COMPETITION TRIBUNAL OF SOUTH AFRICA
Case no.: LM156DEC21/OTH121Sep22
In the application to adduce further evidence between:
NORTHAM PLATINUM HOLDINGS LIMITED
Applicant
And
IMPALA PLATINUM HOLDINGS LIMITED
First Respondent
ROYAL BAFOKENG PLATINUM LIMITED
Second Respondent
COMPETITION COMMISSION OF SOUTH AFRICA
Third Respondent
THE MINISTER OF TRADE, INDUSTRY AND
COMPETITION
Fourth Respondent
Case no.: LM156DEC21
In re: the large merger between:
IMPALA PLATINUM HOLDINGS LIMITED
Primary Acquiring Firm
And
ROYAL BAFOKENG PLATINUM LIMITED
Primary Target Firm
Panel: Y Carrim (Presiding Member)
A Ndoni
2
HAVING read the documents placed on record and having heard counsel for the
parties the Tribunal makes the following order:
A: Orders in relation to the application.
[1] The application for discovery of all of Impala Platinum Holdings Limited
purchase of concentrate agreements and/or all offtake
agreements to which it is a party, or to which it has been a party over the past ten
years, is dismissed
[2] The application for discovery of Imp internal documents discussing,
presenting, analysing, or reporting the actual effective capacity, and capacity
utilisation at the smelting, conversion, and base metals removal stages, split into
the treatment of primary concentrate produced internally or by affiliates and
primary concentrate produced by third party junior miners, as well as forecasts
and estimates over the foreseeable future, 1 is granted only to the extent detailed
below:
2.1 The strategic documents serving before the Board reflecting
2.1.1 the current nameplate and real capacity of its smelters;
and
2.1.2 the current and forecast utilisation or of the smelters.
2.2 Implats must provide the documents in para 2.1 by no later than 16h00
on Wednesday 5 October 2022 , subject to the furnishing of
appropriate confidentiality undertakings.
1 Prayer 1.2 of the Notice of Motion.
I Valodia
Heard on: 28 September 2022
Order issued on: 30 September 2022
ORDER
3
[3] The applications for the Tribunal to subpoena documents from Anglo American
Platinum Limited and Sibanye Stillwater Limited, in terms of section
54 of the Competition Act and Tribunal Rule 47,2 are dismissed on the basis that
Northam
on account of Royal Bafokeng Platinum Limited some of its
capacity from Amplats to Implats in static market conditions; understanding the
likelihood and impact of this can be assessed with reference to the merging parties
documents and witnesses already due to come before the Tribunal.
[4] The application for Northam to lead a factual expert witness, Mr Damian Smith3is
granted on the basis that he is required to testify on his own knowledge and
experience to the dynamics of contracting with junior miners and their relative
bargaining positions vis-à-vis Implats, Amplats (if he has any knowledge) and
Northam. If Mr Smith is unable to testify on these issues another Northam senior
manager/executive with personal knowledge and experienced is permitted to
/her witness
statement must be filed by no later than 16h00 on 14 October 2022.
[5] The application to bring Mr Patrick Smith of RBB Economics to testify before the
Tribunal as an expert witness for Northam4 is dismissed, on account of the fact
that theories of harm have already been articulated in its papers and
the Tribunal wishes to acquire insights from factual witnesses about the vertical
relationships in the value chain and the de facto implementation of the contractual
relationships and capacity and utilisation.
[6] The application to have one factual witness from each of two anonymous junior
miners to testify as factual witnesses in a hearing where the merging parties are
completely excluded from knowing what case is brought against them and by
whom (in camera hearing) 5 is dismissed on the basis that this would be manifestly
unfair to the merging parties and does not accord with the Constitution and the
principles of natural justice. However
2 Prayers 2 and 3 of the Notice of Motion.
principles of natural justice. However
2 Prayers 2 and 3 of the Notice of Motion.
3 Prayer 4 of the Notice of Motion.
4 Prayer 5 of the Notice of Motion.
4
6.1 The Commission is required to identify and lead a factual witness from
a junior miner who is able to testify to the market dynamics of
contracting with smelters downstream and provide an opinion on any
potential merger remedies proposed.
6.2 This evidence will be canvassed in open court subject to the ordinary
confidentiality regimes,6 where confidentiality is at issue.
6.3 The Commission must file the witness statement of this junior miner by
no later than on 16h00 on 14 October 2022.The application for
Northam to cross-examine any witnesses called by any other party7 is
granted. The merging parties and the Commission are also afforded
an opportunity to cross examine any witnesses.
[7] There is no order as to costs.
B: Orders in relation to the further conduct of proceedings
[8] The merging parties are required to bring one knowledgeable factual witness from
each of them who is able to testify to the theories of harm raised by Northam and,
if relevant, in rebuttal of the evidence of any other witness.
[9] The merging parties must provide the identities and the witness statements of
these witnesses by no later than 16h00 on Wednesday 26 October 2022.
[10] The Tribunal will allocate times for evidence in chief and cross examination of
witnesses and provide directions for the further conduct of proceedings nearer the
time of the hearing and parties will be advised accordingly.
30 September 2022
Ms Yasmin Carrim Date
Mrs Andiswa Ndoni and Prof Imraan I. Valodia concurring.
6 In terms of the Unilever regime read with section 44 of the Competition Act.
7 Prayer 7 of the Notice of Motion.