Harmony Gold Mining Company Limited v Gold Fields Limited and Others

Harmony Gold Mining Company Limited made an early settlement offer and subsequent offers aimed at acquiring shares in Gold Fields Limited, ultimately intending to acquire all of Gold Fields’ shares. The Competition Tribunal dismissed Gold Fields’ contention that the early settlement offer did not amount to acquisition of control. Under severe time pressure, the Competition Appeal Court granted an interdict on 26 November 2004 restraining Harmony from exercising voting rights attached to shares acquired, pending merger approval. Harmony later applied for leave to appeal that order to the Supreme Court of Appeal. By the time the leave application was heard, the notified merger was pending before the Competition Tribunal, raising the question whether the dispute had become moot and whether the original order should be corrected to reflect the court’s true intention under section 66 of the Competition Act 89 of 1998.

The order of 26 November 2004 was corrected to limit the interdict to conduct constituting implementation of the notified merger contrary to section 13A(3). The application for leave to appeal was dismissed with costs, including the costs of two counsel, and Gold Fields Limited was ordered to pay the costs of the appeal.

The case clarifies the scope of the Competition Appeal Court’s power under section 66 of the Competition Act to correct or vary its own orders to reflect its true intention. It also affirms the application of the mootness doctrine in competition litigation and underscores that interim interdicts must be carefully framed so as not to exceed the prohibition on premature merger implementation under section 13A(3).