None of the parties attending the tribunal’s prehearing on Tuesday is opposing the transaction, but each has indicated it wanted to make submissions that might affect the conditions attached to the commission’s approval.
The lack of opposition and the planned format of the tribunal’s hearing, which is scheduled to run for three days from 22 June, means that for the first time since the merger was filed with the competition authorities in December 2015, the timing and outcome of the proceedings is reasonably secure. The hearing is not expected to run over the scheduled timetable and, in terms of the Competition Act, the tribunal has to issue an order within 10 working days.
The only party that asked for, and was granted, the right to call a witness is the Food and Allied Workers Union (Fawu). The merging parties agreed to allocate one of the three days to Fawu’s intervention, which is expected to focus on the public interest aspects of the Zenzele black empowerment scheme.
The format of the hearing will ensure it is contained within the allotted three days. The format reflects the fact that the deal raises no competition issues, and that Economic Development Minister Ebrahim Patel has extracted a lengthy list of public-interest conditions from the merging parties.
Delays at the tribunal are generally due to intervening parties demanding access to documents and being opposed by the merging parties. Delays are also caused by examination of witnesses, of which there will be only one.
The parties making submissions include Heineken, Distell, the South African Taverners Association, and the Small Medium and Micro Enterprises (SMME) Forum. They are required to present written submissions to the tribunal by June 15 and will then have an opportunity to make an oral submission at the hearing. Tebogo Khaas, president of the SMME Forum, said on Wednesday that he had concerns about the proposed governance of the development fund being set up, and the lack of any detailed plan for implementing its objectives.
Fawu, which has not asked for the deal to be prohibited, is expected to ask the tribunal to impose additional conditions.
Bloomberg reports that the Chinese authorities are leaning towards approving the $108bn merger. The Chinese authorities are expected to grant conditional approval, although there are no major competitive issues.
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