COMPETITION TRIBUNAL OF SOUTH AFRICA
Case Number: IM196Mar22/INT086Aug22
In the intervention application of:
APL CARTONS (PTY) LTDApplicant
And
CORRUSEAL GROUP (PTY) LTD First Respondent
NEOPAK HOLDINGS (PTY) LTD Second Respondent
COMPETITION COMMISSION OF SOUTH AFRICA Third Respondent
In re the intermediate merger between:
CORRUSEAL GROUP (PTY) LTD Primary Acquiring Firm
And
NEOPAK HOLDINGS (PTY) LTD Primary Target Firm
: A Wessels (Presiding Member)
: M Mazwai (Tribunal Member)
Panel
: L Mncube (Tribunal Member)
Heard on : 23 September 2022
Decided on : 27 September 2022
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ORDER
___________________________________________________________________
On application by APL Cartons (Pty) Ltd (“APL”) to intervene as a participant in the
above matter and by agreement between APL and the First and Second Respondents,
and as abided by the Competition Commission, the Tribunal hereby orders the
following:
1. The applicant, APL, is granted leave to intervene in the consideration of the
intermediate merger proceedings before the Tribunal under the abovementioned
case number in terms of section 53(1)(c) of the Competition Act 89 of 1998, as
amended.
2. APL's participation in the proceedings shall be limited to the following issues or
theories of harm:
2.1. the competitive dynamics of the upstream and downstream markets;
2.2. the potential for the merger to result in the foreclosure of APL as a
consequence of Corruseal limiting or eliminating APL's ability to procure
recycled paper at competitive prices from Neopak's mill;
2.3. the consequent adverse impact on competition in the downstream
market for the supply of corrugated cartons; and
2.4. any conditions which may be proposed to regulate the merger, if it were
to be approved.
(collectively the “Scope of Intervention”)
3. Subject to the Scope of Intervention, APL’s participation in the merger
proceedings shall include the right to:
3.1. attend all pre-hearing conferences;
3.2. adduce factual evidence and present argument;
3.3. request the Tribunal to direct, summon and/or order any person to
appear at the hearing, or to produce any book, document or item for
purposes of such hearing;
3.4. cross-examine witnesses;
3.5. inspect any books, documents and other items filed by any participants
in the merger proceedings, including inspection by APL’s legal
representatives, subject to appropriate confidentiality undertakings, of
any information filed by any participants subject to a claim of
confidentiality;
3.6. access to the Commission's file which has been referred to the Tribunal
in this matter (“Record”), including access by APL’s legal
representatives, subject to appropriate confidentiality undertakings, to
information contained in the record which is subject to a claim of
confidentiality; and
3.7. participate in any interlocutory proceedings.
4. The applicant’s rights granted in paragraph 3 above will be subject to:
4.1.any limitations on their exercise imposed by the Tribunal from time to time
during the course of the proceedings; and
4.2.adherence by the applicant to any timetable set by the Tribunal for the
proceedings before it in respect of the merger.
5. The Commission is directed to provide APL with a non-confidential version of the
Record within 7 (seven) days of this order.
6. The Commission is directed to provide APL’s legal representatives with access
to any information other than confidential third-party information contained in the
Record, which is subject to a claim of confidentiality, subject to appropriate
confidentiality undertakings by APL’s legal representatives.
7. The Commission is directed to facilitate access by APL’s legal representatives to
third-party confidential information contained in the Record, subject to
appropriate confidentiality undertakings by APL’s legal representatives. Such
third-party confidential information will be provided to APL’s legal representatives
only if the relevant third party has given its consent, and within 3 (three) days of
such consent having been provided by the third party.
8. APL’s legal representatives are directed to furnish the Commission with the
requisite confidentiality undertakings within 7 (seven) days of this order.
9. There is no order as to costs.
27 September 2022
Presiding Member
Mr A Wessels
Date
Concurring: Ms Mondo Mazwai and Prof Liberty Mncube