Competition law and FDI

Merger control

We have successfully advised several clients in cross-border mergers seeking merger control approval. The Primerio team members have advised on merger control notifications in South Africa, Kenya, Nigeria, Egypt, Cameroon, Eswatini, Namibia, Botswana, Zambia, Zimbabwe, Tanzania, Mauritius, Malawi, Ethiopia, Angola, and Mozambique as well as before regional agencies such as COMESA, CEMAC and ECOWAS.

Landmark Cases

• Advised Premier FMCG and Lodestone Brands in relation to obtaining merger approval in South Africa, Eswatini, Botswana and Namibia in respect of Premier’s acquisition of Mister Sweet. 
• Advised the merging parties, Overlooked Colliery (Pty) Ltd and Mooiplaats Coal Holdings (Pty) Ltd, in obtaining merger approval before the South African Competition Commission. 
• Obtained unconditional merger approval before the South African Competition Commission in relation to Eutalsat Communications S.A.’s acquisition of OneWeb Holdings Limited. 
• Obtained merger approval before the Nigerian Federal Competition and Consumer Protection Commission in relation to a private equity firm in what was one of the first mergers to be notified under the new Nigerian competition regime. 
• Obtained merger approval before the COMESA Competition Commission in respect of a private equity fund’s acquisition of a global chemicals manufacturer. 
• Obtained merger clearance before the competition authorities in Ethiopia in relation to Voith Group’s acquisition of Siemens Energy’s remaining stake in Voith Hydro. 

• Obtained merger control approval before the Kenyan authority in relation to a significant property investment and development project. 
• Assisted a multinational firm in obtaining clearance before the Angolan Competition Regulatory Authority. 
• Advised a significant FMCG client in obtaining merger control approval before the Eswatini competition agency. 
• Obtained merger clearance in Egypt in relation to the Rockwell/Schlumberger transaction. 
• Members of the Primerio team previously represented a shipping company in merger control proceedings before the Cameroon and CEMAC competition authorities. 
• Advised Monsanto Company in the GCR matter of the year in obtaining merger approval in South Africa, Tanzania, COMESA and Kenya. 

Cartel conduct

Primerio advises clients in relation to all aspects of cartel investigations. These have included in relation to numerous precedent setting cases. The team has experience in trial preparation and cartel defence before the preeminent agencies in South Africa and regionally. 

Landmark Cases. 

• Representing one of the largest international automotive companies before the South African Competition Tribunal in relation to price fixing and market allocation complaint referrals. 
• Representing an FMCG company in obtaining leniency in relation to the highly publicized bread cartel without the imposition of any penalties or civil damages. 
• Representing clients within the LPG market before the South African Competition Tribunal in relation to the allegations of price fixing. 
• Advising an FMCG client before the Supreme Court of Appeal and Constitutional Court in relation to the first ever class action case brought in South Africa. 
• Currently advising a large safety equipment manufacturer and distributor regarding allegations of collusive tendering before the South African competition agencies. 
• Advised an air cargo client in relation to the largest investigation into price fixing on fuel surcharges and cargo rates, by the South African agencies.  
• Representing parties in relation to the long-steel sector regarding price fixing allegations.  
• Successfully advising clients in obtaining corporate leniency in relation to cartel conduct in the automotive sector. 
• Advised a golfing retail chain in defending a cartel complaint allegation.  
• Advised a leniency application in relation to motion picture, related theatrical and entertainment licensing sector, which ultimately progressed to the Constitutional Court.  

Investigations

Leniency Applications 

Primerio continues to counsel both domestic and multinational clients through the leniency programs available including preparing market leniency applications, negotiating conditional leniency agreements, and counselling clients through the investigation and trial to obtain final immunity. 

Dawn Raids 

The Primerio team have regularly assisted clients who are subjected to dawn raids (search and seizure investigations) both on site during the dawn raid and post raid. This includes dealing with evidence collation issues and post-raid investigation matters.  

Follow On Damages and Class Action Litigation

Primerio team members were involved in the precedent setting bread cartel case in South Africa in which follow-on damages were pursued as well as subsequent litigation involving the recognition of class actions under South African law. Primerio successfully counselled and advised the leniency applicant both in obtaining leniency as well as in the civil class action case brought against it and the other respondents. This case led to one of the longest and most publcised cartel investigations in South African history. 

This case also inspired lead counsel, John Oxenham, to produce the first ever South African textbook on class action litigation, titled “Class Action Litigation in South Africa.”  

Abuse of Dominance

Primerio’s team is experienced in advising clients in respect of all abuse of dominance cases. We have successfully defended several complaints across a variety of sectors as well as successfully pursued abuse of dominance complaints on behalf of our clients. The firm is particularly strong in the interplay between competition law and intellectual property abuse cases. 

Landmark cases

• Successfully representing Makarenge Electrical Industries (Pty) Ltd t/a Wilec in obtaining an interim relief from the South African Competition Tribunal in relation to an abuse of dominance by Allbro (Pty) Ltd. This matter was notable matter given the interconnect between intellectual property and competition law. Allbro (Pty) Ltd alleged to have copyright over the products in question. In its reasons, the Competition Tribunal confirmed that the Competition Act applied to intellectual property disputes and confirmed its jurisdiction to hear matters relating to the interplay between competition law and intellectual property. The Tribunal granted the relief requested.  
• Representing two separate clients in the ICT sector in successfully defending excessive pricing and refusal to deal allegations. 
• Currently representing a multinational FMCG firm against allegations of abuse of dominance in relation to a refusal to deal and exclusionary conduct complaint involving Plant Breeders Rights.  
• Successfully represented clients within the agrochemical and pharmaceutical sector against a variety of alleged abuse of dominance claims. 
• Advising a client in relation to allegations of price discrimination before the South African agencies.  
• Successfully advised a large technology company in relation to an abuse of dominance complaint before the South African competition authorities 
• Successfully defending a client in the optometry sector in relation to various abuse of dominance complaints.  

Market Inquiries & Exemptions

Primerio has been involved in all of the market inquiries conducted in South Africa including the implementation of recommendations following the conclusion of the respective inquiries and often advise clients in relation to exemption applications.

Market Inquiries

Primerio advised various clients in relation to the following market inquiries: the fresh produce market inquiry, the banking market inquiry, the data market inquiry, the healthcare market inquiry, the LPG market inquiry, the public passenger transport market inquiry, the grocery retail market inquiry as well as the fresh produce market inquiry.  

In this regard, Primerio is well versed in assisting clients with comments to terms of reference, preparation of submissions on behalf of clients, review of information requests, preparing oral submissions to the relevant regulator as well as advising clients on particular legal risks associated with a market inquiry.  

We collaborate with well-regarded economists and advisors in order to provide our clients with the highest-quality legal advice, ensuring clients legal rights are well protected and potential competition complains and subsequent litigation is avoided.

Exemption Applications

The use of exemptions has frequently been used although there was previously a high benchmark which was required to be met in order to succeed with such an application. 

The Primerio team has successfully obtained exemptions in the airline sector (in respect of code sharing arrangements) and often provide clients with advice in relation to exemption applications.  

Intellectual Property

Our Globally recognised Intellectual Property team assist clients in protecting, managing, and utilising Intellectual Property (“IP”) in a practical, business-focused manner.

We provide a full service offering for IP and ancillary matters, including: Securing registrations, maintaining portfolios to resolving disputes and supporting transactions in South Africa, the African region, and offshore. We work closely with clients to align protection, compliance, and commercial goals so that IP is safeguarded, enforceable, and able to support growth.

We can assist with the following:

• Securing registered rights for trademarks, designs and patents locally, regionally and offshore.
• Handling all types of civil litigation that involves IP, as well criminal, including, inter alia, counterfeiting and criminal copyright infringement.
• Valuations of IP.
• Commercialisation of IP including using IP as an asset to raise finance and for structuring a merger or acquisition or as a payment mechanism.
• Assignment and Licencing of IP as well as setting up structures so that monies can be transferred offshore that is tax efficient and does not breach exchange control.
• Advising on and addressing conflicts between IP and Competition Law.
• Due diligence involving IP (both registered and unregistered) to, inter alia, ensure that there is adequate protection and that the registered rights are in fact bona fide and capable of enforcing and ascribing a value thereto, that know-how is included in the value and ability to commercialise, ensuring the validity of the registered rights (RSA Patents Office has no examination as to merits but only formalities), ensuring IP is not encumbered etc.
• Dealing with conflicts between the Companies Act and the various IP legislation.
• Advising and structuring in accordance with client’s interest to either permit or prohibit parallel importation and dealing with the interplay between the Copyright Act, Consumer Protection Act and Trade Marks Act in order to achieve the desired outcome for the specific needs of a client.
• Dealing with counterfeiting and ensuring the necessary structuring is in place so that there is locus standi to enforce rights in order that damages may be claimed civilly.
• Using IP treaties for member states such as, inter alia, WIPO, Berne Convention and Paris Convention to benefit clients who are registered in signatory countries.
• Advising on and ensuring clients have the necessary registration of its IP and formalities complied with so that it can then harness the forum of the Advertising Standards Board to enforce their rights.
• Advising on and protecting IT assets, confidential information, and other unregistrable intangible assets via having the appropriate contracts in place.
• Dealing with the various regulatory bodies for IP including CIPC.
• Structuring and advising on the Income Tax Act to harness the benefits afforded to IP including R&D, inter alia, Sections 11a and 11D of the Income Tax Act.
• Advising on IP and its interplay with crypto and how copyright infringement applies, especially with NFTs.
• Advising on having the necessary agreements and structures in place so that employees cannot usurp IP on termination of their employment considering that Restraints of Trade Agreements are extremely difficult to enforce without having the IP properly protected and firewalled.
• Advising on and putting measures in place to ensure IP is protected and reserved so that these assets do not fall into the public domain and/or the defence of innocent infringer can then be negated.

IP Law and antitrust

The Primerio team is intimately familiar with both intellectual property and antitrust principles, as well as their interplay. 

Landmark cases

Successfully representing Makarange Electrical Industries (Pty) Ltd t/a Wilec in obtaining an interim relief from the South African Competition Tribunal in relation to an abuse of dominance by Allbro (Pty) Ltd. This matter was notable matter given the interconnect between intellectual property and competition law. Allbro (Pty) Ltd alleged to have copyright over the products in question. In its reasons, the Competition Tribunal confirmed that the Competition Act applied to intellectual property disputes and confirmed its jurisdiction to hear matters relating to the interplay between competition law and intellectual property. The Tribunal granted the relief requested.  

Click here to view the publication of this win. (Pg 26 herein)

Foreign direct Investment (FDI)

Our competition team is able to competently advise on foreign direct investment analysis and obtain approvals from relevant agencies. 

As FDI becomes an increasingly important consideration in multi-jurisdictional transactions, Primerio is at the forefront in remaining abreast of FDI developments across Africa.  

Members of the Primero team formed part of Business Unity South Africa’s Task Team to engage the Minister of Trade and Industry of South Africa regarding recent amendments to South Africa’s foreign direct investment regime (soon to be brought into effect).  

Primerio has also published a quick reference guide to FDI regimes in Africa.