a tripartite report - Unctad

ZIMBABWE
The Commission in 2006 whilst dealing with the
acquisition of Blanket Mine (Private) Limited by
Caledonia Holdings (Africa) had to deal with the
Commission received and agreed with a written
legal opinion from the well known Zimbabwean
lawyer, Advocate Adrian P. De Bourbon SC, now
practising in South Africa, to the effect that the
merger are “of a competitor, supplier, customer or
other person”. These words cannot be read simply
as though Parliament had used the words “any
person”. There can be no doubt that Parliament intended
to create a genus (a class of things which
have common characteristics) which would be applicable
in relation to the concept of merger. The
presence of a distinct genus or category calls for
the invoking of the application of the rule of interpreting
statutes known as the Ejusdem generis rule.
Ejusdem generis is a Latin term that means “of the
same kind”. The rule holds that where a law lists
to them in general, the general statements only
cally
listed. For example: if a law refers to automobiles,
trucks, tractors, motorcycles and other motor-powered
vehicles, “vehicles” would not include
airplanes, since the list was of land-based transportation.
The rule is that where particular words
have a common characteristic (i.e. of a class) any
general words that follow should be construed as
referring generally to that class; no wider construction
should be afforded. This therefore means that
be interpreted to refer to the class of “competitors,
merger, Parliament intended to create a category
of persons whose economic activities within Zimbabwe
needed to be examined to ensure that the
principles relating to fair competition enunciated in
the legislation were met. In other words, the need
to notify a merger is because the policy behind the
legislation is to bring about a situation whereby
the Commission can look at the merger between
competitors, suppliers, customers and similar persons
to determine whether or not the merger will
affect the balance of economic activity within Zim-
plied
by the Commission therefore does not cover
conglomerate mergers, unless such mergers have
horizontal and/or vertical elements.
183
It also does not include joint ventures resulting in
the general provision under Section 2 (c) cannot
for such mergers. This shortcoming should also
forcement
on mergers and acquisitions aspect in
Zimbabwe.
At inception in 1998, Zimbabwe had a voluntary
ed
from closing a merger deal and implementing
the transaction in advance of having applied for
and received merger clearance from the Commission.
Today, Section 34 of the ZCA provides for a pre-
Competition Amendment Act of 2001) which
requires mergers with values at or above a pre-
combined annual turnover or assets in Zimbabwe
of the merging parties).
ZCA also provides for the payment of a merger
bined
annual turnover or combined value of assets
in Zimbabwe of the merging parties). Stakeholders
have expressed grievance that the manner with
which the fees is calculated, particularly on holding
companies, involves assets of unrelated business,
hence attracting exorbitant fees. As a result of that
the proposed transaction had to be restructured.
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Furthermore, the provision does not clearly provide
which among the merging parties (Acquiring or
the intended merger transaction. Although a minor
and lead to better compliance of the ZCA.
Reading of Section 34A of the ZCA together with
Statutory Instrument 270 of 2002 particularly Sec-
posed
merger, in terms of subsection (1) of section
34A of the Act, the Commission shall, as soon as
practicable, consider the proposed merger”. These
provisions show that the ZCA does not provide for
binding deadline for the CTC to assess a merger.
ZIMBABWE