Although the revised guidelines do not have the status of enforceable legislation, they nevertheless provide a clear indication of how the commission, having received commentary from interested parties on its draft guidelines, is likely to approach the public interest component of merger regulation in South Africa.
While the revised guidelines are largely unchanged from the earlier draft version, the commission has made certain noteworthy amendments, some of which are highlighted below. Secondly, several other amendments appear to expand the scope of application of the public interest grounds. For instance, the revised guidelines provide that where “on the public interest, the commission will likely conclude that the merger is not justifiable on substantial public interestThis suggests that the commission’s view is that even a single substantial effect on one public interest factor is capable of rendering a merger unjustifiable.
While merger parties may try to argue that it is more challenging for foreign firms to promote ownership given their limited presence in South Africa, the revised guidelines expressly state that mergers involving an acquiring firm and a target firm registered outside South Africa and notifiable in South Africa are subject to section 12A of the Competition Act more generally, and section 12A in particular.