Tribunal Dismisses Goldfield Application
PRESS RELEASE
18 November 2004
The Competition Tribunal has today, 18 November 2004, dismissed an urgent
application brought by Gold Fields to interdict the implementation of the early
settlement offer, which is the first stage of Harmony`s two part bid for Gold
Fields. Gold Fields had argued that this amounted to implementation of a merger
without prior notification.
The Tribunal after analysing the evidence on the papers found that Gold Fields
had failed to make out case that the early settlement constituted a merger and
denied Gold Field relief.
On the question of the relationship with Norilsk, the Tribunal found that Gold
Fields had not established that the understanding had gone beyond the
undertaking. Although evidence of a merchant banker`s presentation had been
read out at the hearing by Gold Field`s counsel, to attempt to support the
contention that Harmony and Norlisk were concert parties, the Tribunal placed no
reliance on this, as the document had not been placed in context, nor had the
Harmony and Norilsk been given an opportunity to explain it.
Tribunal Chairperson David Lewis, in a separate concurring opinion, said that a
different finding on joint control may well have been justified had there been
other agreements already concluded between Harmony and Norilsk.
However, he said, my willingness to accept Harmony and Norilsk`s undertakings
that they have formed an opportunistic alliance is bolstered by the knowledge -
and, I have no doubt, Harmony and Norilsk are accordingly advised by their legal
advisers - of the serious consequences that would flow from having perjured
themselves before several regulatory bodies both in South Africa and the United
States.
`Apart from the criminal sanction that this would invite, in terms of the
Competition Act alone they would also lay themselves open to a swingeing
administrative penalty as well as the very real prospect of having to unwind a
merger deceitfully implemented. The reputational consequences for both Harmony
and Norilsk, would, of course, be incalculable`.
He also cautioned that the Competition Act should not be used to chill hostile
mergers which are an important part of the very competitive process that the
Tribunal is mandated to defend and promote.
Issued by: Jane Sussens
Communications Advisor
Tel: (011) 483 2687
Cell: 082 920 0875
Fax: (011) 483 2686
On Behalf of: Shan Ramburuth
CEO
The Competition Tribunal
Tel: (012) 394 3353
Fax (012) 394 0169
Cell: 083 357 1685
E-Mail: shanr@comptrib.co.za
Date: 18/11/2004 05:19:32 PM
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