya FM by way of a shareholding in sixth respondent would not give it sole or
joint control over Kaya. The Tribunal found it unnecessary to consider, whether
if it had acquired control, this would lead to an anticompetitive outcome. In its
decision, the Tribunal considered the merger in terms of section 16(1)(a) of the
Act and approved the merger unconditionally in terms of section 16(2)(a)
thereof.
The issues on appeal.
[15] Two central questions were required to be determined by this Court, being
1 The right of an intervener to review merger approvals;
2 The submissions that the Tribunal failed to assess whether or not the
merger was likely to substantially prevent or lessen competition as was
required of it in terms of section12 A(1) read in the light of the factors
listed in section 12 A(2) of the Act and accordingly whether this omission
rendered the decision of the Tribunal reviewable.
[16] A third leg of the argument concerned the question as to whether this Court
should, if the review succeeded, substitute the order of the Tribunal with its own
order which
would prohibit the merger. During argument , Mr Campbell, who appeared together
with Mr Wesley on behalf of the applicants, abandoned this leg of the case and
contended that, were applicant to succeed upon review, the matter should be referred
back to the Tribunal for further consideration.
The right of an intervene r to apply for a review of the decision of the Tribunal to
8
permit the merger.
[17] Mr Gauntlett, who appeared together with Mr Snyckers on behalf of fourth and
fifth respondents, referred to the decision in Competition Commission v
Distillers Corporation (SA) Ltd and Another [2004] 1 CPLR 14(CAC) to support
his submission that an intervening party may not bring an application to review
an approval of a merger by the Tribunal. In Distillers, the Tribunal had
approved the merger of respondent subject to certain conditions. The
Commission subsequently filed a notice of appeal in which it sought to have the
decision of the Tribunal set aside by the Court. The question arose as to
whether the Commission had locus standi to appeal against the Tribunal’s
decision.
[18] The Court referred to section 17(1) of the Act which regulates which parties
may appeal to the Court against Tribunal merger proceedings: :’Within 20
business days after notice of a decision by the Competition Tribunal in terms of
section 16, an appeal from that decision may be made to the Competition Appeal
Court subject to its rules, by:
a) any party to the merger; or
b) a person who, in terms of section 13A(2), is required to be given notice of the
merger, provided the person had been a participant in the proceedings of the
Competition Tribunal’.
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[19] Sec tion 13A(2) provides that ‘in the case of an intermediate or large merger, the
primary acquiring firm and primary target firm must each provide a copy of the
merger notification to: (a) any registered trade union that represents a
substantial number of its employees; or (b) the employees concerned or
representatives of the employees concerned, if there are no such registered trade
unions’.
[20] After an analysis of this section, Malan AJA held: ‘It follows that the
Commission does not enjoy a right to appeal against the merger decision of the
Tribunal in terms of section 17(1) of the Act. Having specifically stipulated two
categories of persons as having this right, it is clear that the Legislature intended
such right of appeal to be limited to these two categories of persons: expression
unius est exclusio alterius’ (para 4).
[21] Mr Gauntlett submitted that this finding could not be reconciled with the
recognition of a right of an intervening party in a merger to approach this court
to review a decision regarding a merger. This Court had decided that sections
61 and 17 of the Act had to be read together so that only parties identified as
potential appellants in section 17 were, ‘affected by’ the Tribunal’s decision as
contemplated in section 61, which in turn gave parties, defined as affected, a
right to appeal or to bring a review.
10
[22] Section 61(1) of the Act provides that ‘a person affected by a decision of the
Competition Tribunal may appeal against, or apply to the Competition Appeal
Court to review, that decision in accordance with the Rules of the Competition
Appeal Court if, in terms of section 37, the Court has jurisdiction to consider
that appeal or review that matter’. Section 17 gives to the concept of ‘affected’
by a decision regarding a merger. Only parties as set out in section 17 can
appeal a merger decision. Accordingly, Mr Gauntlett submitted that it made no
sense to say that a party may not be affected by a decision and hence could not
appeal it but could be affected by a decision if it wished to review it.
[23] Section 61 (1) of the Act may well not be a model of drafting clarity. Insofar as
merger proceedings are concerned, it would be difficult to argue that any party
outside of those set out in section 17 could appeal a decision of the Tribunal,
notwithstanding that the phrase ‘affected by a decision of the Competition
Tribunal’ was employed in section 61 as opposed to a specific reference to
section 17. However section 61(1) is a general provision, with regard to appeals
and accordingly, the catch phrase ‘affected by a decision of the Competition
Tribunal,’ was presumably employed for that purpose.
[24] But with regard to review powers section 61 is not the only relevant provision
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and cannot be read on its own. Section 37(1) of the Act empowers this Court to
review ‘any decision of the Competition Tribunal’. Furthermore, in terms of
section 53(1)(c), the Tribunal is empowered to grant a right to a hearing to
‘any other person’ whom the Competition Tribunal recognised as a participant .
[25] In this case, the applicant was recognised as a participant by the Tribunal acting
within the power granted to it in terms of section 53. It would be an anomalous
situation if the other parties as set out in section 53(1)(c) of the Act were entitled
to bring a review application of a decision of the Tribunal with regard to a
merger but that any other person recognised as a participant (my emphasis)
would not be so entitled to bring a similar application on the basis that it was not
affected by a decision of the Tribunal . Manifestly, once it becomes recognised
as a participant in the proceedings, it was affected by a decision of the Tribunal
and accordingly section 61(1) must apply to it. that is the clear impact of the
words as employed in section 61(1) and it is the meaning that is most congruent
with the principle of legality, being that a party affected by a decision should be
entitled to bring a review application.
[26] Such an interpretation follows the decision to admit the applicant as a
participant and therefore to have equal status to other participants. It is also
congruent with section 33 of the Republic of South Africa Constitution Act 108
12
of 1996 which provides that everyone has the right to administrative action that
is lawful, reasonable and procedurally fair. The interpretation which I have
therefore given to section 61 read together with section 53 of the Act is congruent
with the Constitution, in particular section 33 and section 34 which encapsulates
a principle of legality, the latter which would be eroded by the inability of a
recognised participant to proceedings to bring, what would otherwise be a
justifiable application, for review of such proceedings in which they had been
granted the status of a participant. This finding in no way disturbs that of this
Court in Distillers which was concerned with the question of an appeal.
The Review Application.
[27 ] Much of the attack on the reasoning of the Tribunal was based upon
submissions that the Tribunal’s decision was materially influenced by an error
of law. It was argued that the Tribunal had misconstrued its powers and the
nature of the discretion it was granted in merger control as mandated by
section 12 A of the Act. Accordingly, the decision was reviewable, particularly
in terms of section 61(2)(d) of the Promotion of Administrative Justice Act 3 of
2000 (‘PAJA’), namely that its decision was materially influenced by an error of
law. In Glaxo Welcome(Pty) Ltd v Terblanche NO and Others [20012002]
CPLR 48(CAC) at 54 Selikowitz AJA dealt comprehensively with the review
jurisdiction of this Court. He found that ‘the Tribunal’s decisions, although
13
judicial in nature, are administrative decisions. Further this Court must
exercise its review powers in accordance with the normal common law principles
of judicial review which now derive their force from the Constitution…..’
[28] In order to determine whether the Tribunal’s decision to approve the merger
was materially influenced by an error of law, it is necessary to examine the
essential architecture pertaining to the evaluation of a merger; in particular
section 12 A(1) and (2) of the Act which read thus:
(1) Whenever required to consider a merger, the Competition Commission or
Competition Tribunal must initially determine whether or not the merger is
likely to substantially prevent or lessen competition, by assessing the factors set
out in subsection (2), and
a) if it appears that the merger is likely to substantially prevent or lessen
competition, then determine –
(i) whether or not the merger is likely to result in any technological,
efficiency or other procompetitive gain which will be greater
than, and offset, the effects of any prevention or lessening of
competition, that may result or is likely to result from the merger,
and would not likely be obtained if the merger is prevented; and
(ii) whether the merger can or cannot be justified on substantial public
14
interest grounds by assessing the factors set out in subsection (3)
(2) When determining whether or not a merger is likely to substantially prevent
or lessen competition the Competition Commission or Competition Tribunal
must assess the strength of competition in the relevant market, and the
probability that the firm in the market after the merger will behave
competitively or cooperatively, taking into account any factor that is relevant to
competition in that market including –
(a) the actual and potential level of import competition in the market;
(b) the ease of entry into the market, including tariff and regulatory barriers;
(c) the level and trends of concentration, and history of collusion in the market.
(d) the degree of countervai ling power in the market;
(e) the dynamic characteristics of the market, including growth, innovation
and
product differentiation,
(f) the nature and extent of vertical integration in the market;
(g) whether the business or part of the business of a party to the merger or
proposed merger has failed or is likely to fail ;and
(h) whether the merger will result in the removal of an effective competitor
[29] This Court has previously set out its approach to these sections to the Act. See
Schumann Sasol (SA) (Pty) Ltd v Price’s Daelite (Pty) Ltd [20012002] CPLR 84
(CAC )at 87:
15
:
‘ Section 12A provides for definite stages in the inquiry which it mandates. In
the first place the Commission or the Tribunal must determine whether the
merger is likely to substantially prevent or lessen competition. In making such a
determination the Competition Tribunal must assess the strength of competition
in the relevant market and the probability that, after the merger, the firms in the
market will behave competitively or cooperatively. In making this assessment
consideration must be given to the nonexhaustive list of factors set out in section
12A(2) which are relevant to the assessment of competition in that market. This
initial inquiry may be termed the threshold test. The test must be applied to the
relevant market which is the actual market and not a hypothetical or idealized
market….(Emphasis added).
The case made out by applicant and seventh respondent
[30] The case made out both by applicant and the seventh respondent was that the
Tribunal had failed to assess:
i) The specific market relevant to the determination of the merger;
ii) The strength of competition in the identified relevant market;
iii) The probability that firms in the relevant market (which is not limited to
shareholders of Kaya) would behave competitively or cooperatively;
iv) The factors set out in section 12A(2) of the Act.
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[31 ] Both Mr Campbell and Mr Unterhalter, who appeared together with Mr
Maenetje on behalf of seventh respondent, located the basis for the review in the
failure of the Tribunal to take relevant factors into account in its assessment of
the merger. Both counsel submitted that the essential reasoning of the Tribunal
was that, in the absence of sole or joint control of Kaya by fourth respondent
post the merger, there was no need to assess the extensive evidence which had
been presented on the merits of the transaction, all of which related to the
factors for assessment as mandated in terms of section 12A. By approaching the
matter in this way, the Tribunal had made a decision which was materially
influenced by an error of law.
[32 ] As Mr Campbell submitted, section 12A requires the Tribunal to make an
assessment as to the strength of competition in the relevant market as a precusor
to an assessment of the probabilities that firms in the market will behave
competitively or cooperatively after the merger. The proper test, in his view, is
to ascertain whether the merger will alter the dynamics within the market as a
whole, resulting in more cooperative behaviour or less competitive behaviour.
By limiting its enquiries to the determination of control, the Tribunal
disregarded all the other incentives and reasons as to why a merger may
precipitate a change of behaviour from competition to cooperation.
17
[33 ] The applicant and the Commission contended that the relevant market for the
merger is the Gauteng regional market for the supply of high income listeners
to advertisers on radio stations. In this market, Radio Highveld, 702 Talk
Radio, Kaya FM target similar listeners. They all service the upper LSM
market in English and in Johannesburg (Gauteng). All three stations compete
with one another, they all target similar audiences in the same area,
Johannesburg, and similar advertisers advertise on all three radio stations.
Accordingly, advertisers use these stations collectively and interchangeably.
[34 ] The evidence of Mr Hodge, an expert witness called on behalf of the applicant,
indicated that Radio Highveld was dominant in the market in terms of the advertising
revenue generated. Kaya is a competitor for such advertising as it has a substantial
number of LSM 610 listeners. Currently it attracts a number of advertisers similar to
those who advertise on Highveld; 80% of Kaya’s advertisers by revenue also advertise
on Highveld and on Radio 702 74%.
[35] Based on this information Mr Hodge concluded ‘Using advertising revenue
data we show that Primedia’s stations, 702 and Highveld are dominant and the
addition of Kaya FM causes a rise in HHI that suggests a significant reduction
in competition. Secondly, we explore the competitive dynamics of this market
and demonstrate that Kaya FM is particularly well placed to challenge the
dominance of Primedia’s Highveld Stereo in the relevant market. Finally, we
show that the regulatory environment implies there is no realistic possibility of
entry by another independent into the market.’
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[36 Mr Unterhalter submitted that the evidence derived from the market revealed it
to be concentrated before the merger and that it would become even more
concentrated as a result of the merger, even if a broader definition of the market
was employed to include two further radio stations, YFM and Classic FM
[37 ] Mr Unterhalter referred to the evidence of an expert economist who testified on
behalf of the Commission, Dr Roberts. Dr Roberts examined concentration
levels both for a narrow and wider market and concluded thus: ‘The wide
market is again going through the same exercise, but adding in 5FM and YFM
and computing the market shares you are seeing, the time listened to each of the
stations and computing the market shares and the HHI’s and again it doesn’t
change our conclusion that the merger at least have a substantial increase in
concentration.
[38 ] In Mr Unterhalter’s view, the concentration levels reported by Dr Roberts
required the Tribunal to apply far closer scrutiny on the likely anticompetitive
effects of the merger because, as defined, the market revealed serious
regulatory barriers to entry. There was no significant countervailing power on
the part of the advertisers when it came to radio advertising. Kaya FM
presented the only effective competitive constraint on Highveld, even, if only in
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the future. As a result of the merger, it would be extremely difficult for
advertisers to ‘buy around’ Highveld.
The Merging Party’s Case
[39 ] Mr Gauntlett wisely conceded that an analysis of the applicable market was a
necessary component to the statutorily mandated enquiry required to be
undertaken by the Tribunal. As Mr Unterhalter wryly remarked, it would have
been difficult to have adopted a different approach, given that vast record built
up at hearings conducted between 15 March to 25 April 2006 which had
concentrated predominantly on contentions regarding the applicable market.
Rather, Mr Gauntlett submitted that while the decision of the Tribunal may not
have been a model of jurisprudential clarity, (he correctly observed that, given
the Tribunal’s extremely heavy case load, forensic precision in the formulation
of its decisions could not always be expected), a reasonable reading of the
decision illustrated that the Tribunal had examined the market as a central
component in its reasoning.
[40 ] In this connection, Mr Gauntlett referred to the following paragraph from the
Tribunal’s decision.
‘[T]he coordination will be led by Primedia over advertising prices and
that together with Kagiso Media this will enable the three key
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commercial music stations in Gauteng, Highveld, Kaya and Jacaranda, to
raise advertising rates without a fear of loss of custom to remaining
stations that would defeat this strategy.
Primedia disputes this. I t argues that a sufficient number of stations remain in the
Gauteng area to render coordination ineffective, as advertisers would switch to either
the SABC stations or to other private stations such as Classic FM and YFM and so the
price rise would not be sustainable.
This is extremely difficult to predict and we have not been given any information from
either side of the debate to be able to take a firm view of the probabilities. What we
have to concern ourselves with is not whether the market is ripe for the possibility of an
effective coordination, but whether the merger will enhance or lead to such a prospect.
It is by no means clear that coordination is in the interests of Kagiso Media. Their
prime asset is Jacaranda – more than most stations it would appear to benefit from any
upward rate move by Highveld if advertisers were to move elsewhere. To the extent
that Primedia wanted post merger, to induce Kaya into a rate high, Kagiso Media may
not have an interest in moving up with them in order to benefit Jacaranda. What is less
clear because of the indirect way in which Kagiso .Media has its interests in Kaya, is its
real economic stake. We know Primedia’s economic stake at the moment is 18%.
Makana in one document, in the amendment application before Icasa, reflects Kagiso’s
interest at 12.5% but in another, this is reflected as 6.2%. Whichever is correct
Primedia will have a greater economic interest in Kaya, than does Kagiso Media.
Neither of them has an interest in Kaya gaining at the expense of their more valuable
asset. Jacaranda and Highveld respectively. Since Kaya on all evidence is a more likely
threat to Highveld than it is to Jacaranda, it is hard to see why Kagiso Media has an
threat to Highveld than it is to Jacaranda, it is hard to see why Kagiso Media has an
interest in coordinating with Primedia in the Gauteng market presently.’
[41] In this passage, the Tribunal acknowledged that it was difficult to predict the
nature of the future market and furthermore, accepted that Highveld,
Jacaranda and Kaya formed the basis of the market. Mr Gauntlett contended
that this passage revealed that the Tribunal had indeed taken account of the
market, being these three radio stations in Gauteng. It had based its decision on
this foundational assumption. Mr Gauntlett also submitted that the main case
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against the merger had been based on the assumption that fourth respondent
was to acquire Kaya, that Kaya was a potential future competitor of Highveld
and that there were concentration problems in this potential future market to
be occupied by Highveld and Kaya that would render it rational for fourth
respondent to steer Kaya away from, rather than towards Highveld in such a
market. The Tribunal accepted that it was difficult to predict the nature and
scope of a future market. It then sought to engage with the possibility of
effective coordination between the parties, given that, at best for fourth
respondent, it would have control of 24.9% of the shareholding of Kaya.
[42 ] Mr Gauntlett also made much of the cross examination of Mr Hodge by his
junior Mr Snyckers during the hearing before the Tribunal. Mr Hodge was
asked ‘if you don’t have control by the acquiring firm, there is no alteration
incentive of the acquired firm correct? to which Mr Hodge answered in the
affirmative. For these reasons, Mr Gauntlett submitted that any objective
reading of the evidence placed before the Tribunal and its own assessment of
such evidence as contained in its reasons, would justify the conclusion that the
merger and its effects had been properly considered and ruled upon by the
Tribunal. Its finding about control was decisive of the dispute. The Tribunal
concluded: ‘If a firm cannot control another then it is unlikely to be able to alter
its behaviour to produce anticompetitive effects of a merger. This situation
22
must be contrasted to one in which a firm can still influence a competitive
posture of another but has this influence irrespective of the merger’. The
Tribunal went on to hold that even if ‘the theories of harm that the
Commission and AME contend for – Primedia is anxious to protect the pricing
power of its major asset Highveld and is anxious to prevent Kaya from emerging
as a competitor for the station…..Without the ability to exercise even
disproportionate control this remains at present an unachievable goal’.
Evaluation.
[43] The essence of the attack against the Tribunal’s decision was that it had
misconstrued the mandated enquiry and misunderstood the nature and limits of
its discretion in terms of section 12A. In short, the attack upon the Tribunal’s
decision was based on the submission that it only examined whether fourth
respondent acquired sole or joint control of Kaya. Having found that this
would not serve as a result of the merger, it ceased its enquiry because ‘if a firm
cannot control another then it is unlikely to be able to alter its behaviour to
produce anticompetitive effects qua merger.’
[44 ] In this regard Mr Campbell placed some emphasis upon the following exchange
between the Tribunal and counsel for the merging parties:
CHAIRPERSON Can I just ask you? But if we are with you on the question
23
of control, we don’t even get to the examination of the competition issues. Is that
your contention?
ADV GAUNTLETT: Well I would have thought, Chair, that they are two lines of
inquity for you. You would have to look at them together.
CHAIRPERSON : Why?
ADV GAUNTLETT Well I am not sure what hypothesis you are putting.
CHAIRPERSSON: The hypothesis is that if, Primedia did not acquire…if by
acquiring control of NAIL, Primedia did not thereby acquire control of Kaya,
would we be getting to the competition issues at all or not?
ADV GAUNTLETT: No, we submit that that wouldn’t be so. I am sorry I
misunderstood…” (my emphasis)
[45 ] The point of this reference was that the question posed by the Tribunal fitted
with the approach it ultimately adopted to the mandated enquiry, one in which
the test for control was conflated with a holistic enquiry envisaged by the Act.
[46] In its analysis of sole control, the Tribunal found: ‘there is no evidence that
Primedia can exercise sole control over Kaya FM by virtue of section 12(2)(g).’
This provision states that a person controls a firm if it has the ability to
materially influence the policy of the firm in a manner comparable to a person
who in ordinary commercial practice can exercise an element of control as set
out in the balance of the section. This section is a gateway section: it asks of the
Tribunal that it examine whether ‘one or more firms directly or indirectly
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acquire or establish a direct or indirect control over the whole or part of the
business of another firm’. This is a first order question the answer to which is
necessary to determine the existence of a merger. Only when it has established
that a merger, as defined, constitutes the transaction before the Tribunal, is
there a need to examine the factors set out in section 12A.
[47] Section 12 defines a merger; Section 12 A deals with the competitive
considerations and evaluations of a merger as defined. In this case the Tribunal
had jurisdiction, in that it was accepted that there was a merger. The reason
why this was common cause between the parties is comprehensively set out in
the Tribunal’s decision. There is no need to recapitulate.
[48] Once that determination is made, the enquiry shifts to one in terms of section 12
A of the Act. The Tribunal however focused exclusively upon the question of
control rather than dealing expressly and comprehensively with the
considerations in Section 12A. Once the merger had been determined to be the
transaction, the question arose as to whether the merger was ‘likely to
substantially prevent or lessen competition’ The Tribunal failed to appreciate
the distinction between the two separate enquiries provided for in the Act.
[49 ] This problem is not only the case with its enquiry into sole control. The
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Tribunal went on to consider joint control. It concluded that fourth respondent
would not be able to exercise joint control over Kaya. It assessed whether any of
the other shareholders of Kaya would have had any incentive to cooperate with
fourth respondent. It concluded that the case for coordination had been given
less attention by the Commission and the applicant. No clear theory for the
rationale for coordination had been suggested It then assessed, as has been set
out in this judgment, the three possible forms of coordination which had been
put forward by the Commission and dismissed each in turn. In doing so, it
sought to assess the likelihood of fourth respondent exercising joint control of
Kaya together with the other shareholders in Kaya.
[50] This entire assessment was undertaken in the context of and for the purposes of
assessing the likelihood of fourth respondent exercising joint control of Kaya
together with the other shareholders. It was never a comprehensive assessment
of the likelihood of coordination after the merger, taking into account the
relevant market, the competitive dynamics within the market and any or all of
the factors set out in section 12 A (2).
[51 ] The question for the Tribunal was all about control. Manifestly control per se is
relevant to determining whether a merger exists and thus whether the Tribunal
has jurisdiction to examine the transactions in terms of the factors set out in
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section 12 of the Act. Once a merger exists, the Tribunal must focus its enquiry
into whether the merger is likely to substantially prevent or lessen competition.
Again the question of the nature and scope of control which fourth respondent
could exercise over Kaya is an important consideration in this part of the
enquiry. But alone it is insufficient. The mandated enquiry had to be
undertaken within the broader context of the market and the dynamics within
such a market.
[52 ] An examination of the record will reveal that there was extensive evidence which
covered:
1) the relevant geographic and product market
2) concentration levels within the relevant market and effect thereof
3) regulatory barriers to entry
4) the absence of significant countervailing power on the part of the advertisers
insofar as radio advertising is concerned.
5) Whether the merger would result in the removal of an effective competitor ,
being Kaya FM
[53 ] Much evidence was devoted to the implications and determination of the
HerfindahlHirschman Index (‘HHI’) its application to market concentration
and, in particular, to a modified version of the HHI Index developed by Daniel
O’Brien and Steven Salop “Competitive Effects of Partial Ownership: Financial
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Interest in Corporate Control” 2000(67) Antitrust Law Journal 559.
Significantly, for the purpose of this dispute, O’Brien and Salop
comprehensively show that the previous assumption developed by Areeda and
Turner that ‘a non controlling acquisition has no intrinsic effect to competition
at all’ was incorrect (Phillip Areeda and Donald Turner Antitrust Law (1980) at
322)
[54 ] The thrust of O’Brien and Salop’s argument in this connection is that [a] full
merger is a special case of a“partial” investment of 100%, that gives the
acquiring firm complete control. Partial ownership ‘forces the analyst to grapple
with the question of the degree of control or influence that partial owners have
over managers, how partial ownership translates into control or influence and
how this influence translates into competitive effects’ at 563.
[55 ] In extending the conventional HHI analysis of a change of ownership upon
market concentration to partial ownership, O’Brien and Salop have sought to
develop a modified HHI. As they write:
‘The HHI index of concentration is used in used in antitrust as a rough
screen for gauging the effect .of a merger on competitive incentives.
Although the HHI sometimes gets treated as an arbitrary measure of
concentration, it has a theoretical underpinning industrial organizational
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economics. In the Cournot oligopoly model of quantity competition
among firms producing homogenous products and protected by entry
barriers the HHI is related to the margin between the market price and
cost. That Cournot model can be extended to take into account partial
ownership interest under different assumptions regarding corporate
control’. 595.
[56 ] In developing a formula for the increases in the MHHI, O’Brien and Salop
correctly note that this can be used to evaluate the competitive effects of partial
ownership acquisitions in the same way that the increases in the HHI are used in
merger analysis’. 596.
[57] The implications of using the HHI Index and therefore by analogy, the MHHI
Index are set out succinctly in Massimo Motta Competition Policy and Practice
(2004) at 235:
Othe r things being equal, the larger the number of independent firms
operating after the merger the less likely it is to be detrimental to consumers.
The intuition for this result is straight forward, as the ability of merging firms to
exert market power clearly depends on the number of rivals. In the case of a
merger to monopoly, for instance, the new firm will not face any restraint from
competitors in its pricing decisions. At the other extreme, in an industry which
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is extremely fragmented and in which each firm has only tiny market shares,
the impact of a merger on the market price will be irrelevant.
This gives us a rationale for using a concentration index, such as the Herfindahl
Hirschman Index (HHI), as a first screening device for the unilateral effects of
mergers . Ceteris paribus , we should worry more about a merger in an industry
which is highly concentrated than about one which occurs in a fragmented
industry’.
[58 ] An examination of the O’Brien and Salop analysis reveals that both the existing
financial interests and the nature of corporate governance are important in the
determination of the effects of partial ownership, viewed within a particular
market. Briefly stated, different forms of partial ownership can have different
competitive effects depending on specific financial interests, corporate
governance and market structure. Hence the mandated enquiry extends beyond
an exclusive examination of control as it appears in s12 of the Act ; s12A
requires this inquiry particularly because market structure needs to be taken
into account in the determination of the likelihood that even a 24% shareholding
may have an anti competitive effect.
[59] Dr Roberts’ evidence which was not challenged under cross examination
revealed significant concentration levels in the defined market. For this reason,
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the acknowledged existence of a concentrated market and the nature of the
acquisition required the Tribunal to engage in a careful scrutiny of the likely
anticompetitive effect upon the market and not simply to conclude that in the
absence of sole or joint control it could complete its enquiry as mandated in
terms of section 12A.
[60 ] In summary, the Tribunal conflated the question of control to be determined in
section 12 with the enquiry that, having so determined that there was a merger,
the latter substantially prevented or lessened competition in the defined market
as mandated by section 12A. The decision of the Tribunal was thus predicated
on a material error of law.
[61 ] Mr Gauntlett submitted that it would be wrong to so conclude because the
Tribunal had been granted a legislative discretion to determine whether a
merger should be approved. That discretion was exercised by an expert
regulatory agency and should accordingly be treated with deference. See in this
regard Cora Hoexter Administrative Law in South Africa (2007) at 138139.
This Court accepted this principle in TWK Agriculture Ltd. v The Competition
Commission (unreported decision CAC of 7 August 2007). Nothing in this
decision should be construed to undermine or diminish the adherence to the
approach to deference as set out in TWK, supra. However, there cannot be
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deference to a decision predicated on so material an error of law. Bad law in this
kind of case prevents good economics from being employed.
[62 ] However, the respect and deference owed to the Tribunal means that it is not
for this Court to make the determination as to whether the merger should be
approved or not. The Tribunal is still best placed in the light of this judgment
to assess all of the evidence placed before it and determine afresh whether the
merger should be approved.
[63 ] For this reason, it would be inappropriate for this Court to substitute its own
decision for that of the Tribunal without the benefit of the Tribunal’s obvious
expertise in this regard. It is for the Tribunal, unfettered by a mistake of law, to
engage in the mandated enquiry in terms of s 12A.
ORDER.
[64 ] 1. The decision of the first three respondents to unconditionally approve the
merger between the fourth, fifth and sixth respondents under case number
CT39/AM/May 06. is reviewed and set aside.
2. The determination as to whether the proposed merger between the fourth,
fifth and sixth respondents should be approved and, upon what basis, is referred
back to the first three respondents for an expeditious consideration and
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determination.
3 Fourth and fifth respondents are ordered jointly and severely, the one paying the
other to be absolved, to pay the applicant’s costs of this application, including the costs
incurred by the employment of two counsel.
MAILULA and TSHIQI AJJA agreed.
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