Tribunal rejects IDC request to see Anglo advisory
Tribunal rejects IDC request to see Anglo advisory opinion
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THE Competition Tribunal yesterday turned down a request by the counsel for the Industrial Development Corporation (IDC) to see confidential documents relating to an advisory opinion the Competition Commission gave to Anglo American last year, saying it was not necessary.
This decision makes it unlikely that the IDC's lawyers will look to derail the Competition Tribunal hearing into Anglo's plans to take a controlling interest in Kumba Resources on the ground that the Anglo application before the tribunal was different to the one originally submitted in August last year.
The IDC said it would not appeal against the tribunal decision.
"There is nothing on the paper to suggest even remotely that any of the documents could assist our function in assessing the current merger or in establishing whether the tribunal jurisdiction to entertain the application currently before it," said the tribunal. The IDC's counsel argued last week that they needed to view the documents to ascertain if they had any relevance to the current tribunal. Anglo argued that if the confidential documents were handed over it would set a negative precedent where both the confidential aspects of the Competition Commission and tribunal's roles were concerned.
David Unterhalter, Anglo's counsel, had also argued that the IDC did not have jurisdiction under the terms of the bounds of its intervention in the hearing to make applications to the tribunal. "We are very pleased with the Competition Tribunal finding as this has removed what, hopefully, will be the final obstacle to the swift closing of arguments and resolution of the Kumba matter," said Anglo spokeswoman Anne Dunn yesterday.
The tribunal said the IDC was asking to view an advisory opinion given to Anglo by the Competition Commission and it concerned "the implementation of an option to purchase Stimela whose sole asset is a 10,5% stake in Kumba". It appears that Anglo's right to exercise the Stimela option to buy Kumba shares was only one of a series of transactions which the tribunal said related to Anglo's plans to take control of Kumba. Thus the IDC's request to see the documents was denied.
Anglo had sought an advisory opinion from the commission asking if it could exercise its Stimela option in Kumba "without fear of implementing a merger without appropriate approval," said the tribunal.
The tribunal said the commission concluded that Anglo exercising its Stimela option to buy Kumba shares would not result in a change of control and would not "constitute prior implementation of the merger".
At the Competition Tribunal hearing scheduled for August 6 and 7 it is likely that both the IDC and Anglo will present their closing arguments to the panel.
Jul 10 2003 07:46:58:000AM Julie Bain Business Day 1st Edition
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