Takatso Aviation And S.A Airways State Owned Company

The judgment

The court's own file

Date: 25 July 2023To: Bowmans AttorneysCase Number: LM054Jun22 Takatso Aviation (Pty) Ltd And South African Airways State Owned Company Ltd You applied to the Competition Commission on 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.xthe 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) this approval. The Registrar, Competition Tribunal Notice CT 10 About this Notice 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). Contacting the Tribunal The Competition Tribunal Private Bag X24 Sunnyside Pretoria 0132 Republic of South Africa tel: 27 12 394 3300 fax: 27 12 394 0169 e-mail: ctsa@comptrib.co.za Merger Clearance Certificate This notice is issued in terms of section 16 of the Competition Act. You may appeal against this decision to the Competition Appeal Court within 20 business days. 1 ANNEXURE AIN THE LARGE MERGER BETWEEN TAKATSO AVIATION PROPRIETARY LIMITED AND SOUTH AFRICAN AIRWAYS STATE OWNED COMPANY LIMITED CASE NUMBER: LM054Jun22 CONDITIONS 1. DEFINITIONS 1.1means Takatso; 1.2means the Competition Act 89 of 1998, as amended; 1.3 means the Target Firm employees (including pilots) that were retrenched during the business rescue proceedings at the Target Firm from December 2019 until 30 April 2021; 1.4 means the date the Tribunal issues a Clearance Certificate (Form CT10) in terms of the Act; 1.5 established in terms of section 19 of the Competition Act; 1.6 mean the Rules for the Conduct of Proceedings in the Commission; 1.7 those of the Target Firm. In relation to the Minorities, this specifically includes the passenger airline activities conducted under the Lift brand. 1.8 mean, collectively, the conditions referred to in this document; 2 1.9 public holiday in the Republic of South Africa; 1.10 means the Minorities each disposing of their entire respective shareholding in the Acquiring Firm as contemplated in these Conditions; 1.11 the Divestiture, on which the Merger is implemented by the Merger Parties; 1.12 of the Target Firm; 1.13means the Acquiring Firm and the Target Firm; 1.14 means Global Aviation Operations Proprietary Limited and Syranix Proprietary Limited, which each respectively hold 10% of the issued share capital in the Acquiring Firm; 1.15 means a period of 5 (five) years from the Implementation Date, and includes a period between the Approval Date and the Implementation Date; 1.16Purchaser 10% shareholding in the Acquiring Firm which must be an independent third party/ies unrelated to the Minorities and not a Competing Firm. 1.17 means the Republic of South Africa; 1.18 means Takatso Aviation Proprietary Limited; 1.19 means South African Airways State Owned Company Limited, as well as its subsidiaries, excluding Mango Airlines State Owned Company Limited; 1.20 means the Competition Tribunal of South Africa, established in terms of section 26 of the Competition Act; and 1.21mean Rules for the Conduct of Proceedings in the Tribunal. 3 2. 2.1 duration of the Moratorium. 2.2 specific, unless the Merger Parties / Merged Entity can demonstrate otherwise. 2.3 details of any proposed retrenchments for operational reasons during the Moratorium Period, at least 30 calendar days prior to such retrenchments being implemented. These details, to be provided to the Commission in writing, include details of the number of employees proposed to be retrenched; the qualifications of each employee proposed to be retrenched; a detailed explanation of the operational reasons for the proposed retrenchments and any other documents or information requested by the Commission. 2.4 retrenchments and/or voluntary separation arrangements; (ii) voluntary early retirement packages; (iii) unreasonable refusals to be redeployed in accordance with the provisions of the Labour Relations Act, 66 of 1995; (iv) resignations or retirements in the ordinary course of business; (v) retrenchments lawfully effected for operational requirements unrelated to the Merger; (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 contract worker. 2.5 vacancies at the Target Firm to Affected Employees for a period of 24 (twenty-four) months after the Approval Date. 2.6 shall give first preference to the Affected Employees to apply for any vacancies that may arise at the Target Firm, on terms mutually acceptable to the Affected Employees and the Merger Parties, provided that the Affected Employees have the requisite qualifications, skills, know-how and experience required for those specific vacancies. 4 2.7 minimum number of permanent employees of the Target Firm, at 1647. 3. 3.1 respective 10% shareholding in the Acquiring Firm to a Purchaser. 3.2 Divestiture. 3.3 Commission with details of the proposed Divestiture. These details shall include, but is not limited to, the transaction structure; details of the Purchaser; confirmation that the Purchaser is independent and unrelated to the Minorities; confirmation that the Purchaser is not a Competing Firm; and any other documents or information requested by the Commission. 3.4 Divestiture, provide its written confirmation of whether the proposed Divestiture complies with this Condition. 3.5 of the Act, the Divestiture cannot be implemented until same has been notified to the Commission in the prescribed form (whether or not the mandatory thresholds are met) and approved either unconditionally or subject to conditions. 4. 4.1 trade unions and employee representatives within 5 (five) Days of the Approval Date. 4.2 4.1, the Merger Parties will within 10 (ten) Days of circulating the Conditions, submit to the Commission an affidavit by a senior official of the Acquiring Firm attesting to the circulation of the Conditions and provide a copy of the notices that were circulated to the employees, relevant trade unions and employee representatives. 5 4.3 th (fifth) anniversary of the Implementation Date, the Merger Parties shall provide a suitable and appropriately detailed annual report to the Commission regarding the Merger Parties’ compliance with these Conditions. 4.4 within 5 (five) Days of the Implementation Date. 4.5 the Commission with an affidavit by a senior official of the Acquiring Firm attesting to the implementation of the Divestiture. This affidavit shall be provided to the Commission together with supporting documents such as the Acquiring Firm’s amended shareholders agreement and memorandum of incorporation. 5. 5.1 above Conditions, or otherwise determines that there has been an apparent breach by the Merger Parties of these Conditions, the breach will be dealt with in terms of Rule 39 of the Commission Rules read together with Rule 37 of the Tribunal Rules. 6. 6.1 good cause shown, for the relaxation, modification or substitution of any aspect of the conditions. 7. 7.1 email addresses: mergerconditions@compcom.co.za and ministry@thedtic.gov.za