Project #6 - Prioritising gendered public interest considerations - Betty Mkatshwa, Mpumelelo Tshabalala and Sonia Phalatse

Further, the Act allows the Minister, trade unions and employee representatives to appeal merger decisions of the Commission and the Tribunal, to the CAC.67 In toto, rights to participate in Tribunal hearings68 relating to mergers, are afforded to the following persons: (i) any party to the merger; (ii) the Competition Commission; (iii) any person who was entitled to receive notice of the merger t. [...] In the Forestry Impact Study, the Commission considers the impact of merger decisions since the inception of the Commission and the Tribunal in the forestry industry. [...] Further, it is clear that the merger assessment needs to be guided by the principles of proportionality and substantiality, and the evidence provided by the intervenors and the merger parties plays an important role in evaluating the “substantial” nature of the concern. [...] PHALATSE The CAC was critical of the Tribunal’s approach in considering this remedy, as it held that the Tribunal failed to determine whether the amount was excessive or too little, and what effect it would have in dealing with the concerns it sought to address.114 The CAC noted the complexities of determining the appropriate remedy in relation to the procurement concern raised by the intervenors,. [...] Again, we reiterate that while the merger provisions of the Act allow key stakeholders to participate in merger proceedings before the authorities in order to aid the enforcement and application of public interest, the decision-making power to determine the true effect of a merger on markets as well as the public interest, vests solely with the competition authorities.