The Government Employees Pension Fund (represented by the Public Investment Corporation Ltd)

Transcription

1 COMPETITION TRIBUNAL OF SOUTH AFRICA Case No: 99/LM/Nov11 In the matter between: The Government Employees Pension Fund (represented by the Public Investment Corporation Ltd) Acquiring Firm And Afrisam Consortium (Pty) Ltd Target Firm Panel : Andreas Wessels(Presiding Member) Andiswa Ndoni (Tribunal Member) Medi Mokuena (Tribunal Member) Heard on : 13 December 2011 Order issued on : 20 December 2011 Reasons issued on : 04 July 2012 Reasons for Decision Conditional approval 1. On 20 December 2011 the Competition Tribunal ( Tribunal ) in terms of section 16(2)(b) of the Competition Act, 1998 (Act no. 89 of 1998, as amended) ( the Act ) approved the large merger between the Government Employees Pension Fund (represented by the Public Investment Corporation Ltd) ( the acquiring firm ) and Afrisam Consortium (Pty) Ltd ( the target firm ) subject to the following conditions: 1.1. for as long as the acquiring firm controls Afrisam Consortium (Pty) Ltd ( Afrisam ), it shall not have any board representation on Pretoria 1

2 Portland Cement Company Ltd ( PPC ) or any other cement producer in South Africa at either holding company level or operational company level; and 1.2. the acquiring firm must ensure the continued application of existing Chinese walls between the teams handling its investments in Afrisam and PPC as per the attached Annexure A to these reasons. 2. The reasons for conditionally approving the proposed transaction follow below. Parties to the transaction The acquiring firm 3. The primary acquiring firm is the Government Employees Pension Fund ( GEPF ), a juristic person established by section 2 of the Government Employees Pension Law, No. 21 of The GEPF is a defined benefit pension fund 1, which is predominantly involved in managing and administering pensions and other benefits for government employees in South Africa. The GEPF has no subsidiaries. 4. The GEPF is represented by the Public Investment Corporation Ltd ( PIC ). The PIC is wholly owned by the South African Government. The PIC invests funds on behalf of public sector entities such as the GEPF, and also manages a number of rentable properties. In addition to being the GEPF s authorised representative, the PIC also acts as GEPF s investment portfolio manager. The GEPF s assets are invested in classes including equities, fixed interest instruments, money market instruments and properties. 5. The GEPF holds interests and investments in several entities. Of particular relevance to the competition assessment of this transaction however is that the GEPF holds a % interest in PPC. Afrisam and PPC are in a 1 Established in May 1996 when various public sector funds were consolidated. 2

3 horizontal relationship since they both produce various cement products and aggregates. 6. The GEPF also holds minority interests in Massmart Holdings Ltd, Cashbuild Ltd, Aveng Ltd, Group 5, Murray & Roberts and Wilson Bayley. Each of the latter entities and Afrisam are in a vertical relationship in that these entities do or may purchase products from Afrisam. 7. The minority interest of the GEPF in PPC and the interests referred to in paragraph 6 above however are non-controlling, have no board representation entitlements and no rights other than those ordinarily applicable to a minority shareholder. The target firm 8. The primary target firm is Afrisam, a firm incorporated in the Republic of South Africa. Afrisam is a construction materials group operating in Southern Africa. The main products it supplies are cement, readymix and aggregates and slagment. 9. The current ordinary shareholders of Afrisam are: the PIC (24.5%); Bunker Hills Investments 128 (Pty) Ltd (36%); Staff and Management (Friedshelf 970 (Pty) Ltd) (13.5%); Charities and Broad Based Groups (Friedshelf 968 (Pty) Ltd) (10%); the Strategic Technical Group (5.5%); and Cemasco B.V. (15%). 2 2 See page 57of the record. 3

4 Proposed transaction 10. In terms of a preference share subscription agreement titled the Preference Share Subscription Agreement ( Agreement ) entered into in July 2008 between the PIC and Afrisam, the PIC (in its capacity as a preference share holder) has the right to call for the conversion of such of its unredeemed preference shares into ordinary conversion shares; the PIC has in fact delivered a notice to Afrisam calling for such conversion of shares. 3 The proposed transaction thus results from a conversion of a preference share into ordinary shares. Once implemented, the conversion will have the effect of increasing the PIC s equity stake in Afrisam from 24.5% to 99.8%. Thus the PIC, as representative for the GEPF, will solely control Afrisam on completion of the proposed transaction. Rationale for transaction 11. The merging parties submitted that the proposed deal will protect and preserve the operational and financial viability of Afrisam. 4 The GEPF further stated that it is committed to inject new capital into Afrisam and to assist in the raising of new capital. Impact on competition 12. As stated above, the GEPF is a defined benefit pension fund and Afrisam is a producer of various cement products and aggregates. Therefore there is no horizontal overlap or vertical relationship between the activities of the merging parties. 13. In relation to the GEPF s minority, non-controlling interests in certain firms that are in a vertical relationship to Afrisam (see paragraph 6 above), the Competition Commission ( Commission ) found that these interests are passive in nature and that the GEPF has no representation on the boards of any of these companies. The Commission furthermore found that neither Afrisam nor any of these companies have on their own dominant 3 See page 54of the record. 4 See page 67 of the record. 4

5 market positions in their respective markets. 5 The Commission therefore concluded that theproposed transaction does not raise significant competition concerns in relation to any vertically affected market. We concur with this view and do not deal with this aspect in any further detail. 14. The one area of potential competition concern was the minority, noncontrolling interest of the GEPF in PPC since PPC and Afrisam are in a horizontal relationship as direct competitors in the production of cement products and aggregates. Furthermore, these two firms have a large combined market share in the cement product market(s).in light of this horizontal overlap the concern regarding the competitive effects of the merger was the future possibility of cross-directorship at Afrisam and PCC, which could facilitate the exchange of information between competitors and thus potentially lead to collusion. 15. To address this potential competition concern the Commission recommended that two conditions be placed on the approval of the proposed deal. The merging parties acknowledged this potential concern and agreed to these conditions being imposed on them post-merger. These conditions are (i) for as long as the acquiring firm controls Afrisam, it shall not have any board representation on PPC or any other cement producer in South Africa at either holding company level or operational company level; and (ii) the GEPF must ensure the continued application of certain existing Chinese walls between the teams handling its investments in Afrisam and PPC. 16. In relation to the latter issue of Chinese walls, the merging parties submitted that structurally the investment of the GEPF in Afrisam on the one hand and PPC on the other hand sit in two completely separate divisions which are entirely separated from one another. They submitted that the interest in Afrisam is managed by the GEPF s unlisted team under the structure of the Isibaya Fund; the shareholdings in the minority held companies listed in paragraph 6 above fall within the responsibility of the 5 See page 17 of the Commission s report. 5

6 GEPF s listed equity team. The GEPF further submitted that the personnel managing the two separate portfolios are entirely separate from one another and that no information is permitted to flow between them The Tribunal agrees that these two conditions adequately address the identified potential competition concern. As such the Tribunal has imposed the conditions stated in paragraph 1 above. Public interest Employment 18. The merging parties confirmed that there will be no negative effects on employment or any retrenchments as a result of the proposed transaction. 7 We have no reason to believe that this transaction would have any negative effect on employment and therefore do not deal with this issue in any further detail. Other 19. From a public interest perspective, the GEPF argued that the proposed transaction will prevent the loss of the PIC s investment in the Afrisam group, which is essentially comprised of the pension fund savings of the South African government employees. 8 The GEPF submitted that it is selfevident that a compromise in its investment of several billions of Rands in Afrisam will have a devastating effect on the beneficiaries of the GEPF We deal with this issue in more detail below under certain public interest concerns raised by certain objectors to the proposed transaction. 6 See page 55 of the record. 7 See inter alia page 69 of the record. 8 See page 55 of the record. 9 See page 54 of the record. 6

7 Objecting participants 21. On 02 December 2011, Bunker Hills Investments 128 (Pty) Ltd, Friedshelf 970 (Pty) Ltd and Friedshelf 968 (Pty) Ltd, BEE firms, hereinafter referred to as the objectors initiated their objection to the merger by way of a letter to the Commission. Pre-merger theseobjectors collectively owned 60.5% of the ordinary shareholding in the Primary Target Firm, Afrisam. 22. The merging parties did not object to the objectors intervention The objectors made representation in respect of the following matters: The merger filing on behalf of the Primary Target Firm is unauthorised in that the Chief Executive Officer of the Primary Target Firm had no shareholder authority to submit a statement of merger information to the Competition Commission; The impression created by the Competition Commission report that the merging parties act in concert is not correct; The documents filed by the Primary Acquiring Firm and the Primary Target Firm with the Competition Commission, as well as the report of the Competition Commission, fail to deal with the impact of the proposed merger on the ability of firms controlled or owned by historically disadvantaged persons to be competitive, and erroneously concluded that the proposed transaction does not raise any significant public interest concern. The objectorsaver that the proposed merger would result in the effective exit by historically disadvantaged persons from the relevant market at no real compensation to themselves. 10 See transcript page 9. 7

8 24. The objectors raised the following points in limine: That there was no transaction as yet. The transaction or the existence of the transaction is a pre-requisite for the Tribunal to consider the approval of the merger; A challenge premised on the basis that for the Tribunal to sit in a matter there must be a proper investigation by the Commission. They contended that the investigation by the Commission was based on facts that have since been overrun by events. A transaction 25. Section 11(5)(c) of the Act defines a large merger as a merger or proposed merger....in the Anglo American Holdings and Kumba Resources Ltd matter 11, this Tribunal decided that a merger cannot be notified when it is still academic but that it may be notified even before all the details about the transaction that will constitute a change of control are known and before they have completed the process of acquisition. 12 There is no dispute in this case that there will be a change in the control of Afrisam in terms of the proposed transaction as notified, giving the PIC post-merger sole control of Afrisam. Furthermore, in terms of section 13A(3) of the Act a large merger may not be implemented until it has been approved, with or without conditions, by the Tribunal. Our view therefore is that it is not a requirement that there should be a transaction for this Tribunal to consider the approval of the merger, and as such this point in limine must fail. 26. As regards the second point in limine, that the merger has not adequately been investigated, we find that the merger has been adequately investigated. Furthermore section 16(2) provides that upon receiving a referral of a large merger and recommendation from the Competition Commission, the Competition Tribunal must consider the merger in terms 11 See Anglo American Holdings Ltd and Kumba Resources Ltd (CT case no. 46/LM/Jun02). 12 See Sutherland and Kemp Competition Law of South Africa (Service Issue 13 October 2010) par

9 of section 12A. This means that the Tribunal s decision is not bound by the recommendations made by the Commission. It must satisfy itself among other things, whether or not the merger is likely to substantially prevent or lessen competition and whether it can or cannot be justified on public interest grounds. As it appears in our conclusion below we are satisfied that the two conditions imposed will adequately address potential competition concerns. We also deal with the issue of public interest below. There is no possible basis for suggesting that the matter should be referred back to the Commission. This point therefore must also fail. Public Interest 27. We now turn to the argument raised by the objectors that the proposed merger would result in the effective exit by historically disadvantaged persons from the relevant market at no real compensation to themselves. 28. Section 12A(3)(c) provides that when determining whether a merger can or cannot be justified on public interest grounds, the Competition Commission or the Competition Tribunal must consider the effect that the merger will have on: (a).. (b).. (c).. the ability of small businesses or firms controlled or owned by historically disadvantaged persons, to become competitive It is important to emphasize that in terms of the Act our assessment of the public interest impact of the transaction may lead to the prohibition of (or the imposition of conditions on) a pro-competitive merger. Or it may result in us approving an anti-competitive merger. Hence in balancing public interest and competition we are obliged to consider whether a merger that passes muster on the competition evaluation nevertheless falls to be prohibited because of its negative impact on any of the specified public interest factors including, in terms of section 12A(3)(c), the effect that the merger will have on the ability of small businesses, or firms controlled or owned by historically disadvantage persons, to become competitive. 9

10 30. In this case the current BEE shareholders of Afrisam argued that postmerger they would lose their shareholding in Afrisam. Mr McNally, counsel for the merging parties, correctly pointed out that it is the ability of firms controlledor owned by historically disadvantaged persons to become competitive that must be considered and not the protection of BEEcontrolled firms against contractual obligations that were freely entered into. This Tribunal decided in the merger involving Nasionale Pers Ltd and Education Investment Corporation 13 that it will not permit its role in merger evaluation to be used as an opportunity for resolving commercial and contractual disputes. We conclude that the proposed transaction raises no concerns in relation to the ability of firms controlled or owned by historically disadvantaged persons to become competitive. CONCLUSION 31. The only competition issue of significant concern in this case was the minority, non-controlling shareholding that the GEPF currently has in PPC and the potential implications this has regarding the appointment of common directors and likely information exchange between Afrisam and PPC as direct competitors in the production of cement products and aggregates. 32. The Commission has found and concluded and we have concurred that given the imposed conditions on the proposed merger, competition will not be lessened as a result of the proposed transaction in any relevant market. The Tribunal is satisfied that the two conditions imposed, as stated in paragraph 1 above, will adequately address the potential competition concerns. 33. Furthermore, we conclude that the proposed deal raises no significant public interest concerns. 13 See Nasionale Pers Limited and Educational Investment Corporation Limited (CT case no. 45/LM/Apr00). 10

11 34. Given the above, we approve the proposed transaction subject to the imposed conditions as stipulated in paragraph 1 above. 04 July 2012 ANDISWA NDONI DATE Andreas Wessels and Medi Mokuena concurring Tribunal researcher: For the merging parties: For the objectors: For the Commission: Nicola Ilgner Edward Nathan Sonnenbergs Inc. Tshisevhe Gwina Ratshimbilani Inc. Mfundo Ngobese 11