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[2014] ZACT 96
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Caxton and CTP Publishers and Printers Limited v Media24 (Proprietary) Limited and Others (019323) [2014] ZACT 96; [2014] 2 CPLR 502 (CT) (18 August 2014)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case No.: 019323
In the matter
between:
CAXTON AND CTP
PUBLISHERS AND PRINTERS
LIMITED
.............................................
Applicant
and
MEDIA24
(PROPRIETARY)
LIMITED
................................................................................
1
st
Respondent
PAARL MEDIA GROUP
(PROPRIETARY)
LIMITED
.....................................................
2
nd
Respondent
PAARL MEDIA
HOLDINGS (PROPRIETARY)
LIMITED
..............................................
3
rd
Respondent
PAARL COLDSET
(PROPRIETARY)
LIMITED
...............................................................
4
th
Respondent
THE COMPETITION
COMMISSION
..................................................................................
5
th
Respondent
Panel: A Wessels
(Presiding Member),
M Mazwai (Tribunal
Member) and
A Roskam (Tribunal
Member)
Heard on : 13 August
2014
Decided on : 18
August 2014
ORDER
Having
heard the parties to the application for intervention, the Tribunal
orders the following:
1.
The applicant is granted leave to intervene in the merger proceedings
before the Tribunal under the above case number, such intervention
being limited to the likely effect of the merger between the merging
parties under sections 12A(2) and 12A(3) of the Competition
Act, 1998
(“the Act”),
with
specific reference to the following issues:
1.1 the current firm
or firms directly or indirectly controlling Naspers Limited
(specifically the following shareholders of the
unlisted A ordinary
shares: Naspers Beleggings Ltd (“Nasbei”), Keeromstraat
30 Beteggings Ltd (“Keerom”),
Wheatfields 221 (Pty) Ltd
(“Wheatfields”), Sholto Investments BVI, De Goedgedacht
Trust, Sanlam Ltd and Messer’s
Stofberg and Bekker) and their
interests in the printing and publishing industries and the
competition effects thereof in the context
of the proposed merger;
1.2 whether or not
the proposed merger will enhance access to or the sharing of
confidential competitive information; give rise
to, or increase the
risks of, coordinated effects in the printing and/or publishing
markets. This includes the issue of how the
proposed merger changes
the pre-merger control of the 2
nd
, 3
rd
and 4
th
Respondents (i.e. the “target firms” in the proposed
merger) and the post-merger incentives of Media24 (Pty) Ltd;
1.3 the effect of
the proposed merger on the public interest, and in particular its
effect on the media sector as contemplated in
section 12A(3)(a) of
the Act; and
1.4 the conditions,
if any, to be considered by the Tribunal in relation to a potential
conditional approval of the proposed merger.
2. The applicant’s
participation in the merger hearing shall include the right to:
2.1 attend
pre-hearing conferences;
2.2 to have access
to, and to inspect, any documents filed by any of the merger parties
and other participants in the merger proceedings
to the extent that
they relate to the issues set out in paragraph 1 above, provided that
any confidential information shall unless
otherwise directed be
limited to the applicant’s legal representatives and (economic)
experts on the condition that they
provide appropriate undertakings
to respect and protect confidentiality;
2.3 call for the
discovery of further documents from the merger parties and other
participants in the merger proceedings to the
extent that they relate
to the issues set out in paragraph 1 above;
2.4 request the
Tribunal to direct, summon and/or order any person to appear at the
merger hearing and/or to produce documents relevant
to the merger
hearing to the extent that they relate to the issues set out in
paragraph 1 above;
2.5 participate in
any interlocutory proceedings in respect of the merger hearing;
2.6 adduce oral and
documentary evidence at the merger hearing to the extent that it
relates to the issues set out in paragraph
1 above;
2.7 cross-examine
any of the witnesses of the merger parties and any other participants
of the merger hearing to the extent that
it is relevant to the issues
set out in paragraph 1 above; and
2.8 present argument
at the merger hearing to the extent that it relates to the issues set
out in paragraph 1 above.
3. The participants
rights granted in paragraph 2 above will be subject to:
3.1 limitations on
their exercise imposed by the Tribunal from time to time during the
course of the proceedings to ensure the expedition
and efficiency of
the hearings;
3.2 adherence by the
applicant to any timetable set by the Tribunal for attending to any
pre-hearing procedures and filing of any
processes in this matter;
and
3.3 the requirement
that the applicant produce its list of proposed witnesses by no later
than 3 (three) business days after date
of receipt of the
confidential record; provided further that if the applicant seeks to
call any witnesses to also be called by
the Commission in this matter
the Commission shall have the priority to lead such witness.
4. The Commission
must, subject to the appropriate confidentiality undertakings,
provide the applicant with the confidential record
of its proceedings
within three business days of this order.
5. The costs of this
application are reserved pending determination of the merger at the
main hearing.
18 August 2014
Date
Presiding Member
A Wessels
Concurring: M
Mazwai and A Roskam