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ANNEXURE A:
Royal Bafokeng Platinum Limited
And
Maseve Investments 11 (Pty) Ltd
CASE NUMBER: 2017Oct0027
CONDITIONS
1. DEFINITIONS
The following expressions shall bear the meanings assigned to them below and cognate
expressions bear corresponding meanings –
1.1 “Acquiring Firm” means Royal Bafokeng Platinum Limited;
1.2 “Affected Employees” mean the 63 permanent employees and the 1 559 contract
workers of Maseve who were retrenched prior to the proposed transaction; and the 58
contract workers of Maseve who are currently working at the Mine and whose contracts
have been cancelled as a result of the Mine being under care and maintenance;
1.3 “Approval Date " means the date referred to in the Tribunal’s merger clearance
certificate;
1.4 “Commission" means the Competition Commission of South Africa;
1.5 “Competition Act" means the Competition Act 89 of 1998, as amended;
1.6 “Concentrator Plant” means the Maseve concentrator plant;
1.7 “Conditions" mean these conditions;
1.8 “Days” mean any calendar day which is not a Saturday, Sunday or an official holiday in
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South Africa;
1.9 “Implementation Date” means the date on which the Merger is implemented;
1.10 “Plant Transaction” means the acquisition as a going concern of the Concentrator Plant
and the surface rights in respect of the immovable property owned by Maseve which may
be required by RBPlat for purposes of accessing and operating the Concentrator Plant.
1.11 "Proposed Merger" means the acquisition of the Target Firm by the Acquiring Firm;
1.12 “LRA” means the Labour Relations Act 66 of 1995, as amended;
1.13 “Merging Parties” means the Acquiring Firms and the Target Firms;
1.14 “Mine” means the Maseve mine owned by the Target Firm, which is currently under
care and maintenance;
1.15 “Rules” mean the Rules for the Conduct of Proceedings in the Competition Commission
and the Rules for the Conduct of Proceedings in the Competition Tribunal;
1.16 “Target Firm” means Maseve Investments 11 (Pty) Ltd; and
1.17 “Tribunal” means the Competition Tribunal of South Africa;
1.18 “20 individuals” mean the 20 permanent employees , whose names are listed in
Appendix I to these conditions, currently working at the Mine and who will be offered
employment by the Acquiring Firm as part of the implementation of the proposed
transaction.
2. CONDITIONS TO THE APPROVAL OF THE MERGER
2.1 The Acquiring Firm shall employ 115 employees at the Concentrator Plant by 30 July
2018. First preference will be given to the 115 employees that were previously employed
at the concentrator plant. To the extent that these employees are no longer available,
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RBPlat will endeavour to source employees from the local community in Rustenburg, in
line with its current recruitment policy.
2.2 The Acquiring Firm, upon the implementation of the Proposed Merger, shall use
reasonable endeavours to inform the Affected Employees, of any relevant job
opportunities which arise at the Mine. To the extent that any of the Affected Employees
apply for these jobs, and to the extent that such employees are suitably qualified for the
relevant job, the Acquiring Firm will give preference to the Affected Employees over other
equally qualified applicants who are not part of the Affected Employees.
2.3 The Acquiring Firm will forward a communique via SMS, email and/or community notice
boards, directly or indirectly through third party service providers to all the Affected
Employees, providing such Affected Employees with the information and details of the
position as well as contact details as to whom to contact within the Acquiring Firms
human resource department to enable them to apply should they wish to do so. Under
all circumstances the onus will rest on the Affected Employees to apply for a vacant
position.
2.4 Should the Affected Employee meet the relevant criteria and job requirements in terms
of qualification, experience and skills required, the application will be facilitated through
the Acquiring Firms human resource department.
2.5 The Acquiring Firm shall take over the 20 permanent employees currently employed at
the Mine, whose names are listed in Appendix I to these conditions, in accordance with
Section 197 of the LRA at no less favourable terms than they currently enjoy, within 30
(thirty) Days from the implementation of the Plant Transaction.
MONITORING OF COMPLIANCE WITH THE CONDITIONS
2.6 The Merging Parties shall circulate a copy of the Conditions to all their employees and
their relevant trade unions or employee representatives within 5 (five) Days of the
Approval Date.
Approval Date.
2.7 As proof of compliance thereof, a Chief Executive Officer of the Merging Parties shall
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within 10 (ten) Days of circulating the Conditions, submit an affidavit attesting to the
circulation of the Conditions and provide a copy of the notice that was sent to the
employees.
2.8 The Acquiring Firm shall inform the Commission of the Implementation Date within 5
(five) Days of it becoming effective.
2.9 As p roof of compliance with clause 2 .5 above, the Chief Executive Officer of the
Acquiring Firm shall within 10 (ten) Days of employment being offered to the employees
in clause 2.5 above, submit proof of, and an affidavit attesting to, the employees being
offered employment together with any other written supporting documentation to this
effect.
2.10 The Acquiring Firm shall provide the Commission with a detailed report setting out its
efforts and compliance with clause 2.1 to 2 .4 within 6 (six) months from the Approval
Date. The report shall be accompanied by the following:
2.10.1 written and documentary proof of the employment of the 115 employees as stipulated in
clause 2.1 of the Conditions; including efforts made to communicate the right of first
preference to those previously employed ; and proof in the form of an affidavit, duly
deposed of by the Chief Executive Officer of the Acquiring Firm, attesting to the accuracy
of the contents of the report.
2.11 The Acquiring Firm shall provide the Commission with a detailed report setting out its
efforts and compliance with clause 2.2 to 2 .4 of the Conditions on each anniversary of
the Implementation Date for a period of 2 (two) years. The report shall be accompanied
by an af fidavit, duly deposed of by the Chief Executive Officer of the Acquiring Firm,
attesting to the accuracy of the contents of the report.
2.12 In the event that the Commission receives any complaint in relation to non -compliance
with the above Conditions, or oth erwise determines that there has been an apparent
breach by the Merging Parties of these Conditions, the breach shall be dealt with in terms
breach by the Merging Parties of these Conditions, the breach shall be dealt with in terms
of Rule 39 of the Competition Commission Rules.
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2.13 Any individual who believes that the Merging Parties have not complied with or have
acted in breach of these Conditions may approach the Commission.
2.14 The Merging Parties shall be entitled, upon good cause shown, to apply to the Tribunal
for a waiver, relaxation, modification and/or substitution of one or more of the Conditions.
2.15 All correspondence in relation to this Condition should be forwarded to:
mergerconditions@compcom.co.za.