African Media Entertainment Limited v Lewis NO and Others

Primedia Limited (fourth respondent), together with Capricorn Capital Partners (fifth respondent), entered into an agreement to acquire all the shares in New Africa Investments Limited (sixth respondent). The only relevant asset of the sixth respondent was a 24.9% shareholding in Kaya FM (Pty) Ltd, a Gauteng-based commercial radio station. Through the transaction and a management agreement, Primedia would acquire a 73% economic interest in the sixth respondent and manage its media assets, thereby indirectly influencing the Kaya FM stake. The Competition Commission initially found that the merger would likely increase Primedia’s market power in the Gauteng radio advertising market and facilitate coordinated conduct with other major players, but nevertheless approved the merger subject to conditions. On reconsideration before the Competition Tribunal, and after further investigation, the Commission opposed the merger outright. The Tribunal ultimately approved the merger unconditionally, finding that the transaction did not confer sole or joint control over Kaya FM. African Media Entertainment Limited, an intervening participant before the Tribunal, brought a review application to the Competition Appeal Court to set aside the Tribunal’s approval.

The review application succeeded. The Competition Tribunal’s decision approving the merger unconditionally was set aside, and the matter was referred back to the Tribunal for reconsideration in accordance with section 12A of the Competition Act.

This case is significant for clarifying that recognised interveners in merger proceedings have the right to seek judicial review of Tribunal decisions, even though their appeal rights are limited under section 17 of the Competition Act. Substantively, it affirms that merger control under South African law is not confined to formal notions of control but requires a full competition analysis under section 12A. The judgment reinforces the administrative-law character of Tribunal decisions and the applicability of PAJA and constitutional principles to competition law adjudication.