Royal Bafokeng And Maseve Investments 11

The judgment

The court's own file

1 ANNEXURE A: Royal Bafokeng Platinum Limited And Maseve Investments 11 (Pty) Ltd CASE NUMBER: 2017Oct0027 CONDITIONS 1. DEFINITIONS The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings – 1.1 “Acquiring Firm” means Royal Bafokeng Platinum Limited; 1.2 “Affected Employees” mean the 63 permanent employees and the 1 559 contract workers of Maseve who were retrenched prior to the proposed transaction; and the 58 contract workers of Maseve who are currently working at the Mine and whose contracts have been cancelled as a result of the Mine being under care and maintenance; 1.3 “Approval Date" means the date referred to in the Tribunal’s merger clearance certificate; 1.4 “Commission" means the Competition Commission of South Africa; 1.5 “Competition Act" means the Competition Act 89 of 1998, as amended; 1.6 “Concentrator Plant” means the Maseve concentrator plant; 1.7 “Conditions" mean these conditions; 1.8 “Days” mean any calendar day which is not a Saturday, Sunday or an official holiday in 2 South Africa; 1.9 “Implementation Date” means the date on which the Merger is implemented; 1.10 “Plant Transaction” means the acquisition as a going concern of the Concentrator Plant and the surface rights in respect of the immovable property owned by Maseve which may be required by RBPlat for purposes of accessing and operating the Concentrator Plant. 1.11 "Proposed Merger" means the acquisition of the Target Firm by the Acquiring Firm; 1.12 “LRA” means the Labour Relations Act 66 of 1995, as amended; 1.13 “Merging Parties” means the Acquiring Firms and the Target Firms; 1.14 “Mine” means the Maseve mine owned by the Target Firm, which is currently under care and maintenance; 1.15 “Rules” mean the Rules for the Conduct of Proceedings in the Competition Commission and the Rules for the Conduct of Proceedings in the Competition Tribunal; 1.16 “Target Firm” means Maseve Investments 11 (Pty) Ltd; and 1.17 “Tribunal” means the Competition Tribunal of South Africa; 1.18 “20 individuals” mean the 20 permanent employees, whose names are listed in Appendix I to these conditions, currently working at the Mine and who will be offered employment by the Acquiring Firm as part of the implementation of the proposed transaction. 2. CONDITIONS TO THE APPROVAL OF THE MERGER 2.1 The Acquiring Firm shall employ 115 employees at the Concentrator Plant by 30 July 2018. First preference will be given to the 115 employees that were previously employed at the concentrator plant. To the extent that these employees are no longer available, 3 RBPlat will endeavour to source employees from the local community in Rustenburg, in line with its current recruitment policy. 2.2 The Acquiring Firm, upon the implementation of the Proposed Merger, shall use reasonable endeavours to inform the Affected Employees, of any relevant job opportunities which arise at the Mine. To the extent that any of the Affected Employees apply for these jobs, and to the extent that such employees are suitably qualified for the relevant job, the Acquiring Firm will give preference to the Affected Employees over other equally qualified applicants who are not part of the Affected Employees. 2.3 The Acquiring Firm will forward a communique via SMS, email and/or community notice boards, directly or indirectly through third party service providers to all the Affected Employees, providing such Affected Employees with the information and details of the position as well as contact details as to whom to contact within the Acquiring Firms human resource department to enable them to apply should they wish to do so. Under all circumstances the onus will rest on the Affected Employees to apply for a vacant position. 2.4 Should the Affected Employee meet the relevant criteria and job requirements in terms of qualification, experience and skills required, the application will be facilitated through the Acquiring Firms human resource department. 2.5 The Acquiring Firm shall take over the 20 permanent employees currently employed at the Mine, whose names are listed in Appendix I to these conditions, in accordance with Section 197 of the LRA at no less favourable terms than they currently enjoy, within 30 (thirty) Days from the implementation of the Plant Transaction. MONITORING OF COMPLIANCE WITH THE CONDITIONS 2.6 The Merging Parties shall circulate a copy of the Conditions to all their employees and their relevant trade unions or employee representatives within 5 (five) Days of the Approval Date. 2.7 As proof of compliance thereof, a Chief Executive Officer of the Merging Parties shall 4 within 10 (ten) Days of circulating the Conditions, submit an affidavit attesting to the circulation of the Conditions and provide a copy of the notice that was sent to the employees. 2.8 The Acquiring Firm shall inform the Commission of the Implementation Date within 5 (five) Days of it becoming effective. 2.9 As proof of compliance with clause 2.5 above, the Chief Executive Officer of the Acquiring Firm shall within 10 (ten) Days of employment being offered to the employees in clause 2.5 above, submit proof of, and an affidavit attesting to, the employees being offered employment together with any other written supporting documentation to this effect. 2.10 The Acquiring Firm shall provide the Commission with a detailed report setting out its efforts and compliance with clause 2.1 to 2.4 within 6 (six) months from the Approval Date. The report shall be accompanied by the following: 2.10.1 written and documentary proof of the employment of the 115 employees as stipulated in clause 2.1 of the Conditions; including efforts made to communicate the right of first preference to those previously employed; and proof in the form of an affidavit, duly deposed of by the Chief Executive Officer of the Acquiring Firm, attesting to the accuracy of the contents of the report. 2.11 The Acquiring Firm shall provide the Commission with a detailed report setting out its efforts and compliance with clause 2.2 to 2.4 of the Conditions on each anniversary of the Implementation Date for a period of 2 (two) years. The report shall be accompanied by an affidavit, duly deposed of by the Chief Executive Officer of the Acquiring Firm, attesting to the accuracy of the contents of the report. 2.12 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 Merging Parties of these Conditions, the breach shall be dealt with in terms of Rule 39 of the Competition Commission Rules. 5 2.13 Any individual who believes that the Merging Parties have not complied with or have acted in breach of these Conditions may approach the Commission. 2.14 The Merging Parties shall be entitled, upon good cause shown, to apply to the Tribunal for a waiver, relaxation, modification and/or substitution of one or more of the Conditions. 2.15 All correspondence in relation to this Condition should be forwarded to: mergerconditions@compcom.co.za.