Phindiwe Abigail Kema and Africa Race Group (Pty) Ltd v Kenilworth Racing (Pty) Ltd and Others

The applicants sought leave to appeal to the Constitutional Court against a judgment of the Competition Appeal Court delivered on 13 September 2013. In that earlier judgment, the court held that the second applicant (Africa Race Group (Pty) Ltd) lacked locus standi to appeal a Competition Tribunal decision approving an intermediate merger involving the respondents. The applicants relied on section 61(1) of the Competition Act 89 of 1998, arguing that they were 'persons affected' by the Tribunal’s merger decision and thus entitled to appeal. The court was required to consider whether section 61(1) conferred standing on the applicants, despite the more specific provisions in sections 13A, 16, and 17 of the Act governing merger proceedings and appeals.

The application for leave to appeal to the Constitutional Court was dismissed with costs.

The case reinforces a restrictive and structured approach to locus standi in competition merger proceedings, confirming that only specifically identified categories of persons may participate in and appeal merger decisions. It affirms the authority of the Distillers decision and underscores the importance of expedition and certainty in merger control under South African competition law.