African Media Entertainment Limited v David Lewis NO and Others

The fourth and fifth respondents (Primedia Limited and Capricorn Capital Partners) entered into an agreement to acquire all shares of the sixth respondent (New Africa Investments Limited - NAIL). NAIL's only relevant asset was a 24.9% equity stake in Kaya FM (Pty) Ltd, which operates Kaya FM radio station. Through the agreement, fourth respondent would acquire a 73% economic interest in sixth respondent and would manage the media assets, effectively controlling the 24.9% shareholding in Kaya FM. The merging parties notified the transaction as an intermediate merger. The Competition Commission investigated and initially found the merger would increase fourth respondent's market power in Gauteng and facilitate coordinated behaviour with competitors, particularly Kagiso Media Limited (which controlled Jacaranda radio). The Commission initially approved the merger subject to conditions. The merging parties requested the Competition Tribunal to reconsider, seeking unconditional approval. The Commission then changed its position, arguing the merger should be prohibited outright due to unilateral and coordinated anti-competitive effects. The Tribunal approved the merger unconditionally, finding that fourth respondent would not acquire sole or joint control over Kaya FM through the 24.9% shareholding. African Media Entertainment Limited (the applicant), as an intervener in the Tribunal proceedings, sought to review and set aside the Tribunal's decision.

• Whether an intervening party has locus standi to review a merger approval decision by the Competition Tribunal
• Whether the Tribunal erred in law by limiting its inquiry to whether the acquiring firm obtained sole or joint control over the target firm, without conducting the comprehensive assessment mandated by section 12A of the Competition Act
• Whether the Tribunal failed to assess the relevant market, strength of competition, and factors listed in section 12A(2) of the Competition Act
• Whether the Tribunal conflated the jurisdictional question of control under section 12 with the substantive competitive assessment under section 12A

1. The decision of the Competition Tribunal to unconditionally approve the merger under case number CT39/AM/May06 is reviewed and set aside. 2. The determination as to whether the proposed merger should be approved, and on what basis, is referred back to the Competition Tribunal for expeditious consideration and determination. 3. Fourth and fifth respondents are ordered jointly and severally to pay the applicant's costs of the application, including costs for two counsel.

The binding legal principle established is that the Competition Tribunal must conduct a comprehensive assessment under section 12A of the Competition Act when evaluating a merger, which inquiry is distinct from and extends beyond the jurisdictional question of whether control has been acquired under section 12. Once a merger is established, the Tribunal must assess: (1) the relevant market; (2) the strength of competition in that market; (3) the probability that firms in the market will behave competitively or cooperatively after the merger; and (4) all relevant factors listed in section 12A(2). The question of control, while relevant to the competitive assessment, is insufficient on its own. Even partial ownership acquisitions that do not result in sole or joint control require full competitive analysis considering market structure, concentration levels, and other statutory factors. A failure to conduct this mandated comprehensive inquiry constitutes a material error of law that renders the decision reviewable. Additionally, recognized participants in Competition Tribunal proceedings under section 53(1)(c) have standing to review merger decisions as persons 'affected by' the decision under section 61(1) of the Competition Act.

The Court made several non-binding observations: (1) It acknowledged that given the Tribunal's heavy caseload, 'forensic precision in the formulation of its decisions could not always be expected', showing understanding of practical constraints while maintaining legal standards. (2) The Court discussed the O'Brien and Salop analysis of partial ownership and the Modified Herfindahl-Hirschman Index (MHHI), noting that different forms of partial ownership can have different competitive effects depending on specific financial interests, corporate governance, and market structure. This demonstrates the economic sophistication required in merger analysis. (3) The Court observed that 'bad law in this kind of case prevents good economics from being employed', emphasizing the relationship between correct legal frameworks and effective economic analysis in competition cases. (4) Davis JP noted that the Tribunal's decision was 'not a model of jurisprudential clarity' but cautioned this was understandable given workload pressures. (5) The Court emphasized that respect and deference owed to the Tribunal meant the Competition Appeal Court should not substitute its own substantive decision but rather refer the matter back for proper consideration.

This case is significant in South African competition law for several reasons: (1) It clarifies that recognized participants in Competition Tribunal proceedings have standing to review merger decisions under section 61(1) read with section 53(1)(c) of the Competition Act, notwithstanding that section 17 limits who may appeal merger decisions. (2) It establishes the critical distinction between the jurisdictional inquiry under section 12 (whether a merger exists through acquisition of control) and the substantive competitive assessment under section 12A (whether the merger is likely to substantially prevent or lessen competition). (3) It clarifies that partial ownership acquisitions (less than full control) still require comprehensive competitive assessment under section 12A, including analysis of market structure and concentration. The decision references the O'Brien and Salop modified HHI analysis, showing that non-controlling acquisitions can have competitive effects. (4) It reinforces that while deference is owed to expert regulatory tribunals, there is no deference to decisions based on material errors of law. (5) It demonstrates the comprehensive, multi-factor assessment required under section 12A(2), including relevant market definition, concentration levels, barriers to entry, countervailing power, and removal of effective competitors.