Caxton and CTP Publishers and Printers Limited v Naspers Limited and Others

Naspers proposed to take control of M-Net and Supersport, a large merger requiring Competition Tribunal approval. Caxton, a competitor of Naspers in the print media market (publishing books, magazines, regional newspapers), applied to intervene in the merger proceedings. Caxton alleged that the merger would enhance Naspers' market dominance and lead to anti-competitive conduct including cross-subsidisation, foreclosure, and bundling. The Tribunal granted Caxton leave to intervene under section 53(1)(c)(v) of the Competition Act 89 of 1998, but limited the scope of intervention to issues of foreclosure and bundling as articulated in specified paragraphs of Caxton's notice of motion. Caxton launched an urgent review challenging the Tribunal's limitation on the scope of its intervention, seeking full participation rights without circumscribed issues.

• Whether the Competition Tribunal has the power to limit the scope and ambit of intervention by a party granted leave to participate in merger proceedings under section 53(1)(c)(v) of the Competition Act
• Whether Rule 46 of the Competition Tribunal Rules, which requires an intervening party to set forth matters on which it will make representations, is ultra vires the Competition Act
• Whether the Tribunal exceeded its jurisdiction or improperly exercised its discretion by circumscribing the issues Caxton could raise in the merger proceedings

Review dismissed with costs, including costs consequent upon the employment of two counsel. The Competition Tribunal's order of 23 July 2007 limiting the scope of Caxton's intervention to foreclosure and bundling issues was upheld.

The Competition Tribunal has the power under section 53(1)(c)(v) read with section 52 of the Competition Act 89 of 1998 to limit the scope and ambit of an intervening party's participation in merger proceedings. The discretion to 'recognise' a participant includes the power to define the issues such participant may raise. This power is necessary to enable the Tribunal to control and regulate its own proceedings in accordance with its inquisitorial mandate under section 52(2)(b), and to ensure orderly, expeditious hearings with properly circumscribed discovery. Rule 46 of the Tribunal Rules, requiring intervening parties to specify matters on which they will make representations, is intra vires the Act. The Tribunal retains inherent power to permit additional issues to be raised during a hearing if they are found to be of substance and importance.

The Court observed that merger proceedings, although conducted without pleadings, still require the Tribunal to exercise control to ensure evidence is relevant to the issues raised regarding merger approval. The Court noted that if Caxton's argument were accepted and it had unrestricted participation rights, this would result in undesirable consequences including unlimited discovery of confidential documents and chaotic, cumbersome hearings contrary to the interests of justice and procedural efficiency. The Court also commented that as a matter of common sense, merging parties must be apprised of alleged anti-competitive implications so they can marshal witnesses, particularly experts, and produce documents appropriately.

This case establishes important principles regarding the Competition Tribunal's powers to manage merger proceedings under the Competition Act. It clarifies that while the Tribunal has discretion to recognise intervening parties, it also has the power to circumscribe the scope of their participation to ensure orderly, efficient proceedings. The judgment affirms the validity of Rule 46 of the Tribunal Rules and confirms the Tribunal's inquisitorial powers and inherent right to control its own proceedings. It balances the rights of intervening parties against the need for procedural efficiency and fairness to merging parties in competition merger reviews.