The Competition Appeal Court has given Johnny Copelyn’s Hosken Consolidated Investments (HCI) the all clear to restructure the gaming interests held by its listed subsidiaries Tsogo Sun and Niveus, says a Business Day report. Just hours before HCI’s self-imposed deadline of 31 October, the court released a decision that could upend 20 years of competition law precedence.

It creates an opportunity for merging parties to bypass the Competition Commission and seek a favourable ruling from the Competition Appeal Court. The court ruled the proposed transaction – which involves three listed firms – was not a notifiable merger in terms of the Competition Act. The court said the commission could not require a transaction to be notified ‘based on a reason that it wishes to assess the implications of such transaction’.

It said HCI’s proposed restructuring did not give rise to a situation of a change in qualitative control. The report notes the commission and Competition Tribunal conducted an assessment of HCI’s acquisition of control of Tsogo Sun in 2014, when it acquired SABMiller’s Tsogo Sun shares. The Competition Appeal Court said that in 2014, the commission ‘was aware that in time, HCI would exert sole control over the gaming interests of both Tsogo and Niveus. ‘At the same time, HCI also enjoyed sole control of Niveus’ gaming interests’.

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