The Legal 500

The Impact of Competition Law changes/developments (including the practices and policies of the Commission/Tribunal) on M&A activity - with a specific focus on 2008 and also forward looking taking into account expected legislative changes. If possible mention actual company names/cases wherever possible to make it have real life application

It is hoped that the President will refer the Competition Amendment Bill to the Constitutional Court rather than sign it into to law so as to resolve its unconstitutionality and avoid unnecessary litigation. Failure to do so will spark constitutional challenges which will prevent it from being implemented while that litigation unfolds.

The trend over the past decade in the USA, and more recently in the UK after the enactment of its new Companies Act in 2006, towards more aggressive shareholder activism seems likely to be followed in South Africa once our new Companies Act becomes operative.  This new Act is only awaiting the State President’s signature in order to become law, although it will only come into operation at least one year after the State President does so.

Reproduced with permission from Law Business Research Ltd. This article was first published in The Mergers & Acquisitions Review, (published in September 2008 - editor Simon Robinson).

It is quite common in commercial practice in South Africa for businessmen to dispose of their entire business undertakings.  Disposing of an entire business undertaking implies disposing of the business as a going concern and would include all of the assets and liabilities of the seller.  In addition to assets and liabilities the disposal of the entire business undertaking normally also includes the transfer of employees, customers and other business arrangements from the seller to the buyer.

The recent Department of Environmental Affairs and Tourism Report on mitigation of South Africa's greenhouse gas emissions brings the era of South African carbon trading closer.  This is because the report proposes emissions reduction targets and internationally this has generally led to the creation of a market in emissions reductions.

As time has passed, the competition authorities’ notion of control and commercial reality seem to have moved further and further apart.