Mergers Week Day 5: Merger Determination After Assessment

According to section 49(4), subject to subsection (5), the Authority shall consider and make a determination in relation to a notified merger-

a)   Within 30 days after the date on which the Authority receives that notification; or
b)   Where the Authority is of the opinion that the 30 days should be extended due to the complexity of the issues involved or any other reason, it may, before expiry of that period, by notice in writing to the enterprises involved extend by the relevant period for a further period, not exceeding 60 days, specified in the notice.

What Happens after the Authority Assesses a Proposed Merger?

In terms of section 53 (1), in making a determination in relation to a proposed merger, the Authority may —

a)   Give approval for the implementation of the merger without conditions or subject to such conditions as it considers appropriate; or
b)    Decline to give approval to the implementation of the merger to the extent that it relates to a market in Botswana.

(2) Where conditional approval is given, the Authority’s determination may contain such directions as the Authority considers necessary, reasonable and practicable to remedy, mitigate or prevent any adverse effects of the merger.

(3) Directions issued in terms of subsection (2), may inter alia, and require an enterprise or enterprises to—

a)    Divest such assets as are specified in the direction within a period also so specified; or
b)   To adopt, or desist from, such conduct in relation to prices, as is specified in the direction, before the merger can be completed or implemented.

(4) The Authority shall —

a)    Give notice of the determination made by the Authority, and of any directions in relation to a merger;
        (i) To the parties involved in the merger, in writing, and
        (ii) By notice in the Gazette, and

b)    Issue written reasons for its determination —
       (i) If it prohibits or conditionally approves a merger, or
       (ii) If it is requested to do so by any person.