The Competition Appeal Court (CAC) has overturned a decision of the Competition Tribunal, ruling in favour of Pepkor Holdings Ltd and Shoprite Holdings Ltd in their appeal against the wide-ranging intervention rights that had been granted to Lewis Stores (Pty) Ltd.

This significant judgment reshapes the boundaries of third-party participation in merger proceedings under South Africa’s Competition Act 89 of 1998, emphasising that intervention must be both measured and purposeful, without undermining the Competition Commission’s statutory role.

Background to the Merger

The case arose from Pepkor’s proposed acquisition of Shoprite’s furniture business, which would combine South Africa’s largest furniture retailer (Pepkor) with the country’s third-largest (Shoprite’s furniture division).

Following its investigation, the Competition Commission recommended that the merger be approved, subject to public interest conditions relating to employment retention and support for local furniture suppliers.

However, Lewis Stores, a competitor in the same market, sought to intervene in the proceedings before the Competition Tribunal, arguing that it had a substantial commercial interest and could offer unique insights into market dynamics, consumer behaviour, and potential anti-competitive outcomes.

Tribunal’s Initial Ruling

The Competition Tribunal allowed Lewis to intervene broadly. The Tribunal reasoned that Lewis could assist with information on market share, customer preferences, local market overlap, and online retail trends.

The Tribunal granted Lewis extensive procedural rights, including access to confidential records, participation in pre-hearing conferences, the right to discovery, the ability to summon witnesses and documents, cross-examination, and submission of evidence and argument.

Pepkor and Shoprite challenged the ruling, arguing that the Tribunal had overreached and that such sweeping intervention compromised the confidentiality and efficiency of the merger process.

Interim Suspension by the Competition Appeal Court

On 29 August 2025, the Competition Appeal Court suspended the Tribunal’s order pending appeal. This interim relief aimed to prevent the release of the merging parties’ confidential and commercially sensitive information.

In doing so, the CAC reaffirmed two key principles from prior case law:

Intervention is permissible but must remain limited to the specific theory of harm advanced by the intervenor; and

Such participation should assist, not replace, the Commission’s investigative mandate.

Final Judgment: Tribunal’s Decision Set Aside

On 8 October 2025, the CAC handed down its final decision, finding that the Tribunal had misdirected its discretion and granted rights that exceeded the proper bounds of intervention. The CAC therefore set aside the Tribunal’s ruling and dismissed Lewis’s intervention application entirely.

The Court clarified several important principles:

1. Standard for Intervention – An intervenor must present specific, verifiable evidence that will materially assist the Tribunal in assessing the merger’s likely effects. A general or speculative commercial interest is insufficient.
2. Balancing Fairness and Efficiency – The Tribunal must weigh the potential value of an intervenor’s contribution against the delay, cost, and procedural complexity that such participation may cause.
3. The CAC warned that “Stalingrad tactics” — procedural delays designed to obstruct merger finalisation — have no place in merger control proceedings.
4. Scope of Procedural Rights – Even when intervention is allowed, procedural rights are not automatic. Each right (such as discovery or cross-examination) must be specifically justified as necessary for the purpose of the intervention.
5. Tribunal’s Inquisitorial Powers – The CAC reaffirmed that the Tribunal possesses inquisitorial authority, allowing it to summon witnesses or request further evidence from the Commission without granting full-party rights to competitors.

Implications for Competition Law Practice

This decision sends a clear message to both merging firms and potential intervenors:

Competitors seeking intervention must demonstrate that their participation adds tangible, non-speculative value to the inquiry.

Merging parties can take comfort that expansive, trial-like interventions are unlikely to survive appellate scrutiny.

The Competition Tribunal retains the power to seek additional evidence through its own investigative channels rather than allowing competitors to effectively litigate the merger.

Key Takeaways

• Evidence threshold: Intervention requires concrete, verifiable input, not conjecture or commercial rivalry.
• Efficiency first: The CAC prioritised speed and fairness in merger adjudication, discouraging interventions that unnecessarily delay outcomes.
• Defined boundaries: Intervenors may support the process but cannot assume the Commission’s role or demand unrestricted access to confidential material.

Professional Insight

The CAC’s decision underscores the need for strategic foresight in merger control proceedings. Competition law attorneys representing merging parties should be prepared to challenge overly broad intervention attempts, while potential intervenors must frame their applications around specific, evidence-based contributions.

For clients navigating merger approvals or intervention disputes, experienced competition counsel can ensure compliance with the evolving procedural standards set by the Competition Appeal Court of South Africa.