Pepkor Holdings Limited and Another v Lewis Stores Proprietary Limited

The first and second appellants (Pepkor Holdings Limited and Shoprite Holdings Limited), respectively the first and third largest household furniture retailers in South Africa, proposed a merger. The respondent, Lewis Stores (Pty) Ltd, the second largest national household furniture retailer, applied to the Competition Tribunal to intervene in the merger proceedings under s 53(c)(v) of the Competition Act 89 of 1998 and Tribunal Rule 46. The Competition Commission had recommended conditional approval of the merger. Lewis sought intervention claiming it possessed unique insights and material knowledge of the furniture retail industry that would assist the Tribunal in assessing the merger. The Tribunal granted Lewis extensive intervention rights on 23 July 2025, including full discovery, rights to cross-examine, adduce evidence, and participate in all aspects of the s 12A inquiry regarding market definition, competition effects, and remedies. The merging parties appealed this decision.

• What is the correct test and applicable principles for granting intervention in merger proceedings under s 53(c)(v) of the Competition Act read with Tribunal Rule 46?
• What evidential basis must a prospective intervenor demonstrate to justify admission beyond merely asserting a material interest?
• What is the appropriate scope of procedural rights to be granted to an intervenor in merger proceedings?
• Whether the Tribunal exercised its discretion judicially in granting the intervention application?
• Whether the Tribunal's order granting intervention is appealable as a final order under s 37(1)(b) of the Competition Act?

The appeal was upheld. The Competition Tribunal's decision of 23 July 2025 (case number LM106Oct24/INT038Jun25) was set aside and replaced with an order dismissing the intervention application. The respondent (Lewis Stores) was ordered to pay the costs of the appeal, including the costs of two counsel on scale C.

An applicant for intervention in merger proceedings under s 53(c)(v) of the Competition Act must demonstrate on an evidential basis (not speculation) that it possesses unique knowledge or evidence that would not otherwise be available to the Tribunal and would assist in the s 12A inquiry. Merely asserting a material interest or identifying deficiencies in the Commission's investigation is insufficient. The Tribunal must judicially exercise its discretion by balancing the likelihood of assistance against the impact on expedition of proceedings. Where the likelihood of assistance is doubtful but the impact on expedition is significant (particularly where the intervenor is a competitor with potential vested interests), intervention should be declined or curtailed. An intervenor must justify the necessity of each procedural right sought; the Tribunal cannot simply grant all s 12A(2) rights without such justification. The test for intervention is not whether there are material disputes of fact between parties' versions, but whether the prospective intervenor can demonstrate unique ability to assist the Tribunal's truth-seeking function.

The Court observed that denying intervention does not preclude the Tribunal from utilizing its inquisitorial powers to summon the unsuccessful applicant to provide information or requiring the Commission to gather additional evidence. The Court noted that the order effectively 'privatized' the Commission's merger function by granting a competitor full parallel investigative and participatory rights, which was inappropriate. The Court emphasized that merger hearings are inquiries, not trials, and should be conducted expeditiously, with Stalingrad tactics having no place in merger proceedings. The Court also noted that paragraph 7 of the Tribunal's order (allowing for limitations to be imposed) could not be read as allowing the Tribunal to revisit its determination on intervention, as that issue had been finally decided. The Court commented that competitor intervenors may have vested commercial interests in subverting mergers between competitors, which is a relevant factor in exercising discretion on intervention applications.

This judgment clarifies and reinforces the test for intervention in merger proceedings in South African competition law. It emphasizes that prospective intervenors must demonstrate an evidential basis (not mere speculation) showing they possess unique knowledge or evidence not otherwise available to the Tribunal. The Court reaffirmed the importance of expeditious resolution of merger proceedings and cautioned against allowing competitor intervenors with potential vested interests to delay proceedings without demonstrating genuine ability to assist. The judgment reinforces the principles from Community Healthcare Holdings and Northam that intervenors must justify each procedural right sought and that the Tribunal must exercise its discretion judicially by balancing expedition against the value of the contribution. The decision also clarifies that intervention orders can be final and appealable where they definitively determine intervention rights, particularly where the Tribunal has committed material misdirections.