competition trlbunal .... ,, .. ,~,~-
COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: LM110Sep16
In the matter between:
THE CULLINAN HOTEL (PTY) LTD
And
THE BUSINESSES AND UNDERLYING PROPERTIES OF THE
SANDTON SUN, THE INTERCONTINENTAL SANDTON
TOWERS, THE GARDEN COURT SANDTON CITY; THE
SANDTON CONVENTION CENTRE PROPERTY; AND THE
RENTAL ENTERPRISES IN RESPECT OF THE SANDTON
CONVENTION CENTRE AND VIRGIN ACTIVE
Panel
Heard on
Order Issued on
Reasons Issued on
APPROVAL
: Norman Manoim (Presiding Member)
: Yasmin Carrim (Tribunal Member)
: Medi Mokuena (Tribunal Member)
: 10 November 2016
: 1 O November 2016
: 7 December 2016
REASONS FOR DECISION
Acquiring Firm
Target Firm
[1] On 10 November 2016, the Competition Tribunal approved the large merger
between The Cullinan Hotel (Pty) Ltd ("Cullinan") and the businesses and
underlying properties of the Sandton Sun, the Intercontinental Sandton Towers
and the Garden Court Sandton City ("the transferred hotels") as well as the
Sandton Convention Centre property ("SCC property") and the rental
enterprises in respect of the Sandton Convention Centre ("SCC rental
enterprises") and Virgin Active Alice Lane {"Virgin Active rental enterprises").
[2] The reasons for the approval follow.
PARTIES TO THE TRANSACTION AND THEIR ACTIVITIES
Primary Acquiring Firm
[3] The primary acquiring firm is Cullinan, a joint venture between Southern Sun
Hotel Interest ("SSHI") and Liberty Holdings ("Liberty'') in terms of which, SSHI
has a 60% shareholding and Liberty 40%. In a previous decision, the Tribunal
confirmed that SSHI exercises sole control over Cullinan. 1
[4] SSHI is a wholly owned subsidiary of Southern Sun Hotels (Pty) Ltd ("SSH").
On 10 August 2016, the Tribunal conditionally approved a large merger
between SSH and Hospitality Property Fund ("HPF"). The result of the
approved transaction was that HPF became a majority controlled subsidiary of
SSH.2
[5] SSH is an indirectly wholly-owned subsidiary of Tsogo Sun Holdings Limited
("Tsogo Holdings") which is, in turn a 49.96% controlled subsidiary of Tsogo
Investment Holding Company (Pty) Ltd ("Tsogo Investment"). Tsogo
Investment is controlled by TIHC Investments (Pty) Ltd which is, in turn,
controlled by Hosken Consolidated Investments Ltd ("HCI"), a firm listed on the
Johannesburg Stock Exchange.
[6] HCI is thus, through various investment corporations, the Tsogo Group's
principle shareholder .
1 Southern Sun Hotel Interests (Pty) Ltd and the Cullinan Hotel (Pty) Ltd CT Case No.:LM191Jan14
para 5.
2 Southern Sun Hotels (Pty) Ltd and Hospitality Property Fund Limited CT Case No.: LM218Jan16.
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[7] The Tsogo Group is a hotel, gaming and entertainment firm with operations
across the globe. It's non-casino hotel interests are held through and managed
by SSH and its respective subsidiaries
Primary Target Firms
[8] The target firms consist of the business and underlying properties in respect of
the Sandton Sun Hotel, the Intercontinental Johannesburg Sandton Towers
Hotel and the Garden Court Sandton City Hotel ("the three transferred hotels"),
and the property on which the Sandton Convention Centre ("SCC") and Virgin
Active Alice Lane ("Virgin Active") are located, as well as the corresponding
rental enterprises.
[9] The business and underlying property of the three transferred hotels are owned
by Liberty Holdings Limited ("Liberty") which possesses a 75% shareholding,
with the remaining 25% being held by Pareto Limited ("Pareto"). Although the
property underlying and the business of the hotels is owned by Liberty and
Pareto, the hotels are managed by SSHI. SSHI is thus responsible for the
management and operation of the hotels belonging to Liberty and Pareto,
primarily because firms such as Liberty do not have the expertise in operating
hotels.
[1 O] The SCC and Virgin Active are both situated on separate portions of erf 596 in
the Sandton Business District. The property underlying the SCC and Virgin
Active is owned by Liberty and Pareto.3 The rental enterprises of such property
are conducted by Liberty, Pareto and FHP Managers (Pty) Ltd ("FHP"). Pre
transaction, Liberty, Pareto and FHP lease the portion of the property
underlying the SCC to Tsogo Sun Casinos (Pty) Ltd4 which owns and manages
the SCC business conducted therefrom. Liberty, Pareto and FHP also lease the
portion of the property underlying Virgin Active to a third party which owns and
manages the Virgin Active business.
3 Liberty possesses a 75% shareholding in the property, with the remaining 25% belonging to Pareto.
4 Tsogo Sun Casinos (Pty) Ltd is a subsidiary of Tsogo Sun Gaming (Pty) Ltd, which is ultimately
controlled by Tsogo Holdings.
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PROPOSED TRANSACTION AND RATIONALE
[11] When the transaction came to the Tribunal for hearing, the merging parties
indicated that they were uncertain about which entity between Cullinan or a
combination of HPF and a subsidiary of SSHI called Reshub would be the
primary acquiring firrn/s. They sought approval for both possibilities.
[12] Initially when the transaction was notified to the Commission Cullinan was the
primary acquiring firm. However, in subsequent correspondence, the merging
parties indicated that HPF, a firm that also owns the property underlying the
Raddison Blu Gautrain Hotel in the Sandton node, might be the primary
acquiring firm. Raddison, a rival group to the acquiring firm, operates the
Raddison Blu Gautrain Hotel. During the hearing the Tribunal asked whether
the Radisson had been consulted about the proposed transaction and it
appeared it had not.5 The Tribunal also queried why the identity of the primary
acquiring firm had not been finalized and why the parties should be given a
blank cheque in this regard.6 The merging parties sought an opportunity to take
instructions on this and later came back to advise that the Cullinan would be
the primary acquiring firm. This has then been the basis on which we have
analysed the submissions made to us.
[13] In terms of the proposed transaction, Cullinan will acquire the businesses and
the underlying property in respect of the three transferred hotels as going
concerns. These businesses will continue to be managed and operated by
SSHI.
[14] In addition, Cullinan will acquire the property on which the sec and Virgin
Active are located as well as the rental enterprises conducted by Liberty, Pareto
and FHP attached thereto as a going concern. Liberty, Pareto and FHP will
execute a notarial deed of cessions and delegation in respect of rights and
3 The Commission in hearing confirmed that Radisson had not been consulted . See Tribunal Transcript, 10
November 2016, page IO.
6 Tribunal Transcript, 10 November, page 11.
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obligations of the lessors under the existing leases to Cullinan. Post
transaction, Tsogo Sun Casinos will continue to lease the property underlying
the sec.
[15] The acquiring firms submitted that the proposed transaction is in line with the
Tsogo Group's strategy of acquiring its own assets, rather than leasing or
managing properties owned by third parties.
[16] Liberty submitted that the proposed transaction represents an opportunity for it
to realize its investments in the three transferred hotels, as well as the property
underlying the sec and Virgin Active and corresponding rental enterprises.
RELEVANT MARKETS AND IMPACT ON COMPETITION
[17] The merging parties both own properties upon which 3 and 5 star hotels are
situated. The Commission assessed the impact of the merger on the market for
the provision of hotel accommodation (3 star) in the Sandton area and the
market for the provision of hotel accommodation (5 star) in the Sandton area.
[18] In the market for the provision of 3 star hotel accommodation, the Commission
submitted that the merged entity would possess a 36% market share with a
market share accretion of approximately 27%. In the market for the provision
for 5 star accommodation, the merged entity would possess a 29% market
share with a market share accretion of approximately 20.4%.
[19] The merging parties submitted that the proposed transaction will not result in
any change in the competitive position of the relevant hotels given that the
proposed transaction only involves a change of ownership of the underlying
businesses and properties of such. They submitted that pre-merger, SSHI
determines the rates and conditions of trade in respect of the three transferred
hotels and the sec, and that this will continue, unaltered, post transaction. This
means, on the merging parties view, that there is no accretion in market share
in the provision of short term accommodation and thus no change in the
in the provision of short term accommodation and thus no change in the
competitive dynamics relating to such. The Commission agreed with this view.
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[20] Additionally, the Commission and merging parties submitted that, post
transaction, the merged entity will continue to face constraint in both markets
owing to the presence of strong competition in the Sandton area.
[21] The sec is a stand-alone commercial exhibition and conference facility and
Virgin Active is a gym. The acquiring group does not own or manage similar
types of properties and thus the acquisition of these properties raises no
competition concerns.
[22] The merger does not present a threat of preventing or lessening competition in
any of the identified markets.
CONCLUSION
[23] The merger is unlikely to substantially prevent or lessen competition in the
market for the provision of 3 and 5 star hotel accommodation services in the
Sandton area given that there is no real change in the underlying competition
dynamics of such markets.
[24] The merger additionally does not raise any public interest concerns.
[25] Accordingly we approved the transaction without conditions.
min Carrim and Medi Mokuena concurring
TribunalResea~he~ Alistair Dey-Van Heerden
For the Merging Parties: Anthony Norton of Nortons Inc.
For the Commission: Zanele Hadebe
7 December 2016
Date
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