1) Is a merger control regulation in force?

Yes. The relevant Merger control legislation is contained in the Competition Act 89 of 1998, as amended (“the Act”) and the regulations promulgated in terms of the Act. Merger control is regulated under Chapter 3 of the Act.

2) Which authorities enforce the merger control regulation?

The Act is enforced by the Competition Commission (“the Commission”), the Competition Tribunal (“the Tribunal”), and the Competition Appeal Court (“the CAC”). In circumstances where a competition matter raises constitutional issues, such matters can be taken on appeal from the CAC to the Constitutional Court, the apex Court of the land.

3) Relevant regulations and guidelines with links:

The merger control provisions are contained in Chapter 3 of the Act. Links to the relevant legislation, guidelines and practioner updates are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

The Competition Authorities consider ancillary restraints as part of their review if they form part of the merger agreement, or are brought to the attention of the Commission during the merger investigation. The Commission may impose remedies to amend a restraint if it has concerns with the duration or scope of the restraint in the main merger agreement. For example, the Commission previously approved a merger subject to the merged entity reducing a restraint of trade from five years to three years. The Commission has imposed similar types of remedies in various mergers.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Banks

The Act grants the Minister of Finance the power to withdraw the Commission’s jurisdiction to assess a merger which involves the acquisition of a bank in terms of the Banks Act 94 of 1990. This occurs where the Minister of Finance considers it in the public interest to do so. When the Commission receives notification of a merger relating to an acquisition of a bank, the Commission must send formal correspondence to the Minister of Finance to determine whether he or she wishes to exercise this power.

Other sector-specific legislation

In addition to the Act, certain sector-specific legislation requires additional notifications in respect of mergers forming part of particular sectors, this includes but is not limited to mining, gambling, telecommunications, insurance, and private healthcare.

Foreign investment control

There is no separate foreign investment control legislation.

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

A merger filing is mandatory, provided the thresholds are met.

9) Is there a general definition of transactions subject to merger control?

Yes. A merger occurs when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm. The merger may be achieved in any manner, including through the purchase or lease of shares, an interest, or assets of the other firm in question; or an amalgamation or any combination hereof with the other firm in question.

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over the whole or part of the business of another firm.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

In terms of section 12(2), a person controls a firm if that person:

1. beneficially owns more than half of the issued share capital of the firm;
2. is entitled to vote a majority of the votes that may be cast at a general meeting of the firm, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that person;
3. is able to appoint or veto the appointment of a majority of the directors of the firm;
4. is a holding company, and the firm is a subsidiary of that company as contemplated in section 1(3)(a) of the Companies Act, 1973 (Act No. 61 of 1973);
5. in the case of a firm that is a trust, has the ability to control the majority of the votes of the trustees, to appoint the majority of the trustees, or to appoint or change the majority of the beneficiaries of the trust;
6. in the case of a close corporation, owns the majority of members’ interest or controls directly or has the right to control the majority of the members’ votes in the close corporation; or
7. has the ability to materially influence the policy of the firm in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of the control referred to in paragraphs 1 to 6.

12) Acquisition of a minority interest

Acquisition of a minority interest which does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest confers someone with control, including negative control, of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights regarding decisions that are essential for the strategic behaviour of the business.

13) Joint ventures/joint control – which transactions constitute mergers?

The Act does not specifically refer to joint ventures; however, joint ventures are not exempted by any provision of the Act. To the extent that a joint venture constitutes a “merger” as defined in the Act, the merger control provisions will apply. To the extent that a joint venture is not a “merger”, the “prohibited practices” provisions of the Act may nevertheless apply.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

Only intermediate and large mergers require mandatory notification in South Africa.

Intermediate mergers are those where the total annual revenue and/or total asset value of the target firm(s) meets or exceeds ZAR 100 million in the preceding financial year; and, in addition, the total annual revenue and/or consolidated total asset value, or any combination thereof, of both the target firm(s) and acquiring firm(s) meets or exceeds ZAR 600 million.

Large mergers are those where the total annual revenue and/or total asset value of the target firm(s) meets or exceeds ZAR 190 million in the preceding financial year; and, in addition, the total annual revenue and/or consolidated total asset value, or any combination thereof, of both the target firm(s) and acquiring firm(s) meets or exceeds ZAR 6.6 billion.

It must be noted that the Act defines an acquiring firm broadly, referring to the entire group of which the acquirer forms part of, while a target firm is defined narrowly, referring to the actual business or asset being acquired.

Small mergers (i.e. where the thresholds are not met) do not in the ordinary course require notification. However, small mergers may be 1) voluntarily notified; 2) notifiable at the request of the Commission (within six months of implementation); or 3) notifiable in limited circumstances in accordance with the Commission’s 2009 Guidelines on Small Merger Notification. The Guidelines state that the Commission will require notification of a small merger if, at the time of entering into the transaction, any of the firms involved are:

1. Subject to an investigation by the Commission for prohibited conduct (such as cartel conduct, resale price maintenance, or abuse of dominance); or
2. Respondents to pending proceedings referred by the Commission to the Tribunal. The Guidelines are merely a policy document; it does not have the force of law.

Furthermore, under the revised Guidelines, the Commission must be informed of all small mergers, in the digital space, where:

1. the acquiring firm’s annual turnover or asset value exceeds ZAR 6.6 billion in the preceding financial year; and
2. the consideration (or purchase price) for the acquisition or investment exceeds ZAR 190 million, or the consideration for the acquisition of a part of the target firm is less than ZAR 190 million but “effectively values” the target firm at ZAR 190 million or more.

b) Market share thresholds

N/A

c) Value of transaction thresholds

See the description of turnover thresholds above.

d) Assets requirements

See the description of turnover thresholds above.

e) Other

N/A

15) Special thresholds for particular businesses

All mergers, which meet the financial threshold requirements, require approval from the competition authorities before they can be implemented.

16) Rules on calculation and geographical allocation of turnover

The assets in and the turnover of a firm in, into, or from South Africa must be calculated in accordance with the International Financial Reporting Standards (“IFRS”) (or, in practice, any other applicable recognised accounting standard, e.g. GAAP). The asset value of a firm is based on the asset value of the firm’s assets as recorded on the firm’s annual audited financial statements of the immediately preceding financial year prior to the merger. In relation to revenue, the annual turnover of a firm considered will be the gross revenue of that firm from income in, into, or from South Africa, arising from the following:

1. sale of goods;
2. the rendering of services; and
3. the use by others of the firm’s assets yielding interest, royalties and dividends, and events as recorded on the firm′s income statement for the immediately preceding financial year before the merger.

The value of foreign sales or assets should be calculated using the average exchange rate of the relevant currency, i.e. ZAR, for a 12-month period up to the end of the previous financial year.

In the instance where audited financials exist, if more recent management accounts or draft financials exist that cover the full financial year, consideration should be given to those – provided that they have been prepared in accordance with IFRS or any other applicable recognised accounting standard.

Is the seller/seller's group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

See topic 16.

18) Series of transactions that must be treated as one transaction

Transactions that are interdependent because they are linked by conditions must be treated as one, if control in each transaction is acquired ultimately by the same undertaking(s).

In addition, the Commissions Guidelines of Indivisible Transactions dated September 2024, set out the factors which the Commission will take into account in determining the indivisibility of multiple transactions. For purposes of determining whether multiple transactions should be treated as a single indivisible transaction, in the sense that one transaction cannot be implemented without the implementation of the other transaction(s), the Commission will assess a number of interrelated factors. These factors include:

1. the manner in which the transaction is structured;
2. the relationship between the transactions; 
3. the interdependence of the transactions (whether one transaction could be carried out without the other transactions);
4. the rationale underlying the multiple transactions;
5. whether the transactions will be implemented simultaneously under the same agreement; 
6. whether there are multiple acquiring firms, under common shareholding, acquiring the same target firm(s);
7. whether there are multiple target firms with common shareholders/sellers and common acquiring firms;
8. whether there are multiple acquiring firms in terms of a single agreement pertaining to the same target firm (e.g. property transactions and consortium arrangements);
9. whether the transactions involve a similar competitive and public interest assessment, and whether similar conditions are likely to be applicable to the transactions; and
10. whether the single notification is aimed at circumventing the applicable filing fees.

The assessment of indivisibility is a holistic assessment and no one factor is determinative of indivisibility. The assessment of indivisibility is also not based on convenience to the merging parties.

If a transaction meets the requirements of indivisibility, the Commission will assess the transaction under a single merger notification. However, if a transaction does not meet the requirements of indivisibility, the Commission may require merging parties to file the transactions separately.

19) Temporary change of control

All transactions are automatically notifiable if it falls within the definition of a merger and if the monetary thresholds for compulsory notification are met.

20) Special industries, owners or types of transactions

The Commission issued a practitioners update regarding the approach to the application of merger provision risk mitigation in respect of financial transactions.

Whilst risk mitigation techniques (e.g. a bank or state-owned finance institution acquires control over a business as a result of default by a debtor) are subject to the merger control provisions, the Commission recognises that the principal objective of risk mitigation techniques are to secure the interests of the financier in the finance transaction, and to enable the financier to recoup the capital advanced to the debtor (in most instances the intention is not to retain the investment but to on-sell).

Accordingly, in terms of certain risk mitigation transactions, sale and leaseback transactions, and government concessions in infrastructure development, where a bank or state-owned finance institution acquires an asset or controlling interest in a firm, in the ordinary course of its business in providing finance based on security or collateral, the Commission has adopted the approach that it would not require notification of the transaction at the point at which the asset is acquired. Similarly, if on default by the firm, the bank or state-owned finance institution takes control of the asset or controlling interest in that firm, with the intention to safeguard its investment or on-sell it to another firm to recover its finance, a notification would not be required.

However, if the bank or state-owned finance institution fails to dispose of the asset or controlling interest within 24 months, notification would be required.

21) Transactions involving only foreign businesses (foreign-to-foreign)

The Act applies to all economic acivity within or having an effect within the South Africa. A foreign-to-foreign transaction is accordingly notifiable if it is a merger, as defined in the Act, and meets the relevant financial thresholds. It is not necessary for the acquiring firm or target firm to have a physical presence in South Africa for notification to be triggered. For example, sales made by the acquiring firm or target firm into South Africa will be sufficient to trigger a merger notification, if the financial thresholds are met.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities.

23) Other exemptions from notification duty even if thresholds ARE met?

Acquisition of a minority interest which does not result in the gaining of control over the business is not subject to merger control.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Small mergers (i.e. where the thresholds are not met) do not in the ordinary course require notification.

However, small mergers may be voluntarily notified; or they are notifiable at the request of the Commission (within six months of implementation); or notifiable in limited circumstances in accordance with the Commission’s 2009 Guidelines on Small Merger Notification. The Guidelines state that the Commission will require notification of a small merger if, at the time of entering into the transaction, any of the firms involved are:

1. Subject to an investigation by the Commission for prohibited conduct (such as cartel conduct, resale price maintenance, or abuse of dominance); or
2. Respondents to pending proceedings referred by the Commission to the Tribunal.

The Guidelines are merely a policy document; it does not have the force of law.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

See topic 24.

26) Referral within the jurisdiction

All sectors are subject to the provisions of the Act (except for certain banking mergers). Therefore, all proposed mergers within this jurisdiction are subject to the merger control legislation as set out above, and if notifiable, are subject to acceptance by the relevant body.

No referral takes place within the jurisdiction, however legislation requires additional industry specific notifications to other regulators for mergers forming part of particular sectors, including the insurance, banking, gambling, mining and telecommunications industries. These notifications ensures that the proposed merger complies with sector specific regulations. If applicable, these authorities may make submissions to the Commission in this regard.

27) Referral from another jurisdiction

There is no legal obligation on the Commission to co-operate with other regulators or to recognise any determinations made by other competition authorities. However, the Commission does generally engage with other regulators in international transactions through the memorandums of understanding it has concluded with various regulators.

It is common in global mergers for the Commission to liaise with other competition regulators and for information to be exchanged. In some cases, waivers will be requested; however, the exchange usually takes place in terms of the memorandums of understanding which permit the exchange of non-confidential information.

28) Referral to another jurisdiction

See topic 27.

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

There are no deadlines for the notification of a merger, and notification can be made at any time prior to the implementation of the transaction. 

Parties are permitted to submit the merger notification without a signed agreement and may submit the merger on the basis of another written document setting out the essential terms of the transaction, such as a letter of intent, offer letter, term sheet, memorandum of understanding or draft agreement. Provided that the material terms of the transaction are settled and recorded on such document and not subject to material change.

31) Pre-notification consultations

Parties may engage in pre-notification discussions with the Commission although this is not common. In practice, pre-notification consultations tend to be held in relation to contentious mergers only. Meetings can also be arranged with the Commission shortly after filing, when a case team has been set up.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

The Act does not contain any specific provision dealing with public takeover bids; the normal procedure will apply. However, there are special rules for public offers addressed by the Takeover Regulations Panel.

33) Forms available for completing a notification

A merger notification must be made in the prescribed manner and form. This includes the filing of both a CC4(1) and a CC4(2) Form as set out below.

Form CC4(1) must declare whether the merger is small, intermediate or large. This Form is accompanied by Schedules 1 and 2 and include the following information:

1. details of the acquiring and target firms,
2. trade union or employee representatives, and
3. a summary of the effect of the proposed transaction on employment.

Form CC4(2) includes a Statement of Merger Information for each of the primary acquiring and target firms. This Form is accompanied by Schedules 3 to 6 and includes the following information:

1. identification of the party filing the notice (including controlling and subsidiary entities),
2. details of the proposed transaction,
3. details of the acquiring entity and target entity’s activities, including competitor and customer information; and
4. details of any business relationship between the acquiring and target entities.

34) Languages that may be applied in notifications and communication

English.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification whether simplified or full:

1. The most recent annual reports or financial statements, as well as the annual reports or financial statements of any firms controlled by the parties in South Africa;
2. The most recent version of all documents constituting the merger agreement between the parties;
3. Copies of all strategic documents (including minutes of meetings, reports, presentations and summaries) prepared for the Boards of Directors of the acquiring and target firm(s) regarding the transaction;
4. Copies of the most recent business plans of the parties;
5. The most recent report provided by the parties to the Securities Regulation Panel in South Africa during the past year (if any).

36) Filing fees

The filing fee must be paid prior to the filing of the merger, and proof of payment must be submitted as part of the merger filing notification filed with the Commission. The Act does not stipulate which party is responsible for payment of the fees, and this is generally a matter of commercial negotiation between the parties.

37) Is implementation of the merger before approval prohibited?

Yes. Parties cannot lawfully implement a notifiable merger without the approval of the competition authorities in South Africa.

38) May the parties get permission to implement before approval?

It is possible to put in place hold-separate and/or ring-fencing arrangements to allow merging parties to finalise a transaction outside South Africa, if this can be done without implementing the merger in South Africa (such that the status quo in South Africa is maintained pending approval by the South African competition authorities).

While the competition authorities have not provided an official statement in support of this, hold-separate and ring-fencing arrangements have been put in place previously. It is generally advisable to inform the Commission of this and laisie with them in this regard.

39) Due diligence and other preparatory steps

Due diligence must be conducted in a manner which prevents sensitive market information from being used for purposes other than assessing the viability of the merger. An explicit exemption is not required for standard due diligence and other preparation measures.

During the due diligence process, parties must only share information that is absolutely necessary for purposes of evaluating and assessing the proposed transaction.

Parties should comply with specified legal requirements when sensitive information is exchanged. There are a number of matters to consider in this regard:

1. The establishment of a “clean team” and the designated individuals who will form part of the clean team;
2. The terms of non-disclosure agreements, confidentiality undertakings and the clean team agreement; and
3. How information is to be shared (and with whom), stored and accessed by the clean team.

40) Veto rights before closing and "Ordinary course of business" clauses

The Act requires parties to obtain approval before implementing the transaction. This means that parties cannot integrate their operations or exercise control over the target company’s business until the merger has been cleared.

41) Implementation outside the jurisdiction before approval – "Carve out"

See topic 38.

42) Consequences of implementing without approval/permission

Pre-implementation is a contravention of the Act. 

The Commission has published guidelines for the determination of administrative penalties for failure to notify a merger and prior implementation of a merger. These guidelines set out the Commission’s approach to prosecuting parties for non-notification or the pre-approval implementation of mergers. The Commission uses a filing fee-based methodology or penalties for failure to notify mergers, unlike the turnover-based methodology for determining administrative penalties in cartel cases.

43) Phases and deadlines

Intermediate mergers

The Commission is the decision-making body in intermediate mergers. The Commission has an initial period of 20 business days (commencing the day after a complete merger notification is filed) to review an intermediate merger. This may be extended by a once-off period of 40 business days. In terms of the Act, the Commission has a maximum of 60 business daysto review an intermediate merger and to approve, approve with conditions, or prohibit the merger. The review period of a small merger, if applicable, is the same as an intermediate merger.

Large mergers

In large mergers, the Commission has an initial period of 40 business days (commencing the day after a complete merger notification is filed) within which to assess a large merger and to make a written recommendation, with reasons, to the Tribunal on whether or not the merger should be approved, approved with conditions, or prohibited. The Commission may apply to the Tribunal for an extension of no more than 15 business days at a time. In terms of the Act, the Commission does not have a maximum period within which to review and make a recommendation regarding a large merger.

Hearing, decision and publication by the Tribunal

Upon receipt of the Commission’s recommendation, the Tribunal will set the matter down for a hearing within 10 business days. Upon completion of the hearing, the Tribunal must either approve, approve with conditions, or prohibit the merger within 10 business days, and publish its reasons for this decision within a further 20 business days.

44) Tests or criteria applied when a merger is assessed

The test applied to a merger is whether it is likely to substantially prevent or lessen competition and, if so, whether any technological, efficiency or other pro-competitive gains may result from the merger that may offset the lessening of competition. Relevant factors to be considered are:

1. The actual and potential level of import competition in the market;
2. The ease of entry into the market, including tariff and regulatory barriers;
3. The level and trends of concentration, and history of collusion, in the market;
4. The degree of countervailing power in the market;
5. The dynamic characteristics of the market, including growth, innovation and product differentiation;
6. The nature and extent of vertical integration in the market;
7. Whether the business or part of the business of a party to the merger or proposed merger has failed or is likely to fail;
8. Whether the merger will result in the removal of an effective competitor; and
9. The extent of ownership by a party to the merger in another firm or other firms in related markets.

If it is found that the merger is likely to substantially prevent or lessen competition, then it must be determined whether or not the merger is likely to result in any technological, efficiency or other pro-competitive gains which will be greater than, and offset, the effects of any prevention or lessening of competition, that may result or is likely to result from the merger, and would not likely be obtained if the merger is prevented.

A further step in the consideration of mergers is the assessment of whether the merger may be justified (despite any anti-competitive effects) on substantial public interest grounds by assessing the effect that the merger will have on the following factors:

1. A particular industrial sector or region;
2. Employment;
3. The ability of small and medium businesses, or firms controlled or owned by historically disadvantaged persons, to effectively enter into, participate in, or expand within the market;
4. The ability of national industries to compete in international markets; and
5. The promotion of a greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons and workers of firms in the relevant market.

The impact on employment is a very important consideration in merger assessment. Employees are given preferred rights as participants in the merger notification and investigation, as well as rights to have decisions of the authorities reconsidered. For this reason, it is important to be as clear as possible when alleging the effects on employment and to ensure that complete information is submitted to the authorities.

45) May any non-competition issues be considered?

See topic 44.

46) Special tests or criteria applicable for joint ventures

The Act does not specifically refer to joint ventures; however, joint ventures are not exempted by any provision of the Act. To the extent that a joint venture constitutes a “merger” as defined, the merger control provisions of the Act will apply. Generally, “greenfield” joint ventures will not be caught by the Act, but a combination of existing operations may be. The Commission has published a non-binding practitioners’ guide to provide guidance regarding the determination of whether a joint venture is bound by the provisions of the Act.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions, or prohibited.

Parties can negotiate remedies with the competition authorities. These may be behavioural or structural in nature. During merger investigations, the Commission could formally communicate with the parties on the competition or public interest concerns identified by the investigation, and provide the parties with an opportunity to make submissions and offer remedies to address the concerns identified by the Commission. The parties and the Commission must reach an agreement on remedies prior to the Commission making decision in the case of a small or intermediate merger. In the case of a large merger, remedies are typically negotiated with the Commission prior to the recommendation, but may also be negotiated before the Tribunal makes a decision regarding the matter, e.g. during the hearing or the period leading up to it.

The competition authorities regularly impose remedies to address public interest issues identified by the investigation. These include moratoriums on job losses and, more recently, transactions to promote ownership by historically disadvantaged persons, the establishment of employee share ownership schemes, investment commitments, and social upliftment conditions.

48) How and when will details about the merger be published?

Prior to submitting the merger notification to the Commission, the parties must provide a copy of the non-confidential version of the merger filing to any registered trade union representing a substantial number of employees, or an employee representative of the acquiring and target firms.

In addition, and as part of its investigation, the Commission will engage with third parties in order to obtain their views on the proposed transaction. The fact that the transaction is proposed will be disclosed, but third parties are not provided with a copy of the filing. If a request to inspect the filing is made, the merging parties are usually informed and a non-confidential version will be made available to third parties.

The notification of the transaction is also published on the Commission’s website and the decision is published in the Government Gazette, and a summay of the decision in the Commission’s media releases and other publications, such as its Annual Report.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file, which includes correspondence with third parties, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the Commission may redact third parties’ confidential information, which often includes the identity of such third parties.

Third parties:

Third parties do not have access to the file, but the Commission may decide to provide third parties with a non-confidential version of the notification and other documents.

50) Who can appeal and what may be appealed?

The Commission’s decisions may be appealed to the Tribunal. The Tribunal’s decisions, whether at first instance or in appeals from decisions of the Commission, may be taken on review or appeal to the CAC.

The Act makes it clear that the parties to a merger, intervening government bodies, trade unions, and third parties who have established that they have a material interest in the merger, have a right to appeal a decision of the Tribunal.

The Minister may participate, in the prescribed manner, in merger proceedings before the Commission, the Tribunal or the CAC, in order to make representations on any of the public interest grounds listed in the Act. A trade union or employee representative may appeal a decision of the Tribunal to the CAC, provided that the trade union or employee representative was a participant in the Tribunal proceedings. Further, subject to the provisions of the Act and the Rules of the CAC, a person affected by a decision of the Tribunal may appeal against, or apply to the CAC to review the Tribunal’s decision. This allows competitors, customers and other third parties to appeal decisions of the Tribunal.

The parties who may participate in merger proceedings are:

1. any party to the merger;
2. the Commission;
3. any person who was entitled to receive a notice in terms of section 13A and who indicated to the Commission an intention to participate, in the prescribed manner;
4. the Minister, if the Minister has indicated an intention to participate; and
5. any other person whom the Tribunal has recognised as a participant.

The CAC has found that not all the participants may raise an appeal against a decision of the Tribunal. Those who may appeal are specifically referred to in section 17(1) of the Act. The CAC has held that the omission of the other participants is clearly indicative of the legislature’s intention. The Act provides that the Commission and the Minister now have an automatic right to appeal the decisions of the Tribunal. However, the Minister must have participated in the Commission or Tribunal’s proceedings or, can do so on application.

In the case of a small or intermediate merger, an application for reconsideration to the Tribunal, must be filed within 10 business days after the Commission issues its decision. In the case of a large merger, an appeal to the CAC must be filed within 20 business days after notice of a decision of the Tribunal has been made.