Pepkor Holdings Limited and Another v Lewis Stores Proprietary Limited

Pepkor Holdings Limited and Shoprite Holdings Limited, respectively the first and third largest household furniture retailers in South Africa, proposed a merger. The Competition Commission investigated the transaction and recommended approval. Lewis Stores Proprietary Limited, the second largest national household furniture retailer and a direct competitor, applied to the Competition Tribunal to intervene in the merger proceedings under s 53(c)(v) of the Competition Act 89 of 1998 read with Tribunal Rule 46. Lewis contended that it had a material interest in the merger and possessed unique industry knowledge that would assist the Tribunal, particularly in relation to market definition, competitive effects, local markets, and remedies. The merging parties opposed the intervention. On 23 July 2025, the Tribunal granted Lewis leave to intervene with extensive participatory rights. Pepkor and Shoprite appealed this decision to the Competition Appeal Court.

The appeal was upheld. The Competition Tribunal’s decision of 23 July 2025 was set aside and replaced with an order dismissing the intervention application. Lewis Stores Proprietary Limited was ordered to pay the costs of the appeal, including the costs of two counsel on scale C.

The judgment clarifies and restates the principles governing intervention in merger proceedings, emphasising that competitors must demonstrate an evidential basis showing a likelihood of assisting the Tribunal, beyond mere commercial interest or disagreement with the Commission. It reinforces limits on the scope of intervention, guards against the ‘privatisation’ of the Commission’s merger assessment function, and underscores the need for expeditious merger proceedings in line with the purposes of the Competition Act.