Revisiting the Burger King prohibition: [Unintended] Consequences & [Possible] Reconsideration?

By: Joshua Eveleigh (African Antitrust)

On the 1 June 2021, the South African Competition Commission (SACC) released its media statement announcing the prohibition of ECP Africa’s proposed acquisition of Burger King (South Africa) and Grand Foods Meat Plant Pty (Ltd) from Grand Parade Investments.   AAT published a note on this precedent-setting decision here.

Despite finding that the acquisition would not have any likely effect of substantially lessening or preventing competition, the transaction was prohibited as it would result in the merged entity having no ownership by historically disadvantaged persons (HDPs) and workers. In its media statement, the SACC states that both Burger King SA and Grand Foods Meat Plant form part of an empowering entity in which HDP’s have 68% ownership. This ownership stake would decrease to 0% if the transaction were to be approved. In this regard, Tembinkosi Bonakele, chairperson of the SACC, states:

“You had an entity that had quite an impressive transformation profile, and all of that was going to disappear at the stroke of a pen with this transaction.”

Unsurprisingly, Grand Parade Investments, as well as the general public, have responded to the SACC’s decision with discontent.

The topical concerns regarding the prohibition of the acquisition include:

1. The unintended, prejudicial impact upon black shareholders of sellers / target companies; and
2. The equally detrimental deterrence of foreign direct investment (FDI) into the Republic of South Africa….

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