Northam Platinum Holdings Limited v Impala Platinum Holdings Limited and Others

Impala Platinum Holdings Limited (Implats) intended to acquire control over Royal Bafokeng Platinum Limited (RBPlat) by increasing its shareholding from 37.83% to beyond 50%. Northam Platinum Holdings Limited (Northam) held 34.5% of RBPlat's issued share capital and was a rival bidder. The Competition Commission recommended approval of the merger. Northam applied to intervene as a participant in the merger proceedings before the Competition Tribunal under section 53(c) of the Competition Act 89 of 1998. The Tribunal granted Northam limited participation rights on two theories of harm: (i) vertical effects of the merger on competition in the local upstream market for production and sale of primary concentrate, and (ii) effects prejudicial to junior miners in South Africa. However, the Tribunal denied Northam access to the Commission's record, discovery rights, the right to subpoena witnesses or documents, and the right to call or cross-examine witnesses. The Tribunal limited Northam to written submissions within 15 business days and oral submissions of maximum one hour. Northam appealed and sought review of this restrictive order, arguing it could not meaningfully assist the Tribunal without these procedural rights.

• What is the nature and scope of participation rights granted under section 53(c) of the Competition Act?
• What procedural rights flow from being admitted as a participant in merger proceedings?
• What is the proper balance between expedition of merger hearings and the Tribunal's inquisitorial mandate under section 52 of the Act?
• On what basis can a Tribunal restrict the participation rights of an admitted participant?
• Does an admitted participant have rights to access the Commission's record, discovery, and to call or cross-examine witnesses?

The appeal was upheld in part. The Tribunal's order of 22 June 2022 was set aside and replaced with an order that: (1) Northam may participate on the two identified theories of harm; (2) Northam's legal representatives and economic advisors may access confidential portions of the Commission's report and record relating to those theories, subject to confidentiality undertakings; (3) Northam may make written submissions within 10 business days; (4) Northam may make oral submissions at the hearing subject to reasonable (not one-hour maximum) time limitations; (5) Northam may apply to call witnesses or produce documents, with the Tribunal to determine such applications. First and second respondents were ordered to pay Northam's costs, including costs of two counsel.

Once a party is granted participation rights under section 53(c) of the Competition Act on the basis of specific theories of harm, the Competition Tribunal must ensure that the participant is able to exercise those rights in a meaningful fashion. A participant is distinct from an amicus curiae and has party status with attendant procedural rights. Any restrictions on participation rights must be rationally justified and based on a proper balancing of the need for expedition against the Tribunal's inquisitorial mandate under section 52. The Tribunal must conduct merger hearings with an "open and inquiring mind" and cannot impose restrictions that would render participation illusory or prevent the participant from assisting the Tribunal on the very theories of harm for which participation was granted. An admitted participant is entitled to access relevant portions of the Commission's record (subject to confidentiality), reasonable time to make oral submissions, and the right to apply for production of specific documents or calling of witnesses where properly justified, with the Tribunal retaining discretion to determine such applications.

The Court noted that merger control proceedings are prospective in nature, involving comparison of the predicted post-merger market structure against the counterfactual (existing market structure). This makes the inquisitorial model particularly well-suited to merger hearings. The Court cited with approval the test in Public Protector v Mail and Guardian Ltd regarding investigations being conducted "with an open and inquiring mind," applying this to the Tribunal's merger assessment function. The Court observed that the Commission's investigation appeared to have been incomplete in certain respects, particularly regarding purchase-of-concentrate (POC) and offtake agreements with junior miners, but did not make definitive findings on this as it was not necessary for the disposition of the case. The Court expressed reluctance to impose rigid procedural requirements on the Tribunal, preferring to leave procedural matters to the Tribunal's discretion while establishing the principle that participation rights must be meaningful.

This case clarifies the nature and scope of participation rights under section 53(c) of the Competition Act. It establishes that participants have party status distinct from amici curiae, with concomitant procedural rights necessary for meaningful participation. The judgment emphasizes the Tribunal's inquisitorial mandate in merger proceedings and requires rational justification for any restrictions on participation rights. It provides guidance on balancing expedition against comprehensive inquiry in merger control. The case is significant for establishing that once a participant is admitted on specific theories of harm, the Tribunal must enable meaningful participation on those issues, including access to relevant portions of the Commission's record and the ability to apply for additional evidence where justified. It limits the Tribunal's discretion to impose arbitrary restrictions that would render participation "illusory."