Namane Logistics And Crossroads Distribution

The judgment

The court's own file

competitiontribunal SOUTH AFRICA COMPETITION TRIBUNAL OF SOUTH AFRICA Case No.: LM067Jul19 In the matter between: Namane Logistics (Pty) Ltd Primary Acquiring Firm And Crossroads Distribution (Pty) Ltd Primary Target Firm Panel : Y Carrim (Presiding Member) AW Wessels (Tribunal Panel Member) E Daniels (Tribunal Panel Member) Heard on : 21 August 2019 Decided on : 23 August 2019 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 marked as Annexure A: and 2. a Merger Clearance Certificate be issued in terms of Competition Tribunal rule 35(5)(a). Seti } 23 August 2019 Presiding Member: Date Ms Yasmin Carrim Concurring: Mr Andreas Wessels and Mr Enver Daniels Merger Clearance Certificate Date <: 23 August 2019 comp elitio tribunal To : Falcon& Hume Inc. Case Number: LM067Jul19 Namane Logistics (Pty) Ltd And Crossroads Distribution (Pty) Ltd You applied to the Competition Commission on 18 June 2018 for merger approval in accordance with Chapter 3 of the Competition Act. Your merger was referred to the Competition Tribunal in terms of section 14A of the Act, or was the subject of a Request for consideration by the Tribunal in terms of section 16(1) of the Act. After reviewing all relevant information, and the recommendation or decision of the Competition Commission, the Competition Tribunal approves the merger in terms of section 16(2) of the Act, for the reasons set out in the Reasons for Decision. This approval is subject to: [| no conditions. the conditions listed on the attached sheet. The Competition Tribunal has the authority in terms of section 16(3) of the Competition Act to revoke this approval if a) it was granted on the basis of incorrect information for which a party to the merger was responsible. b) the approval was obtained by deceit. C) a firm concerned has breached an obligation attached to this approval. The Registrar, Competition Tribunal This form is prescribed by the Minister of Trade and Industry in terms of section 27 (2) of the Competition Act 1998 (Act No. 89 of 1998). A IN THE COMPETITION TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA Case Number: LMO67JUL19 In Re the large merger between: NAMANE LOGISTICS (PTY) LTD (“NAMANE”) Acquiring Firm And CROSSROADS DISTRIBUTION (PTY) LTD (“CRD”) Target firm CONDITIONS 1. DEFINITIONS The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings — 11 “Acquiring Firm” means Namane Logistics (Pty) Ltd; 1.2 "Approval Date" means the date referred to in the Tribunal's merger Clearance Certificate (Form CT10); 1.3. "Commission" means the Competition Commission of South Africa; 1.4 “Competition Act" means the Competition Act No. 89 of 1998, as amended; 1.5 “Competition Authorities” mean the Commission and the Tribunal; 1.6 “Commission Rules" mean the Rules for the Conduct of Proceedings in the Commission; 1.7 1.8 1.9 1.10 1.12 “Conditions” mean these conditions; "Days" mean business days, being any day other than a Saturday, Sunday or official public holiday; "Implementation Date" means the date on which the Proposed Transaction is implemented by the Merging Parties; “LRA” means the Labour Relations Act 66 of 1995; "Merging Parties" mean the Acquiring Firm and the Target Firm; "Proposed Transaction" means the acquisition of a 43% shareholding in the Target Firm by the Acquiring Firm, as set out in greater detail in the joint competitiveness report and Schedule 4 to Form CC 4(2) of the Acquiring Firm, submitted to the Commission as part of the merger filing; "Target Firm" means Crossroads Distribution (Pty) Ltd; and "Tribunal" means the Competition Tribunal of South Africa. CONDITIONS 2.1 The Target Firm shall not retrench any employees as a result of the Proposed Transaction for a period of 3 (three) years from the Implementation Date. 2.2 For the sake of clarity, retrenchments do not include (i) voluntary retrenchment and/or voluntary separation agreements; (ii) voluntary early retirement packages; (iii) 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 unrelated to the Proposed Transaction; and (vi) terminations in the ordinary course of business, including but not limited to dismissals as a result of misconduct or poor performance. 2.3 The Target Firm shall circulate a copy of these Conditions to all employees of the Target Firm and their trade unions. 2.4 On or before the Approval date, the Merging Parties shall submit to the Competition Authorities a list of each employment position in the Target Firm which is potentially affected by the retrenchments contemplated in the Section 189A Notice provided to affected staff in the Target Firm on 10 July 2019 (‘the Section 189A Notice”). This list must specify the gender and geographic location of each employee holding each such potentially affected employment position as at the Approval Date. eyed 2.5 Within 10 (ten) business days of the consultations in terms of the Section 189A Notice being concluded and retrenchments being effected by the Target Firm in terms of that Section 189A Notice, the Merging Parties shall submit to the Competition Authorities an affidavit deposed to by the Managing Director of the Target Firm which confirms and provides: 2.5.1. the name, job description, gender and geographic location of each employee of the Target Firm who has been retrenched as a result of the operational requirements of the Target Firm, as set out in the Section 189A Notice; 2.5.2 that these retrenchments were based on the operational requirements of the Target Firm set out in the Section 189A Notice and are not related to the Proposed Transaction; 2.5.3. adescription of the operational requirements of the Target Firm that lead to the retrenchments; and 2.5.4 that all employees of the Target Firm and their trade unions have been notified of these Conditions, in accordance with clause 2.3. 3. MONITORING OF COMPLIANCE WITH THE CONDITIONS As proof of compliance with the condition set out in clause 2.1, the Target Firm shall submit an affidavit deposed to by the Managing Director of the Target Firm on each anniversary of the Implementation Date, during the 3 (three) year period that this condition remains in place. 4. VARIATION The Merging Parties and the Commission may at any time, on good cause shown, apply to the Tribunal for the Conditions to be lifted, revised or amended. 5. BREACH in the event that the Commission receives any complaint in relation to non-compliance with the Conditions, or otherwise determines that there has been a breach by the Merging Parties of the Conditions, the breach will be dealt with in terms of Rule 37 of the Tribunal Rules read together with Rule 39 of the Commission Rules. 6. GENERAL 7.1. All correspondence in relation to the Conditions shall be submitted to the following email address: mergerconditions@compcom.co.za.