Walmart and Massmart were accused of being “arrogant, high-handed and obstructive” by the government’s legal team at the Competition Tribunal’s hearing on Friday.
The hearing was dealing with the request by three government departments for information from the merging parties. The government argued that the information was needed for it to submit its case on the public interest aspects of the merger.
On Friday evening the tribunal ruled in support of the request for additional economic information and directed the merging parties to supply the requested information relating to the merger. However, the tribunal also ruled the merging parties did not have to provide the three departments with any information relating to labour issues.
The tribunal’s ruling followed another tense hearing at which counsel for the Departments of Economic Development, Trade and Industry, and Agriculture, Forestry and Fisheries called the merging parties “high-handed, arrogant and obstructive”.
Counsel for the three departments, Rafik Bhana, told the tribunal that the government’s right to participate in the proceedings had been recognised and that for the government to participate effectively it needed the information requested.
Bhana said the merging parties were attempting to “bulldoze” the merger through, on the basis of the very few facts they had presented to the Competition Commission during its investigation process.
Bhana said the government departments had requested at least 29 main categories of information and more sub-categories. “We received responses to eight and of these only three were complete responses.”
He said the thrust of the government’s participation related to procurement issues, but noted the Department of Economic Development’s submission, which had been accepted by the tribunal, was not limited to procurement. Bhana argued labour issues were an aspect of public interest issues.
David Unterhalter, the counsel for the merging parties, said it was the three ministers who were arrogant. He said what the three departments wanted to do now was “to revisit the very premise by which this merger has been regulated… if this happens it will make your (the tribunal’s) process ungovernable.”
Unterhalter questioned the basis on which the departments were participating and noted they had presented no submission to the tribunal.
He said the government had overseen an “engagement” process with the merging parties and the unions in the hope it would not be required to engage in the competition authorities’ process.
“We said very clearly that we weren’t willing to give them the procurement undertakings, but despite this the government chose not to engage with the Competition Commission process. If you’re not going to engage, you can’t come in later,” he said, pointing out that the commission had “engaged in months of work” to reach its recommendation.
He said for the three ministers to say the commission “had the wool pulled over their eyes” by the merging parties reflected a lack of respect for the commission.