Why the revised enforcement framework demands the attention of corporate counsel
A Firm Post by Primerio International — 14 October 2026
For companies that have obtained conditional merger approval in South Africa, the regulatory consequences of a transaction do not necessarily end when the deal closes. Employment undertakings, capital investment commitments, local procurement obligations and other public-interest conditions can continue to bind merging parties for several years.
A significant amendment to South Africa’s merger enforcement framework now places renewed emphasis on how these obligations are monitored, investigated and enforced.
On 13 October 2026, the Minister of Trade, Industry and Competition published Government Notice 8005 in Government Gazette No. 55541, replacing Rule 39 of the Rules for the Conduct of Proceedings in the Competition Commission and introducing a revised Form CC19.
The amendment restructures the process for addressing alleged breaches of merger approval conditions.
Although the revised framework provides greater procedural structure, it also raises important questions about the respective evidentiary obligations of the Competition Commission and merging parties, particularly in light of the Constitutional Court’s decision in Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission and Another [2024] ZACC 3.
For corporate counsel, the implications extend beyond competition law. They concern transaction governance, regulatory risk management, internal reporting and the preservation of evidence long after a merger has been implemented.
A new approach to enforcing merger conditions
Under the previous Rule 39, the Commission could issue a Notice of Apparent Breach where it appeared that a firm had failed to comply with a condition attached to merger approval.
The affected firm could submit a remedial plan or approach the Competition Tribunal to review the notice on the basis that it had substantially complied with its obligations.
The revised Rule 39 introduces a different sequence.
The Commission may investigate a suspected breach at any time. Where its investigation results in a finding of non-compliance, it may issue a Notice Requesting Compliance.
The firm must then be afforded a reasonable period of at least ten business days to comply with the relevant condition or submit a remedial plan.
Where the matter remains unresolved, the Commission may approach the Competition Tribunal for an order confirming the breach and compelling compliance. The firm is expressly entitled to oppose that application.
Importantly, the revised procedure requires a further step before the Commission may pursue the specified statutory mechanisms relating to revocation, administrative penalties or other enforcement consequences. The firm must first fail to comply with the Tribunal’s order compelling compliance.
This provides an opportunity to remedy non-compliance before those more serious consequences arise.
The amendment therefore does not simply strengthen enforcement powers. It also formalises the process through which alleged breaches must be established and addressed.
The significance of the Constitutional Court’s Coca-Cola judgment
The revised Rule 39 is particularly noteworthy when considered against the Constitutional Court’s April 2024 judgment in Coca-Cola Beverages Africa.
That dispute arose from allegations that retrenchments undertaken following a merger breached employment-related conditions imposed as part of the merger approval.
The Commission issued a Notice of Apparent Breach, which Coca-Cola challenged before the Competition Tribunal.
The Constitutional Court subsequently considered the nature of the review available under the former Rule 39.
The Court confirmed that the Tribunal’s task was to determine objectively whether the firm had substantially complied with its merger conditions. The inquiry was not confined to whether the Commission had acted reasonably in suspecting a breach.
The Court also considered the causal connection required between the merger and the retrenchments, rejecting an approach that treated an insufficiently direct connection as adequate to establish a breach.
The judgment was important because it clarified both the substantive interpretation of merger conditions and the procedural protections available to merging parties.
The revised Rule 39 removes the express substantial-compliance review mechanism considered by the Constitutional Court.
That does not necessarily mean that substantial compliance has ceased to be relevant to the interpretation or enforcement of merger conditions.
However, the procedural route through which a firm may contest an allegation of non-compliance has changed.
The significance of this distinction should not be underestimated.
Does the revised rule shift the burden of proof?
One of the most important provisions is Rule 39(6), which requires a firm alleging compliance to place evidence demonstrating that compliance before the Tribunal.
At first glance, this appears to strengthen the Commission’s position.
However, the legal position requires careful consideration.
Under the former Rule 39, the Constitutional Court recognised that a firm invoking the special statutory review procedure bore the onus of establishing substantial compliance.
The revised rule therefore does not introduce an evidentiary obligation where none previously existed.
The more significant question is how that obligation operates within the new procedural framework.
Under the revised rule, it is the Commission that approaches the Tribunal seeking an order compelling compliance. The firm may oppose the application and must place evidence of compliance before the Tribunal if it relies on that contention.
Whether Rule 39(6) merely imposes an evidentiary obligation on the firm or goes further by affecting the ultimate legal burden of proof, is an important question of interpretation.
There is a distinction between requiring a company to produce evidence within its possession and requiring it to disprove an allegation of non-compliance.
That distinction may become particularly important where the alleged breach depends on disputed facts, complex economic circumstances or the interpretation of broadly framed public-interest conditions.
The interaction between Rule 39(6), the Competition Act and established principles of procedural fairness may therefore become an area of future litigation.
Why corporate counsel should be paying attention
The practical significance of the amendment lies in the increasing importance of post-merger compliance.
South African merger approvals frequently contain obligations that extend beyond conventional competition concerns.
These may include commitments to preserve employment, maintain production capacity, invest in domestic operations, support historically disadvantaged suppliers, establish employee ownership arrangements or meet specified transformation objectives.
Such conditions may remain operative for several years.
During that period, businesses may experience substantial changes in market conditions, operational requirements, corporate structures or financial circumstances.
For example, a company may undertake a restructuring several years after completing an acquisition. If the merger approval contained employment-related conditions, the Commission may investigate whether the restructuring breached those commitments.
The company may contend that its decisions arose from independent commercial circumstances rather than the merger.
In such a dispute, contemporaneous evidence of the reasons for the restructuring, the company’s decision-making processes and the applicable merger conditions may prove decisive.
Similar difficulties can arise in relation to investment commitments where expenditure is delayed, procurement undertakings where suppliers become unavailable, or ownership conditions affected by subsequent corporate reorganisations.
The central lesson is that compliance must be demonstrable, not merely assumed.
Five practical priorities for in-house legal teams
- Review outstanding merger conditions
Corporate counsel should identify all merger approvals containing obligations that remain operative, including those arising from transactions completed several years ago.
Each condition should be reviewed against its precise wording, applicable deadlines, reporting requirements and any permitted exceptions.
- Establish clear internal accountability
Responsibility for merger-condition compliance is often distributed across human resources, finance, procurement, operations and corporate affairs.
The legal function should ensure that each obligation has an accountable business owner and that there is a defined process for escalating potential non-compliance.
- Preserve contemporaneous evidence
Companies should maintain organised records demonstrating compliance with each condition.
Depending on the nature of the undertaking, these may include employment records, board approvals, capital expenditure reports, procurement data, ownership documentation and correspondence with regulators.
A general assurance from management that the company has complied may be insufficient when a particular obligation is challenged.
- Assess the implications of subsequent corporate decisions
Restructurings, retrenchments, changes in suppliers, disposals of assets and revisions to investment programmes should be assessed against outstanding merger conditions before implementation.
Legal teams should be involved early enough to identify regulatory implications and, where necessary, consider engagement with the Commission.
- Integrate post-merger compliance into transaction planning
For future transactions, the parties should carefully consider the drafting, monitoring and implementation of proposed merger conditions.
Conditions should, wherever possible, be clear, objectively measurable and capable of being monitored.
Transaction documentation should also allocate responsibility for ongoing compliance, reporting and record retention following closing.
Has the balance shifted in favour of the Commission?
The revised Rule 39 can be viewed as part of a broader emphasis on ensuring that commitments made during merger proceedings translate into measurable outcomes after implementation.
From an enforcement perspective, it creates a structured process through which the Commission may investigate suspected breaches, require remedial action and ultimately seek Tribunal intervention.
At the same time, it introduces procedural safeguards, including the requirement for a finding of breach before a compliance notice is issued and the opportunity to contest allegations before the Tribunal.
The removal of the express substantial-compliance review procedure and the wording of Rule 39(6) nevertheless raise questions about the balance between regulatory enforcement and the rights of merging parties.
The precise consequences will depend on how the Commission applies the revised rule and how the Tribunal interprets its provisions.
For corporate counsel, however, one conclusion is already clear.
Merger approval should no longer be regarded as the conclusion of a transaction’s competition-law risk. It may mark the beginning of a prolonged period of regulatory accountability.
Businesses that incorporate merger-condition compliance into their governance frameworks, maintain reliable supporting evidence and anticipate regulatory scrutiny will be better positioned to manage the risks associated with the revised enforcement regime.
About Primerio International
Primerio International is a competition and regulatory law firm advising businesses on complex merger control matters, public-interest conditions, competition investigations, regulatory compliance and competition litigation.
Our competition law team assists clients in navigating South Africa’s evolving merger control framework, including the negotiation, interpretation and enforcement of merger conditions.
Sources
- Competition Act 89 of 1998 — Government Gazette No. 55541, Government Notice 8005, 13 October 2026.
https://www.gov.za/sites/default/files/gcis_document/202610/55541gon8005.pdf
- Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission and Another [2024] ZACC 3, Constitutional Court, 17 April 2024.
