South Africa: Sharp differences on the last day of Competition Tribunal’s hearings over AB InBev’s acquisition of SABMiller

Sharp differences over the definition of “outlet” emerged on the last day of Competition Tribunal hearings over Anheuser-Busch (AB) InBev’s acquisition of SABMiller, Independent Online reported on June 27.

The commission had proposed that outlet referred to “retail outlets and taverns”.

But Heineken suggested a definition that included off-trade outlets such as grocery stores and on-trade outlets such as taverns, hotels, restaurants and nightclubs.

Distell legal representative Jeremy Gauntlett, on the other hand, called Heineken’s proposal a “partial laundry list”.

An agreement on what constitutes an outlet is significant given possible contractual relationships between liquor companies and sports stadiums where liquor is sold.

The tribunal, however, did not deal with the apparent disagreement over the definition. Chairman Norman Manoim on June 24 said the tribunal would consider the matter if a complaint was lodged.

Meanwhile, appearing on behalf of Minister of Economic Development Ebrahim Patel, Paul Coetser on June 24 urged the tribunal not to tamper with the conditions that came out as a result of the agreement between the department and the merging companies. He said the tribunal should not re-negotiate the “sacrosanct” conditions. These relate to public interest elements of the transaction.

“It is not the job of the tribunal to craft an agreement for the parties,” said Coetser. He said the tribunal should hold AB InBev to its bargain with South Africa. “That is the promise to the country. Why should we expect less from them,” he said.

This was after Manoim on June 22 raised questions about a clause in the Competition Commission conditions on the deal that the condition of a moratorium on job losses as a result of the transaction would endure in perpetuity.

“I do not know if this is a result of your agreement with the merging parties or not, but surely we cannot have a condition that is merger-specific and endures in perpetuity and that an appropriate time limit should be inserted here.

“So, perhaps, you and the merging parties and, if necessary, the government representatives, can consider that and put an appropriate period on that,” Manoim said.

He said conditions of the deal needed “proportionality and rationality”. Anisa Kessery of the Competition Commission on June 24 told the tribunal that the clause on a moratorium on retrenchments, which was part of a broader agreement with the Department of Economic Development, did not affect the conditions that the commission had set for the transaction.

In its conditions, the commission included AB InBev’s proposal that the regional head office be in South Africa for at least five years. The location of the head office was supposed to indicate AB InBev’s commitment to South Africa.

But Coetser questioned the inclusion of a five-year period.

Frank Snyckers, an advocate for AB InBev and SABMiller, on June 22 confirmed that the merging firms and the government had not agreed on the duration of the head office location but said it would be at least five years.

Snyckers also responded to Heineken’s sharp criticism of the transaction and fears that the merged entity would abuse its dominance in the South African market. He said Heineken made the claims because it wanted to secure for itself protectionism and to get what he called a helping hand.

“The conditions insisted by Heineken are a plea for protection,” he said.

Heineken had claimed on June 22 that the merged entity could elbow out competitors as it would need to aggressively market its brands.

The merged entity could influence owners of retail outlets not to offer space to competitors of the merged entity, Heineken said.

“We know that there is a finite source of fridge space, cold storage space, (and) point of sale space,” said Anthony Norton, an advocate for Heineken.

27 June, 2016