Competition Tribunal approves the Sibanye Stillwater / Lonmin merger with conditions
* NOTE: The Competition Tribunals order and conditions are available on www.comptrib.co.za
Today the Competition Tribunal approved the merger between Sibanye Gold Ltd t/a Sibanye Stillwater and Lonmin Plc with conditions. The Tribunal issued the statement below with the order and conditions.
TRIBUNAL STATEMENT
[1] The Tribunal has decided to issue this statement in order to provide context to the Conditions on which the Tribunal has approved the Lonmin & Sibanye merger. Full reasons for our decision will follow in due course. The statement will address only the conditions in respect of retrenchments and the Social Labour Plans (SLPs).
Retrenchments
[2] This merger involves massive public interest issues involving extensive job losses and impact in the platinum mining region of the North West.
[3] The issue of which retrenchments related to Lonmin’s operational requirements and which were merger-specific became an intensely disputed issue.
[4] Sibanye, as part of its operational plan envisioned that it will retrench 13 334 jobs post-merger. Of these, only 885 are merger specific since they arise from a duplication in overheads.
[5] Lonmin in its plan of October 2017 (“Lonmin October plan”) planned to retrench 10 156 employees. The Commission, after investigating the merger, considers the difference between the Lonmin October plan (also called the Stand-Alone plan) and Sibanye’s plan to be merger specific under the purview of the Act. In its recommendation, it argues that any figure of retrenchments over and above 10 156 is to be considered merger specific. AMCU, the intervening party argued that all the planned retrenchments should be viewed as merger related.
[6] The issue of identifying the exact number of merger related retrenchments is thus not clear-cut. Even the figure of 885 is not easily identified as being merger related because the number is calculated by Sibanye as being the difference between savings of 62 jobs at the operational level and overhead merger related job losses of 947.
[7] The merging parties have been transparent and co-operative with the Commission and the Tribunal in sharing their assessment of the possible number (between 10 156 and 13 444) of job losses.
[8] In addition, Sibanye has been co-operative in providing several undertakings. It has undertaken to do a feasibility study in an Agri-Industrial Program, an economic assessment of further investments in identified shafts and establishing a consultative forum in respect of the implementation of SLPS.
[9] Its undertaking in respect of retrenchments was a moratorium for six months on the retrenchment of 1831 jobs.
[10] After giving due consideration to this undertaking, the Tribunal is unable to determine the exact number of merger specific retrenchments which may on any construction be between 885 and 13 344. In order to protect what would be the merger specific job losses, whether this number be 885, 1831, 10 156 or 13 344, our view is that Sibanye should be given an opportunity to do an in-depth assessment of the operational requirements of the target firm and to consult with all relevant stakeholders which include trade unions. Accordingly, it is our view that the public interest will be best served if a moratorium were placed on all retrenchments for a period of 6 months from the implementation date.
SLP’S
[11] The conditions in respect of the SLPS are self-evident, but fuller reasons will be provided in due course.
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21 November 2018 |
Mr Enver Daniels
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| Ms Yasmin Carrim and Ms Mondo Mazwai concurring. |
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