Sibanye Platinum Bermuda (Pty) Ltd v Aquarius Platinum Ltd (LM186Nov15) [2016] ZACT 50; [2016] JOL 36380 (CT) (16 March 2016) per A Roskam TM (Manoim PM and Mokuena TM concurring)

On 16 March 2016 the Competition Tribunal conditionally approved two mergers of mining companies.  Reasons were provided on 26 April 2016.  But conditions were imposed regarding the protection of employees affected by the merger (see below).

Excerpts

The merging parties’ submissions:

[72]  The merging parties opposed the Commission’s and AMCU’s proposals.  They proposed that they be obliged to ensure that the requirements of the Mining Charter be adhered to.

Our assessment:

[73]  Having perused the provisions of the current Mining Charter, and bearing in mind that the Mining Charter is reviewed every five years, we are of the view that the Mining Charter sufficiently addresses the BEE and SME procurements concerns raised.  Moreover, we are of the view that it was inappropriate for the Commission to impose conditions or targets that exceeded those determined for the industry.

[74]  In addition, we are apprehensive that the Commission’s and AMCU’s proposals are impractical, as the current procurement policies and practices in place were not known and it was unclear how they would be measured and over what period they should be determined.

Conclusion

[75]  Therefore, we are of the view that the proposed transaction is unlikely to substantially prevent or lessen competition in the relevant market.  We agree with the Commission that the proposed transaction does give rise to significant public interest concerns.  We therefore approve the merger subject to employment and BEE procurement conditions attached hereto as Annexure A.

Extract from conditions in annex “A”

2.     CONDITIONS TO THE APPROVAL OF THE MERGER

2.1.      Employment

2.1.1.   The Merging Parties shall limit retrenchments to the Affected Employees (i.e. the 14 (fourteen) Non-Site Office Employees identified in Annexure B) and, subject to clause 2.1.2 below, shall ensure that there are no other retrenchments at the Merging Parties’ operations as a result of the Merger for a period of twenty four months (2 years) from the Implementation Date.

2.1.2.   In the event that the Potential Consolidation does in fact occur within twenty four months (2 years) following the Rustenburg Mines Implementation Date, any retrenchments as a result of the Potential Consolidation shall be limited to the Potential Consolidation Employees.

2.1.3.   For the sake of clarity, retrenchments do not include:

(i) voluntary separation arrangements;

(ii) voluntary early retirement packages;

(iii) unreasonable refusals to be redeployed in accordance with the provisions of the LRA;

(iv) resignations or retirements in the ordinary course of business;

(v) retrenchments lawfully effected for operational requirements unrelated to the Merger or Potential Consolidation;

(vi) terminations in the ordinary course of business, including but not limited to, dismissals as a result of misconduct or poor performance; and

(vii) any decision not to renew or extend a contract of a contract worker.

2.2.      BEE Procurement Policy

2.2.1.   The Merging Parties shall ensure that the BEE procurement policy currently in place at AQPSA continues to comply with the requirements as set out in the Mining Charter as determined from time to time.

3.     MONITORING OF COMPLIANCE WITH THE CONDITIONS

3.1.      The Merging Parties shall circulate a copy of the Conditions to all its employees and their relevant Trade Unions and/or employee representatives within 5 (five) business days of the Approval Date.

3.2.      The Merging Parties shall circulate a copy of the Conditions to the Beneficiaries of the Aquarius current BEE procurement policy within 5 (five) business days of the Approval Date.

3.3.      As proof of compliance with 3.1 and 3.2 above, a senior official of the Merging Parties shall within 10 (ten) business days of circulating the Conditions, submit an affidavit attesting to the circulation of the Conditions and provide a copy of the notice that was sent to all employees and the Beneficiaries of the Aquarius current BEE procurement policy.

3.4.      The Merging Parties shall inform the Commission of the Implementation Date within five (5) days of its occurrence.

3.5.      Any employee and/or Beneficiary of the Aquarius current BEE procurement policy who believes that his/her employment and/or contract with the Merging Parties has been terminated in contravention of the Conditions may approach the Commission with his or her complaint.

3.6.      The Acquiring Firm shall submit an affidavit (deposed to by a senior official of the Acquiring Firm) on each anniversary of the Implementation Date, confirming compliance with clause 2.1.1 of the Conditions for the duration of the Conditions (determined with reference to clause 2.1.1 above).

3.7.      The Merging Parties shall be entitled, upon good cause shown, to apply to the Tribunal for a waiver, relaxation, modification and/or substitution of one or more of the Conditions.