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Dorstfontein Coal Mines (Pty) Ltd and the Business of Bochabela Mining (Pty) Ltd v SBS Mining (Pty) Ltd (LM099Sep25) [2026] ZACT 7 (4 March 2026)
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COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No.: LM099Sep25
In
the matter between:
DORSTFONTEIN
COAL MINES PROPRIETARY
Primary Acquiring Firm
LIMITED
and
BOCHABELA
MINING PROPRIETARY LIMITED
Primary Target
SBS
MINING PROPRIETARY LIMITED
Primary Target
Panel:
Andreas Wessels (Presiding Member)
Andiswa Ndoni (Tribunal
Member)
Geoff Budlender (Tribunal
Member)
Heard
on:
12 and 15 December 2025
Date
of last submissions: 27 February
2026
Decided
on:
04 March 2026
ORDER
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 subject to the conditions attached
hereto; and
2.
a Merger Clearance Certificate be issued in terms of Competition
Tribunal rule 35(5)(a).
Presiding
Member
04/03/26
Mr
Andreas
Wessels
Date
Concurring:
Ms Andiswa Ndoni and Mr Geoff Budlender
CONFIDENTIAL
ANNEXURE
A
IN
THE LARGE MERGER BETWEEN
DORSTFONTEIN
COAL MINES PROPRIETARY LIMITED
AND
THE
BUSINESSES
OF
BOCHABELA
MINING
PROPRIETARY
LIMITED
AND
SBS
MINING PROPRIETARY LIMITED
CT
CASE NUMBER
:
LM099Sep25
CONDITIONS
1.
DEFINITIONS
AND INTERPRETATION
1.1.
In this document the following expressions bear the meanings assigned
to them below and related expressions bear corresponding
meanings -
1.1.1.
"Acquiring
Firm"
means Katlego Coal
Proprietary Limited;
1.1.2.
"Approval
Date"
means the date
referred to in the Tribunal's clearance certificate (Form CT 1O);
1.1.3.
"Bochabela"
means Bochabela Mining Proprietary
Limited;
1.1.4.
"Business Days"
mean any day other than a Saturday,
Sunday or official public holiday in the Republic of South Africa;
1.1.5.
"Commission"
means the Competition Commission
of South Africa duly established under the
Competition Act;
>
1.1.6.
"Commission
Rules"
mean the
Rules for the Conduct of Proceedings in the Commission;
1.1.7.
"
Competition
Act"
means
the
Competition Act 89 of 1998
, as amended;
1.1.8.
"Conditions"
mean, collectively, the
conditions referred to in this document;
1.1.9.
"DCM"
means Dorstfontein Coal Mines Proprietary
Limited;
1.1.10.
"Implementation Date"
means the date,
occurring after the Approval Date, on which the Merger is implemented
by the Merger Parties;
1.1.11.
"Katlego
Coal"
means Katlego Coal
Proprietary Limited, the holding company and controller of DCM;
1.1.12.
"LRA"
means the
Labour Relations Act, 66 of 1995
, as
amended;
1.1.13.
"Merger"
means the Acquiring Firm's acquisition of
the SBS and Bochabela Target Businesses;
1.1.14.
"Merged
Entity"
means the Acquiring
Firm and the SBS and Bochabela Target Businesses after the
Implementation Date;
1.1.15.
"Merger
Parties"
mean the
Acquiring Firm and the SBS and Bochabela Target Businesses;
1.1.16.
"Moratorium"
means the period between the Approval
Date and the Implementation Date and thereafter, a period of 3
(three) years from the Implementation
Date;
1.1.17.
"SBS and Bochabela Target Businesses"
mean the
business conducted by SBS and Bochabela including the employees of
SBS and Bochabela;
1.1.18.
"SBS"
means SBS Mining Proprietary Limited;
1.1.19.
"South Africa"
means the Republic of South Africa;
1.1.20.
"Target Firms"
mean the SBS and Bochabela Target
Businesses;
1.1.21.
"Tribunal"
means the Competition Tribunal of
South Africa, a statutory body established in terms of
section 26
of
the
Competition Act; and
1.1.22.
"Tribunal
Rules"
mean the Rules for the
Conduct of Proceedings in the Tribunal.
2.
APPLICATION
OF
SECTION
197
OF
THE
LRA
2.1.
The original agreement entered into among the Merger Parties
contemplated that DCM would acquire the assets of the Target
Firms
and that the employees of the Target Firms would be transferred to
Katlego Coal. This transaction structure gave rise to
a debate about
the application of section 197 of the LRA.
2.2.
In order to resolve the debate and ensure the automatic transfer of
the employees to Katlego Coal in accordance with
section 197 of the
LRA, the SBS and Bochabela Target Businesses (including the assets
and the employees of the Target Firms) will
cumulatively be acquired
by Katlego Coal. Consequently, Katlego Coal will be regarded as being
the Acquiring Firm in this merger.
2.3.
The Merger Parties shall ensure that the Target Firms' assets are
transferred to the Acquiring Firm and the employees
of the Target
Firms are transferred to the Acquiring Firm in terms of section 197
of the LRA.
3.
MORATORIUM
ON RETRENCHMENTS
3.1.
The Merger Parties shall not retrench any employees as a result of
the Merger for the duration of the Moratorium.
3.2.
For the sake of clarity, retrenchments in terms of 3.1. above do not
include (i) voluntary retrenchment and/or voluntary
separation
arrangements; (ii) voluntary early retirement packages; (iii)
retrenchments as a result of unreasonable refusals to
be redeployed
in accordance with the provisions of the LRA; (iv) resignations or
retirements in the ordinary course of business;
(v) retrenchments
lawfully effected for operational requirements; (vi) terminations in
the ordinary course of business, including
but not limited to,
dismissals as a result of misconduct or poor performance; and (vii)
any decision not to renew or extend a contract
of a fixed term third
party contract employee or a contract with a third party.
3.3.
Where the Merger Parties retrench any employee in South Africa during
the Moratorium period, the retrenchment will be
presumed to be as a
result of the Merger, unless the Merger Parties demonstrate
otherwise.
3.4.
The Merger Parties undertake that the Acquiring Firm will comply with
applicable labour legislation and implement a relevant
labour law
compliance programme. This undertaking is binding on the Merger
Parties, and the Commission can request compliance reports
from time
to time to ascertain compliance with the undertaking.
4.
RETRENCHMENT
ENTITLEMENT
BENEFITS
4.1.
Within 5 (five) Business Days of the Implementation Date, the Merger
Parties will transfer to an escrow agent and instruct
it to hold in
trust, in an interest-bearing account, for a period of 5 (five)
years, a sum of money equivalent to the Target Firms
employees'
minimum legally entitled severance benefit as contemplated by section
41(2) of the Basic Conditions of Employment Act
(No. 75 of 1997),
which severance benefit will be measured as at the Implementation
Date.
4.2.
Should the Acquiring Firm retrench any of the employees of the Target
Firms, for operational reasons or otherwise, within
a period of 5
(five) years from the Implementation Date, the Acquiring Firm will
utilise the funds and interest held in escrow
as contemplated in 4.1
above, in order to pay out the employee severance benefits due to the
Target Firms' employees who will be
retrenched. For the avoidance of
doubt, the funds held in trust by the escrow agent as contemplated in
4.1 above can be used solely
for the purpose of this clause 4.2.
4.3.
For the sake of clarity, retrenchments in terms of 4.2 above do not
include (i) voluntary retrenchment and/or voluntary
separation
arrangements; (ii) voluntary early retirement packages; (iii)
retrenchments as a result of unreasonable refusals to
be redeployed
in accordance with the provisions of the LRA; (iv) resignations or
retirements in the ordinary course of business;
(v) dismissals as a
result of misconduct or poor performance; and (vii) any decision not
to renew or extend a contract of a fixed
term third party contract
employee or a contract with a third party.
4.4.
On the fifth anniversary of the Implementation Date, the Acquiring
Firm will be relieved of its obligation to hold the
Target Firms'
employees minimum severance benefits in trust and can instruct its
appointed escrow agent to refund any remaining
balance held in trust
to the Acquiring Firm, together with any interest which has accrued
to the Acquiring Firm while the funds
were held in trust.
5.
MONITORING
OF COMPLIANCE
WITH THE
CONDITIONS
5.1.
The Merger Parties shall circulate a copy of the Conditions to all of
the employees of the SBS and Bochabela Target Businesses,
their
employee representatives and trade unions within 5 (five) Business
Days of the Approval Date.
5.2.
As proof of compliance with 5.1 above, a director of the Merger
Parties shall within 10 (ten) Business Days of circulating
the
Conditions to employees, submit to the Commission an affidavit
attesting to the circulation of the Conditions and provide a
copy of
the notice that was sent to the employees in that regard.
5.3.
The Acquiring Firm shall inform the Commission in writing of the
Implementation Date within 5 (five) Business Days of
its occurrence.
5.4.
Within 5 (five) Business Days of the Implementation Date, the Merger
Parties shall provide the Commission, the employee
representatives
and the trade unions that represent the employees of the Target Firms
with the amount of the deposit in escrow
as contemplated in paragraph
4.1.
5.5.
Within 20 (twenty) Business Days of the Implementation Date, the
Merger Parties shall provide the Commission, the employee
representatives and the trade unions that represent the employees of
the Target Firms with proof of deposit in escrow of the amount
contemplated in paragraph 4.1.
5.6.
For the duration of the Conditions, on each anniversary of the
Implementation Date, the Acquiring Firm shall provide
the Commission
with a report confirming compliance with these Conditions. The report
shall be accompanied by an affidavit attested
to by a senior official
of the Acquiring Firm, confirming the Acquiring Firm's compliance
with these Conditions.
5.7.
The Commission may request any additional information from the Merged
Entity, which the Commission may, from time to
time, deem necessary
for purposes of monitoring the extent of compliance with these
Conditions.
6.
APPARENT BREACH
In
the event that the Commission receives any complaint in relation to
non-compliance with the above Conditions or otherwise determines
that
there has been an apparent breach by the Merger 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.
7.
VARIATION
The
Merger Parties and/or the Commission may at any time, and on good
cause shown, and on notice to the other, apply to the Tribunal
for
any of the Conditions to be waived, relaxed, modified or substituted.
The employee representatives and trade unions that represent
the
employees of the Target Firms shall be entitled to oppose such
application.
8.
GENERAL
All
correspondence in relation to these Conditions must be submitted to
the following email addresses:
[email protected]
and
[email protected]