Gold Fields Limited v Harmony Gold Mining Company Limited and Others

Gold Fields Limited sought to prevent Harmony Gold Mining Company Limited from implementing an announced takeover transaction. Harmony publicly announced a two-stage transaction consisting of an 'early settlement offer' to acquire up to 34.9% of Gold Fields’ shares, followed by a subsequent offer aimed at acquiring the remaining shares, subject to regulatory approvals. Gold Fields was simultaneously pursuing a separate transaction with IAMGold Corporation, which was opposed by a major shareholder, Norilsk. Gold Fields contended that the early settlement offer formed part of a single notifiable large merger and that its implementation before competition approval would contravene section 13A of the Competition Act 89 of 1998. The Competition Tribunal dismissed Gold Fields’ urgent application for an interdict, finding that the early settlement offer alone did not amount to acquisition of control. Gold Fields appealed to the Competition Appeal Court.

The appeal was upheld. Pending final approval of the merger by the competition authorities, Harmony was interdicted from voting or exercising any rights attached to Gold Fields shares acquired pursuant to the early settlement offer. Harmony was ordered to pay the costs of the appeal, including the costs of two counsel.

This case is significant for confirming that the Competition Tribunal has the power, by necessary implication, to grant interdictory relief to prevent unlawful implementation of mergers. It clarified that merger notification obligations arise once a transaction presents the essential features of a merger, and that staged transactions cannot be used to circumvent the prohibition on pre-implementation under section 13A. The judgment strengthened the enforcement of South Africa’s merger control regime.