Sibanye files court papers to oppose application to halt R5.2bn Lonmin merger

2nd August 2019 By: African News Agency

JOHANNESBURG – Sibanye-Stillwater on Thursday filed court papers to oppose an application by a Rustenburg community to halt Sibanye's R5.2-billion acquisition of platinum mining company, Lonmin. 

Last month, the Greater Lonmin Community (GLC) approached the Constitutional Court seeking leave to appeal and set aside the acquisition. 

The GLC is a not-for-profit organisation representing various affected communities of Rustenburg, such as Marikana, Mooinooi, Majakeng, Tornado, Nkaneng, and Bapo ba Mogale.

The GLC is seeking the court to declare section 17 read together with section 13 (a) of the Competition Act unconstitutional and declare the merger of Sibanye and Lonmin irregular. 

It argues that the merger was approved without the Department of Mineral Resources (DMR) having approved a social labour plan (SLP) on a large merger.

In May, the Competition Appeals Court (CAC) upheld the Competition Tribunal's decision of November 21, 2018 to approve Sibanye's offer to acquire Lonmin and thus dismissed the appeal by the Association of Mineworkers and Construction Union (Amcu).

The GLC filed a notice of motion for leave to appeal the CAC ruling and an application for condonation, arguing that they had missed the deadline to file papers for leave to appeal due to a failure to raise funds for legal fees after the merger became effective on June 10.

The respondents in the matter were listed as the Competition Tribunal, Sibanye, Lonmin, Mining Forum of SA, an NGO formed by women in Marikana Sikhala Sonke, the Competition Commission and the minister of mineral resources and energy.

Richard Steward, Sibanye executive vice-president, said in an affidavit that the GLC's application was irregular, incompetent and lacking in merit for several reasons.

For instance, said Steward, the GLC had failed to ask the CAC to find that section 17 and 13(a) of the Competition Act were unconstitutional but now wanted the ConCourt to make a determination when no case had been made for direct access. 

Steward further argued that GLC's leave to appeal against the CAC judgment did not raise a constitutional issue and that the argument made about the social labour plan had no relation to the merger or the Competition Act as SLPs are governed by the DMR.

Steward said Lonmin had submitted its revised second SLP to the DMR in January 2018 and it was approved three months later - after the DMR had issued it with a notice to address certain aspects of the plan. He said a third SLP that would be effective from 2019 to 2024 was yet to be approved. 

"The GLC has no reasonable prospect of success when it comes to overturning the CAC's decision," Steward said.

"The GLC has not adequately explained its three months delay in bringing this application. If its delay were to be condoned, it would be highly prejudicial to Sibanye and Lonmin, and to merger regulation in general, since the merger has been implemented and could not now be undone." 

As a result, Sibanye and Lonmin are asking for an order dismissing the GLC's application for condonation, and an order dismissing the GLC's application for leave to appeal, both with costs, including the costs of two counsel.

The Competition Commission was not immediately available for comment, but when GLC filed court papers, spokesperson Sipho Ngwema said the commission had received the notice and was studying it. 

"Thus, we haven't taken a decision with regard to how we will approach the matter," Ngwema had said.