IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA
Case No.: 84/CAC/Jan09
In the matter between:
A. C. WHITCHER (PTY) LIMITED Appellant
and
THE COMPETITION COMMISSION OF
SOUTH AFRICA First Respondent
MTO FORESTRY (PTY) LIMITED Second Respondent
BOSKOR SAAGMEULE (PTY) LIMITED Third Respondent
BOSKOR RIPPLANT (PTY) LIMITED Fourth Respondent
JUDGMENT:
DAVIS JP:
Introduction
[1] On 14 December 2006, the second to fourth respondents submitted an
application for consideration of an intermediate merger to the Competition
Commission. The second respondent was the primary acquiring firm.
The third and fourth respondents were the primary target firms. The
second respondent proposed to acquire the assets and the business of
the third and fourth respondents in terms of a sale of business agreement.
[2] The Competition Commission (“the Commission”) investigated the
proposed merger at some length. On 13 March 2007, the Commission
decided to approve the merger without conditions.
[3] The reasons for the decision were set out in the Commission’s report
dated 12 March 2007 (“the final report”).
[4] In July 2007, the appellant launched an application before the Competition
Tribunal (“the Tribunal”) to review and set aside the decision (“the review
application”). It was the first such review of its kind before the Tribunal,
brought on the basis of the decision of this Court in TWK Agriculture Ltd v
the Competition Commission (67/CAC/Jan07).
[5] The Tribunal dismissed the review application. It found that the
Commission had not misdirected itself in approving the merger. In
addition, the Tribunal held that the appellant had delayed unreasonable
before launching the review application. The appellant now appeals to
this Court against the Tribunal’s decision
The framework of the dispute.
[6] The dispute, as it was argued on appeal, turned on three separate
questions:
2
1. Whether the appellant delayed unreasonably before the
launching of the review application;
2. If this court did not consider the delay to be unreasonable,
then, on the basis of the merits of the decision, were there
justifiable review grounds for setting aside the decision of the
Tribunal.
3. If this court decided that the impugned decision was vitiated
by a material irregularity, should it then exercise its
discretion and refuse to grant relief to appellant.
Unreasonable delay
[7] Mr Gauntlett, who appeared together with Mr Cockrell onn behalf of
second, third and fourth respondents, joined cause with Mr Sibeko, who
together with Ms Kjoroeadira appeared on behalf of first respondent to
emphasise as their primary ground of attack against that the appeal the
delay in launching the application was fatal to the application.
[8] The chronology can be summarized thus. The impugned decision was
taken by the Commission on 13 March 2007. The review application was
launched on 5 July 2007, some three and half months thereafter. It was
common cause that appellant learnt of the impugned decision within days
after it was taken. On 19 March 2007, appellant’s attorney wrote to the
managing director of third and fourth respondents to advise him that the
3
appellant would ‘in all probability be taking [the impugned decision] on an
urgent review to the Competition Tribunal’. However the proclaimed
understanding of the inherent urgency of the application notwithstanding
the review was only launched on 5 July 2007.
[9] In his answering affidavit on behalf of the second, third and fourth
respondents, Mr David Reeves took up the question of delay on the part of
applicant. After averring that there had been an unreasonable delay by
applicant before it launched its application for review, Mr Reeves pointed
out that a number of steps had been taken subsequent to the
authorisation of the merger to implement the transaction, including the
following:
1. The Boskor mill was transferred to MTO on 5 June 2007
2. The purchase price was paid 7 days thereafter to Swartland
(Pty) Ltd, the parent company of third and fourth
Respondents;
3. MTO implemented an organisational restructure, and
appointed additional regional management to manage its
Tsitsikamma region in May 2007. In particular, MTO’s
business was restructured into three regions, Boland,
Outeniqua and Tsitsikamma;
4. MTO and Boskor have thoroughly integrated their
employees into the various regions. In particular:
4
all employees at the Boskor mill were transferred to MTO;
all employees of the Boskor mill were transferred to the MTO pension fund; and
all Boskor employees were included in the MTO incentive bonus scheme, which
will enhance their earnings.
[10] In applicant’s replying affidavit, Mr Westcott raised three justifications for
appellant’s delay in the eventual launching of its review application:
1. Its managing director Mr Raymond Ritchie had been out of
the country (in Northern Mozambique) for three weeks after
the decision by the Commission had been taken. Appellant
considered it unwise to launch the review application without
careful consideration of the issues by Mr Ritchie. In
particular “upper most in our minds, was the fact that the fact
MTO was the appellant’s only supplier. There was a
concern that launching the review could have serious
implications and that it was not a decision taken lightly” by
appellant.
2. According to Mr Westcott, to the best of applicant’s
knowledge, the merger was only ‘officially consummated’ in
June 2007. According to Mr Westcott, a number of rumours
have been circulating in April and May 2007 that there were
still serious obstacles to the merger. Accordingly, the
5
application was launched only when appellant became
aware that the merger was going ahead in June 2007.
3. When appellant took the decision to proceed with the
application, there was great uncertainty as to whether the
review had to be brought before the Tribunal or this Court.
That uncertainty was only to be resolved after this court
handed down its decision in TWK Agriculture Limited v The
Competition Commission (Case No 67/CAC/Jan07).
Accordingly, Mr Westcott averred that appellant had been
advised by its legal representatives that it might wish to wait
until the matter of TWK Agriculture had been disposed of
before filing its application for review. In justification he
noted that some of the appellants legal representatives had
been present during the hearing of the TWK Agriculture case
and once it ‘became apparent in the course of argument the
CAC would not readily accept that the Tribunal lacked
jurisdiction to review a merger decision taken by the
Commission;’ the appellant proceeded to launch its review
application in the present dispute.
The Tribunal’s decision
[11] The Tribunal considered these particular arguments and concluded thus:
6
“the [appellant’s] delay of some 75 business days in bringing the
review application was unreasonable in the circumstances of this
case, and does not warrant this Tribunal overlooking it. Indeed the
[appellant’s] lackluster conduct in seeking interim relief, its
inclination to adopt a wait and see attitude and its rather limp
suggestion that the merging parties would not rush ahead with the
merger, suggests that the delay may in fact have been willful and
that this application is nothing more than a ploy to extract some
form of commercial advantage rather than the pursuit of the public
interest”.
[12] Mr Unterhalter, who appeared together with Mr Gotz on behalf of the
appellant, submitted that the Tribunal had erred with regard to this finding;
in particular that the review had been brought in terms of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) and that the appellant could
not rely on the outside limit of 180 days as provided for in PAJA.
[13] Mr Unterhalter submitted that a decision of the Commission to approve an
intermediate merger such as the present merger was administrative action
as defined in section 1 of PAJA. For this reason, the review proceedings
stood to be analysed in terms of section 7 (1) read together with section 6
(1) PAJA. In short, the review had to be instituted without unreasonable
delay and ‘not later than 180 days after the date on which the person
7
concerned was informed of the administrative action, became aware of the
action and reasons for it or might reasonably have been expected to have
become aware of the actions and reasons’.
[14] As the present review proceedings have been initiated within the 180 days
period contemplated in section 7 (1) PAJA, the application could not be
time barred.
[15] By contrast, Mr Gauntlett submitted that the wording of section 7 (1) made
it clear that the application for review may be time barred, even if brought
within the 180 day period, the decisive question being whether the
appellant delayed unreasonably before launching the application. In this
connection he referred to the judgment of Brand JA in Associated
Institutions Pension Fund and others v Van Zyl and others 2005 (2) SA
382 (SCA) at para 46 in which the learned judge of appeal emphasised
that the failure to bring a review within a reasonable time may cause
prejudice to the respondent, that there was a public interest element in the
finality of administrative decisions and the exercise of administrative
functions and that the determination of a reasonableness of delay was
entirely dependant on the facts and circumstances of a particular case.
Only after a court had determined that the delay was unreasonable, could
it proceed to exercise a discretion as to whether the delay should be
condoned.
8
[16] Mr Unterhalter submitted that in this case the explanation provided by the
appellant justified a conclusion that the delay was not unreasonable. In
my view, the reason offered by the appellant concerning the uncertainty as
to the appropriate forum for review which was finally settled in the TWK
Agriculture case is of considerable weight. It is understandable for the
appellant not to rush to one other forum to bring its review application,
until a case which was about to be heard in this court, had been finally
determined so that appellant’s legal representatives could make an
informed decision as to the advice to be given to their clients about the
appropriate forum. In summary, the fact that the case was only argued
on 12 June 2007, therefore justified a delay until such time as an informed
decision could be made as to the appropriate forum for review in the light
of the prevailing uncertainty as to the law.
[17] There is a further reason why the delay should not constitute an
insurmountable obstacle to an evaluation of the merits. As Brand JA said
in the Associated Institutions Pension Fund and others , supra at para 46,
there is a public interest element in the finality of administrative decisions.
There is a public interest element in insuring, within the competition law
context, that, when a merger transaction is sanctioned, it is justified within
terms of the provisions of the Act. If a competition authority acts in
manifestly unreasonable regard for the applicable provisions of the Act in
9
sanctioning such a transaction, the prejudice to a range of stakeholders
including competitors and consumers is potentially significant. Thus,
even Mr Gauntlett was constrained to concede that, were there to be an
‘egregiously reviewable decision’ this consideration would have to be
weighed in so far as the evaluation of an unreasonable delay was
concerned.
[18] For these reasons therefore, it is necessary to turn to the merits of the
Commissions decision.
The merits review
[19] In its answering affidavit first respondent states, ‘in its founding affidavit
and supplementary affidavit the Applicant places extreme focus on facts
used by the 1 st Respondent in coming to its conclusion. Knowing that a
review application its not merit based it appears as if the Applicant is
bringing the application in the guise of an appeal’.
[20] On the basis of this approach two arguments were raised by respondents;
(i) The significance of the distinction between an appeal and
the present proceedings, being a review; and
(ii) The standard to be adopted, in so far as review proceedings
of this kind, was concerned.
10
This distinction between an appeal and review is not one without difficulty.
Particularly under PAJA, the merits of a decision will, to some extent, form
part of the scrutiny to be exercised by the reviewing court. Cora Hoexter
Administrative Law in South Africa at 106. As Navsa AJ said in Sidumo
and another v Rustenberg Platinum Mines LTD and others 2008 (2) SA 24
(CC) at para 108. ‘This court recognised that scrutiny of a decision based
on reasonableness introduced a substantive ingredient into review
proceedings. In judging a decision for reasonableness, it is often
impossible to separate the merits from scrutiny’.
[21] For this reason, appellant was correct to contend that the Tribunal was
required to scrutinise the reasoning of the Commission in order to
establish whether the latter’s decision constituted reasonable
administrative action. The tribunal was thus tasked not merely to
describe the approach adopted by the Commission, and then accept its
approach at face value, but rather carefully to examine the Commission’s
process of reasoning as reflected in its final report and to determine
whether that reasoning displayed an appropriate understanding of the law
and a reasonable application of the law to the facts as set out.
[22] The Tribunal emphasised the importance of deference to the Commission.
It reasoned thus:
11
“Given the complex nature of the decision and the fact that the
Commission exercises its discretion through direct engagement
with issues of fact, law and economics, this Tribunal would be
inclined to show a high degree of respect for the decision of the
Commission and would only be inclined to set aside decisions of
the Commission in circumstances of a grave or palpable error.
Such an approach would be in accordance with the guidelines
developed by our courts and similar to that adopted in jurisdictions
such as the European Union (“EU”) where the Court of First
Instance (“CFI”) has granted the European Commission (“EC”) a
margin of appreciation and would not set aside a decision unless
there was some grave or manifest error or procedural illegality. ”
[23] There are at least two grave errors contained in this passage. Firstly, the
concept of deference needs to be treated carefully. It is not simply
jurisprudential war cry. In any event, it has been decidedly overworked in
our law. For a general discussion see Hoexter, supra at 138 - 147. In
the first place, a distinction must be drawn between deference when it
applies within the context of the doctrine of the separation of powers and a
case such as the present dispute. The doctrine of separation of powers
designates specific areas of competence which are associated with each
of these three branches of government. As Prof Jeffrey Jowell has noted:
12
“it is not the province of courts, when judging the administration, to
make their own evaluation of the public good, or to substitute their
personal assessment of the social and economic advantage of a
decision. We should not expect judges therefore to decide
whether the country should join a common currency, or to set a
level of taxation. These are matters of policy and the preserve of
other branches of government and courts are not constitutionally
competent to engage in them.” Cited by Hoexter, supra at 139
[24] However in this case, the question for determination does not concern the
application of the doctrine of separation of powers. It involves the
supervisory role of the Tribunal over the Commission in the case of an
intermediate merger, in which the latter, is both the investigator and the
adjudicator. Manifestly, these rules call for a heightened level of scrutiny.
Furthermore, as David Mullan 2006 Acta Juridica 42 at 50 has noted, an
important criterion in assessing the level of deference owed in a review
application is the expertise of the reviewing court relative to that of the
administrative body. In this case, the Tribunal has significant economic
expertise and knowledge of competition matters. It was set up for the
purpose of constituting a specialist body. It is in an entirely different
position from a general court, whose members are not appointed, as is the
case with those of the Tribunal, because of their specific expertise in the
field upon which they are called to review. A second, significant mistake
13
committed by the Tribunal is its unfortunate invocation of the law of the
European Union. The Tribunal seems to have completely omitted from its
consideration the important decision in P, the Commission v Tetra Laval
(‘Tetra Laval II’ ) [2005] ECR I – 987. The European Court of Justice
said, inter alia, in its Tetra Laval decision:
“The community courts [must], inter alia establish whether the
evidence relied on is factually accurate reliable and consistent but
also whether that evidence contains all the information which must
be taken into account in order to assess the complex situation and
whether it is capable of substantiating the conclusions drawn from
it”. para 39
Thus, the power of review extends to ‘whether the factual information on
which such assessments are based is accurate and whether the
conclusion drawn as to fact are correct; whether the Commission
undertook a thorough and painstaking investigation, and in particular
whether it carefully inquired into and took sufficiently into consideration all
the relevant factors; and whether the various passages in the reasoning
developed by the Commission in order to arrive at its conclusions in
respect of the compatibility or otherwise of a concentration with the
common market satisfy requirements of logic, coherence and
appropriateness.’ Cited by Bay and Calzado 2005 (28) World
Competition 433.
14
[25] In short, a careful process of investigation of the reasoning adopted by the
Commission is required. That does not mean that, where the
Commission arrives at a plausible and justifiable conclusion, that it is
permissible that this should be substituted for an alternative by the
Tribunal. Its task is to ask whether the process of reasoning as contained
in the Commission’s report can justify the conclusion at which the latter
arrived.
The Commission’s reasoning
[26] Mr Unterhalter, in his oral argument before the court, concentrated on two
central findings of the Commission namely, the question of foreclosure
and the definition of the market.
[27] The concern of a number of enterprises like appellant, which conduct the
business of a sawmills, was that, if the proposed merger took place, the
increased concentration in the downstream sawmilling market would make
the merged entity dominant in the market for sawn timber. This was
made clear to the Commission in representations generated by appellant’s
attorney on 29 January 2007. The following was stated with regard to
vertical foreclosure:
“1. CSG would secure a sustainable and long term supply of
saw logs for the sawmills under its control, the commercial
imperative of which is self evident if one has regard to the
15
fact that up to 40% of the total plantation area in the WSC
could be phased out, Boskor is operating well below
capacity and significant capital investments have been made
at the Longmore saw mill.
2. CSG would be able to ensure that its sawmills get a better
log mix, leaving competing sawmills to compete over a low-
grade log mix. Even where ACW is provided with the
contract volume, the merged entity could easily manipulate
the quality log supply. ACW can be given all the hard
species, small logs, logs with knots, crooked, burnt, worm
eaten, as well as inaccessible mountainous area timber
(which have a higher cost of harvesting and is of poorer
quality), etc. This would significantly raise ACW’s costs due
to the lower production rates and higher wastage associated
with the sawing of poorer quality logs, ACW has on a
number of occasions experienced the manipulation of the
quality of its log supply.”
In the founding affidavit, deposed to on behalf of appellant, Mr Westcott
noted that this representation ‘proved to be prophetic because ACW was
already experiencing an increase in the manipulation of the quality of its
log supply since the merger was approved’.
16
[28] In summary, appellant’s complaint was that, while it may not be
immediately foreclosed in the sense of being denied total access to saw
logs, its dependence on the merged entity meant that it was no longer an
effective competitor with the emerged entity. The best that appellant
could hope for was compliance by the merged entity with its contractual
obligations to supply appellant with 28 500 cbms saw logs per year. But it
would not be able to access more logs nor could it be sure of the quality
thereof.
[29] Read accordingly, the complaint concerned foreclosure not only of volume
but of quality of product. The Commission completely ignored the
question of the quality of logs which might have been provided to
appellant: thereby not considering at all the question of quality foreclosure.
[30] Turning to volume foreclosure, the Commission made much of the
estimated 100 000 cbms of logs which would not be available after March
2008 as a result of fires in the Tsitsikamma / Longmore region. This
observation then supported the following critical conclusion on vertical
concerns:
“MTO’s output of saw logs is going to decline by 100 000 cbms of
saw logs, or approximately 15 per cent of its total volume. Due to
the location of the fires, all of this volume is going to be reduced in
the Tsitsikamma / Longmore region, where all the interveners
17
(except Steinhoff) are located. Existing log output in the
Tsitsikamma region is 267 , 500 cbms, of which 137,500 would
continue to be sold to Boskor without the merger, 28, 500 cbms
would be sold to ACW and 101,500 cbms were sold on the open
market. The entire volume sold on the open market is eliminated
as a result of the fires. This effectively amounts to the volumes
sold to ACW and the smaller millers, and their reduction in volume
is not merger specific.”
[31] This conclusion is manifestly unreasoned. In terms of section 12 A of the
Act, the Commission must initially determine whether or not the merger is
likely to substantially prevent or lessen the competition. Thus, the key
question is to determine the effect of the merger; in this case; in a market
in which supplies had already declined because of the fire. The fire can
therefore not be taken out of the equation to justify a rather cavalier
conclusion that the consequent reduction in volume was not merger
specific.
[32] A rational enquiry would examine how the distribution of the logs took
place before the merger and then compared this position to what would be
likely after the merger. Before the merger, a supplier of logs would
rationally decide how to distribute its product between appellant and, for
example Boskor, on the basis of financial considerations. Clearly once
18
the merger had taken place, there was an incentive to self supply
downstream. The fire exacerbated the problem because, after the
merger, there was now greater scarcity than would have been the case
had there not been a fire. This in itself would presumably mean that there
was less largesse for appellant to distribute to mills other than its own.
But none of these issues appear to have taken up any of the consideration
of the Commission.
[33] An argument which was raised and canvassed by the Commission
concerned whether Boskor prior to the merger, had countervailing power
which would have constrained second respondent prior to the merger.
The Commission concluded that, although this theory was credible, it did
not have any evidence of constraining power in practice. However, a few
pages later in its own report it summarises the evidence of the Steinhoff
group to conclude ‘that they believe that the merger results in fundamental
and irreversible structural change in the saw milling market in the region.
The reason for this claim is Steinhoff’s evidence that there would be less
constraining power as a result of the merger with Boskor than previously
was the case.
[34] Turning to the market, the Commission found that:
“Even though price differentials and transport costs at first glance
would suggest a separate Eastern, Western and Southern Cape
19
market this would appear to be a temporary phenomenon. In the
future we expect a lot more product to come from KZN and the
Northern Provinces and even possibly from imports, discussed
below”.
In coming to this conclusion, the Commission relied on a report produced
on behalf of appellant by Mr Crickmay to the effect that approximately 75
000 cbms of product came into the Eastern and Western Cape from KZN
and Mpumalanga. But Mr Crickmay’s own report indicates that only a
small quantity of timber could be expected to ‘make their way to the W, S,
N Cape from (the) mills in the Northern Provinces’. In a report which
would pass a standard of reasonableness as outlined in this judgment, it
was to have been expected that the Commission engaged properly with
Crickmay report to the effect that there was simply not enough supply to
meet the demand in the provinces of KZN or Mpumalanga and further the
costs of transporting sawn timber from those provinces over the distance
would add so significantly to the costs to make sourcing of sawn timber
from those provinces either unfeasible is the provinces concerned or at
the very least, to give second respondent a significant degree of market
power to increase prices by the addition of the transport costs.
[35] Within this context, consider the following key passage in the
Commission’s report in which it summarises its geographic market
definition:
20
“Even though price differentials and transport costs at first glance
would suggest a separate Eastern, Western and Southern Cape
market this would appear to be a temporary phenomenon. In the
future, we expect a lot more product to come from KZN and the
Northern Provinces and even possibly from imports”.
This expectation of the Commission is never justified in its report nor does
the evidence appear to support its enthusiastic embrace of the extended
market.
[36] A reasoned conclusion about the market is particularly important to
consider the Commission’s own finding with regard to the Herfindahl –
Hirschman index (HHI) which is employed to measure the level of market
concentration. If the narrower geographic market definition (the Cape’s)
was employed, the HHI would increase from 1058 to 1508, an addition of
some 450 points. This is a figure which may have triggered a greater level
of scrutiny on the part of the Commission.
Conclusion
[37] The Commission committed a number of errors, of both commission and
omission, with regard to its calculations on critical areas of foreclosure and
market definition. The conclusions which it reached, in particular, its
ability to undertake the predictive evaluation contemplated in section 12 A
(1) of the Act was vitiated by these significant errors which no reasonable
21
decision maker in the position of the Commission would have so taken or
omitted to consider.
[38] Section 2 of the Act contains as one of the purposes of the Act, that small
and medium sized enterprises have an equitable opportunity to participate
in the economy. Appellant falls into this catergory enterprise and the
purpose of the Act would be subverted if the evaluation of the merger
between second and third respondent took place in circumstances where
significant errors had been constituted so as to justify a conclusion that an
unreasonable decision had been made to the detriment of small and
medium enterprises.
[39] Without dealing with these critical question, which were thus not properly
determined in its report, doubt must exist as to whether the concerns
articulated, for example by Steinhoff, have been resolved: that is that the
merger would result in a fundamental and irreversible structural change in
the saw milling market in the region. To return to the argument about
unreasonable delay; the errors committed by the Commission and the
importance of the merger for so significant a part of the economy in the
region supports the dismissal of the delay argument.
22
Is the merger irreversible?
[40] Mr Gauntlett emphasized the decision in Chairperson: Standing Tender
Committee and others v JFE Sapela Electronics (Pty) Ltd and others
[2005] 4 All SA 487 (SCA) at paras 20 – 29, namely that the court may
exercise its discretion not to grant a review because any relief granted
would be incapable of practical implementation, given the lapse of time
between the launch of the proceedings and the granting judgment. In
other words, the transactions set out by Mr Reeves, as described earlier in
this judgment, meant that huge prejudice would be suffered were
appellant to obtain relief.
[41] Given the nature of merger proceedings, were this argument to succeed, it
would be extremely difficult for any successful party to gain substantive
relief in a merger review. Mergers require expedition; litigation of a
complex kind demands careful deliberation. A balance has to be struck
between these considerations as opposed to an abandonment of the
deliberative requirements of adjudication. In any event, the effect of a
decision to refer the matter back to the Commission would not practically
undo the various transactions described by Mr Reeves. On the strength
of Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222
(SCA), a decision to merge would have taken place, pursuant to what was
then a duly authorised decision on the part of the Commission. In terms
of the findings of this court, that decision by the Commission must be set
23
aside. But the order which is to be made in this case does not effect the
legal consequences of any decision or act taken pursuant to the merger
as approved by the Commission. What flowed legally from the
Commission’s decision to permit the merger, cannot be set aside in these
proceedings nor can any of the contractual obligations entered into by the
merged parties automatically be declared to be of no force and effect in
law, until a court, upon hearing the merits of a duly formulated application
so decides. Hence, any setting aside of acts taken pursuant to the
authorisation of the merger by the Commission would have to flow from
such a duly launched application which would need to be successfully
upheld by another court.
[42] Any such application would, of course, have to be brought during the
period in which the Commission would be required to reconsider its
decision, itself an indication that a stay of any such proceedings would, in
the ordinary course, be far more appropriate than the granting of
irreversible relief; that is setting aside of transactions already undertaken
at the very time that the Commission is reconsidering whether to permit
the merger.
[43] Thus, it does not appear that this argument concerning prejudice which
has been raised by the respondents should be fatal to the relief due to
appellant.
24
[44] For these reasons therefore, the following order is made:
1. The appeal is upheld with costs, including the costs of two
counsel.
2. The decision of the Competition Commission of 12 March
2007 to approve the merger between MTO Forestry (Pty)
Limited and Boskor Saagmeule (Pty) Limited and Boskor
Ripplant (Pty) Ltd is set aside.
3. The transaction is referred back to the Commission for
further consideration as to whether the merger should be
approved and if so whether appropriate conditions should be
attached to such approval pursuant to the decision of the
Commission to approve the merger.
______________
DAVIS J P
TSHIQI and ZONDI AJJA concurred
25