A C Whitcher (Pty) Limited v The Competition Commission of South Africa and Others

The second to fourth respondents notified the Competition Commission of an intermediate merger in which MTO Forestry (Pty) Ltd would acquire the assets and business of Boskor Saagmeule (Pty) Ltd and Boskor Ripplant (Pty) Ltd. The Commission approved the merger unconditionally on 13 March 2007. A C Whitcher (Pty) Ltd, a competing sawmill and customer dependent on log supply from the merged entity, became aware of the decision shortly thereafter. In July 2007, approximately three and a half months later, the appellant launched a review application before the Competition Tribunal seeking to set aside the Commission’s approval. The Tribunal dismissed the review, finding both that there had been an unreasonable delay and that the Commission had not misdirected itself on the merits. The appellant appealed to the Competition Appeal Court.

The appeal was upheld. The Tribunal’s decision was set aside, and the Competition Commission’s approval of the merger was found to be vitiated by material irregularities and unreasonable reasoning. (The precise remedial order is not fully set out in the provided extract.)

This case is significant for clarifying the standard of review applicable to Competition Commission merger decisions under PAJA. It emphasises that the Competition Tribunal must conduct a rigorous scrutiny of the Commission’s reasoning and may not adopt excessive deference, particularly given its specialist expertise. The judgment also underscores the importance of properly reasoned findings on foreclosure effects and market definition in merger control, and affirms that compliance with the 180-day PAJA period does not automatically cure unreasonable delay, although public interest considerations are relevant.