Primedia ltd



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IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA

Case No: 39/AM/MAY06

In the matter between:

PRIMEDIA LTD First Appellant

CAPRICORN CAPITAL PARTNERS (PTY) LTD Second Appellant

NEW AFRICA INVESTMENTS LTD Third Appellant

And

THE COMPETITION COMMISSION Respondent

AFRICAN MEDIA ENTERTAINMENT LTD Intervenor

Panel : D Lewis (Presiding Member), N Manoim (Tribunal Member), and Y Carrim (Tribunal Member)

Heard on : 30 January 2008

Delivered on : 09 May 2008

REASONS

[1] This merger has been referred back to this panel of the Tribunal for reconsideration, by the Competition Appeal Court (‘the Court’), following a review of our decision in February 2007(the ‘February decision’) to approve the merger without conditions.1

Background

[2] A brief history of this merger is necessary to explain the context of the matter being sent back to us on review. This merger is an intermediate merger, and thus, in terms of the Competition Act, one that can be approved by the Competition Commission.2 On 26 April 2006, the Competition Commission in its report found the merger would lead to adverse unilateral anticompetitive effects, but thought that these effects could be remedied through the imposition of behavioural conditions.

[3] Unhappy with the way these conditions had been framed, Primedia brought the matter to us by way of consideration in terms of section 16(2) (b) of the Act. Primedia asked us to approve the merger without conditions or alternatively, to approve the merger subject to a revised set of conditions that it proposed would remedy the competition harm, assuming we found the merger to be anticompetitive.

[4] At the commencement of our hearing the Commission altered its position, and decided to oppose the approval of the merger, contending that neither the conditions it had originally proposed nor the new ones proposed by the merging parties cured the competition harm identified. African Media Entertainment Limited (AME), a firm which owns interests in radio stations, applied for and was allowed to intervene in our proceedings. Like the Commission, its stance was that the merger be prohibited.

[5] We heard the matter during the course of 2006. Argument was heard on 18 January 2007 and we gave our decision in February 2007. We decided to approve the merger without conditions.

[6] Following our February decision, AME took our decision on review to the Competition Appeal Court. Although intervenors are not given the right to appeal decisions of the Tribunal in respect of mergers, the Court decided that they nevertheless, if they have been admitted as parties in the proceedings, enjoy the right to bring a review application. AME was successful in reviewing our decision on a point of law, but the Court declined to decide the matter on the merits, and referred it back to us for determination as to whether the merger should be approved or not and if so, on what basis.3

[7] Following the outcome of the review we invited all three parties (the Commission, the merging parties and AME) to make further written submissions to us in the light of the CAC decision. We heard oral argument based on these submissions on 31 January 2008.




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