COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: LM201Mar23
In the matter between:
BidAir Cargo (Pty) Ltd Primary Acquiring Firm
and
Interloc Freight Services (Pty) Ltd Primary Target Firm
Further to the recommendation of the Competition Commission in terms of section
14A(1)(b) of the Competition Act, 1998 (“the Act”) the Competition Tribunal orders that–
1. the merger between the abovementioned parties be approved in terms of section
16(2)(b) of the Act; and
2. a Merger Clearance Certificate be issued in terms of Competition Tribunal Rule
35(5)(a).
04 October 2023
Presiding Member
Adv. Jerome Wilson SC.
Date
Concurring: Professor Imraan Valodia and Mr Andreas Wessels
Panel : J Wilson (Presiding Member)
: AW Wessels (Tribunal Member)
: I Valodia (Tribunal Member)
Heard on
Last submission
:
:
22 August 2023
21 September 2023
Order issued on : 04 October 2023
ORDER
Signed by:Jerome Wilson
Signed at:2023-10-04 22:31:27 +02:00
Reason:Witnessing Jerome Wilson
c
tition Tribunal:
COMPETIT ION TRIBUNAL OF SOUTH AFRICA
Notice CT 10
About this N oti ce
Merg er Clearance Certificate
Date: 04 Oct ober 2023
This notice is issued in
terms of sect ion 16 of
To: MVR Attorneys
the Compet ition Act.
You may appeal
against this decision to
the Compet ition
Appeal Court within 20
business day
s.
Contacting
the T ribunal
The Competition Tribunal
Private Bag X24
Sunny side
Pretoria 0132
Republic of South Africa
tel: 27 12 394 3300
fax: 27 12 394 0169
e-mail: ct s a@comptr ib.co.za
Case N umber: LM201Mar 23
BidAir Cargo (Pty) Ltd and Int erloc Freight Services (Pty) Ltd
You applied to the Competition Commission on 20 March 2023 for
merger approval in accordance with Chapter 3 of t he Compet ition
Act.
Your merger was referred to the Competition Tribunal in terms of
sect ion 14A of t he Act , or w as t he subject of a Request for
consideration by the Tribunal in terms of sect ion 16(1) of t he Act.
After rev iewing all relev ant information, and t he recommendat ion or
decision of t he Compet ition Commission, t he Competit ion Tribunal
approv es the merger in t erms of sect ion 16(2) of t he Act , for the
reasons s et out in the Reasons for Decision.
This approv al is subject to:
no condit ions.
X t he condit ions list ed on t he att ached s heet.
The Competition Tribunal has t he aut hority in terms of sect ion 16(3)
of the Compet ition Act to rev oke this approv al if
a) it was grant ed on the basis of incorrect informat ion for which
a party t o the merger w as responsible.
b) the appr oval was obt ained by deceit.
c) a firm concerned has breached an obligat ion att ached t o this
appr oval.
Th e Re gis trar, Comp e
This form is pr escribed by the Minister of Trade and Industry in terms of s ection 27 (2) of the Compet ition Act 1998 ( Act No. 89 of 1998).
CONFIDENTIAL
ANNEXURE A: CONDITIONS
IN THE LARGE MERGER INVOLVING:
BIDAIR CARGO (PROPRIETARY) LIMITED
AND
INTERLOC FREIGHT SERVICES (PROPRIETARY) LIMITED
CASE NUMBER: LM201MAR23
1. DEFINITIONS
In this document, the expressions used below will have the appropriate meanings
assigned to them and the following and related expressions will bear the following
meanings:
1.1 “Acquiring Firm” means BidAir;
1.2 "Approval Date " means the date referred to on the Tribunal’s merger
clearance certificate, being the date on which the Merger is approved in terms
of the Competition Act;
1.3 “BidAir” means BidAir Cargo Proprietary Limited;
1.4 “CAA” means the South African Civil Aviation Authority, a Schedule 3A public
entity in terms of the Public Finance Management Act No. 1 of 1999;
1.5 “Commission” means the Competition Commission of South Africa, a
statutory body established in terms of section 19 of the Competition Act;
1.6 “Competition Act” means the Competition Act, No. 89 of 1998, as amended;
1.7 “Commission Rules” means the Rules for the Conduct of Proceedings in the
Commission;
1.8 “Conditions” means the conditions set out herein;
1.9 "Days" means any calendar day which is not a Saturday, a Sunday, or an
official public holiday in South Africa. A public holiday shall also include such
days as may be declared by the President of South Africa in terms of the Public
Holidays Act 36 of 1994;
1.10 "HDP" means a historically disadvantaged person as contemplated in the
Competition Act;
CONFIDENTIAL
1.11 "Implementation Date" means the date, occurring after the Approval Date,
on which the Merger is implemented by the Merging Parties;
1.12 “Interloc” means Interloc Freight Services Proprietary Limited;
1.13 “Learnership” means a structured learning process for gaining theoretical
knowledge and practical skills in the workplace, leading to a qualification
registered on the NQF;
1.14 “Merger” means the acquisition by BidAir of Interloc as notified to the
Commission under Case No: 2023MAR0027;
1.15 "Merging Parties" means collectively the Acquiring Firm and the Target Firm,
and “Merging Party” means any one of them, as the case may be;
1.16 “NQF” means the National Qualifications Framework as overseen by the
South African Qualifications Authority, established in terms of section 18 of
the Skills Development Act 97 of 1998, as amended;
1.17 “South Africa” means the Republic of South Africa;
1.18 “SMME” means Small, Medium and Micro Enterprises as defined in the
National Small Enterprise Act, Act No. 102 of 1996 (as amended);
1.19 “Target Firm” means Interloc;
1.20 “Tribunal” means the Competition Tribunal of South Africa, a statutory body
established in terms of section 26 of the Competition Act;
1.21 “Tribunal Rules“ means the Rules for the Conduct of Proceedings in the
Tribunal; and
1.22 “Youth” means individuals from the age of 18 to 35.
CONFIDENTIAL
CONDITIONS FOR THE APPROVAL OF THE MERGER
2. COMMERCIAL AVIATION PILOT’S LICENCE PROGRAMME
2.1 The Acquiring Firm will, within 12 months after the Implementation Date,
identify an HDP candidate to sponsor in order for that HDP candidate to obtain
a commercial pilot’s licence at a facility accredited by the CAA.
2.2 The Acquiring Firm’s sponsorship of the HDP candidate will be in the amount
of at least expended over a 2 (two) year
period post the identification of a suitable HDP candidate.
3. HDP / SMME SUPPLIER SUPPORT
3.1 The Acquiring Firm will contribute a minimum of
or 2% of the Acquiring Firm’s net profit after
tax - whichever is greater - in interest and security-free loans, or any other
initiative aimed at preferential procurement, supplier development and
enterprise development, for the Acquiring Firm’s SMME and/or HDP suppliers
in the first twelve-month period following the Implementation Date.
3.2 Thereafter, the Acquiring Firm will contribute 2% of the Acquiring Firm’s net
profit after tax each year, in interest and security-free loans, or any other
initiative aimed at preferential procurement, supplier development and
enterprise development, for the Acquiring Firm’s SMME and/or HDP suppliers
for a period of 4 (four) years.
4. SMME ENTERPRISE DEVELOPMENT
4.1 The Acquiring Firm will contribute
or at least 1% of the Acquiring Firm’s net profit after tax; - whichever is
greater - in the form of discounts, for the development of at least 4 (four)
SMMEs in the first twelve-month period following the Implementation Date, to
at least 4 (four) SMMEs in the first twelve months following the Implementation
Date.
4.2 Thereafter, the Acquiring Firm will contribute 1% of its net profit after tax each
year, in the form of discounts, for the development of at least 4 (four) SMMEs
for a period of 4 (four) years.
CONFIDENTIAL
5. SKILLS DEVELOPMENT
5.1 The Acquiring Firm will provide a minimum of 12 (twelve) Learnerships to
matric qualified and unemployed HDP Youths, to the aggregate value of
per year, for a
period of 5 (five) years post the Implementation Date.
5.2 The Acquiring Firm will use its best endeavors to absorb the above HDP
Youths into its workforce should suitable vacancies arise. Alternatively, the
Acquiring Firm will use its best endeavors to assist the above HDP Youths
who have undertaken the Learnerships, with finding employment at other
firms.
6. UNDERTAKINGS IN RESPECT OF MARKET PARTICIPANTS
6.1 For a period of five years from the Implementation Date:
6.1.1 There will be no change to the availability, pricing or any other terms and
conditions relating to the Acquiring Firm’s air freight service offering to
market participants as a result of the Merger.
6.1.2 The merged entity will not discriminate against the Target Firm’s
competitors.
6.1.3 The Acquiring Firm will not compel or induce any customers using its air
cargo service to also use its road cargo services, or vice versa.
6.2 The Acquiring Firm and the Target Firm will each display a notice on its
website alerting its customers to these undertakings for a period of one year
from the Implementation Date.
7. MONITORING
7.1 For a period of five years from the Implementation Date, the Acquiring Firm
shall submit a report accompanied by an affidavit deposed to by a senior
executive from the Acquiring Firm to the Commission detailing its compliance
with clauses 2, 3, 4, 5 and 6 of the Conditions annually, on the anniversary of
the Implementation Date.
7.2 The Acquiring Firm shall inform the Commission in writing of the
Implementation Date within 5 (five) Days of the Implementation Date.
7.3 The report referred to in clause 7.1 shall include but not be limited to details
and supporting documents regarding –
7.3.1 The name of the sponsored HDP individual that will conduct a commercial
pilot training course;
pilot training course;
7.3.2 Proof of registration for the commercial pilot training course;
CONFIDENTIAL
7.3.3 The name of each HDPs and/or SMMEs benefitting from the supplier
support initiative and the benefits derived in each case;
7.3.4 The name of each of the SMMEs benefitting from the enterprise
development and the amount contributed to each SMME; and
7.3.5 The numbers, names, and demographic details of each of the HDP Youth
beneficiaries of the Learnership programme.
7.4 The Commission may request such additional information from the Merging
Parties that the Commission may, from time to time, deem necessary for
purposes of monitoring the extent of compliance with these Conditions.
7.5 The conditions in 6 above will no longer be operative should the Acquiring
Firm cease to control the Target Firm for purposes of the Competition Act.
8. APPARENT BREACH
8.1 Should the Commission receive any complaint in relation to non-compliance
with the above Conditions, or otherwise determine that there has been an
apparent breach by the Merging Parties of these Conditions, the breach shall
be dealt with in terms of Rule 39 of the Commission Rules read together with
Rule 37 of the Tribunal Rules.
9. VARIATION OF CONDITIONS
9.1 The Merging Parties and/or the Commission may at any time, on good cause
shown, apply to the Tribunal for the Conditions to be lifted, revised, or
amended.
10. GENERAL
10.1 All correspondence concerning these Conditions must be submitted to the
following email addresses: mergerconditions@compcom.co.za and
ministry@thedtic.gov.za.