The increasing significance of public interest considerations in the South African merger control context

August, 2016

The increasing significance of public interest considerations in the South African merger control context – By Christopher Kok (partner, Webber Wentzel), Tafadzwa Chiposi (former professional support lawyer, Webber Wentzel), and Elisha Bhugwandeen (professional support lawyer, Webber Wentzel)

Public interest considerations have played an increasingly prominent role in merger assessments undertaken by the South African competition authorities over the past few years. The recent transaction leading to the creation of Africa’s largest Coca-Cola bottler, Coca-Cola Beverages Africa Limited (“CCBA”), was no exception.

Introduction

The CCBA transaction, which was ultimately conditionally approved by the South African Competition Tribunal (the “Tribunal“), involved intervention from numerous parties including the Minister of Economic Development (the “Minister“), market participants and trade unions. Each of these parties raised varying concerns with the transaction, as did the South African Competition Commission (the “Commission“). Although most of these concerns were addressed after extensive negotiations between the parties, the process involved in achieving this outcome provides interesting perspective into the current prominence that the South African competition authorities afford to public interest considerations, even in the absence of clear competition law concerns or theories of harm.

Details of the Coca-Cola Bevera