In more detail
On 31 October 2025, the South African Competition Commission (“Commission”) published draft guidelines on the pre-merger filing consultation process, aiming to enhance the efficiency and predictability of merger assessments under the Competition Act No. 89 of 1998 (“Competition Act”). The draft guidelines, which are open for public comment until 24 November 2025, propose a voluntary, informal and non-binding consultation mechanism between merging parties and the Commission prior to formal merger filings.
The Commission has undertaken a review of its merger filing and review processes, identifying opportunities to improve efficiency and reduce regulatory costs. The draft guidelines address several areas where delays commonly occur, such include when remedies are appropriate but not tendered upfront, when complex competition issues require detailed assessments, when public interest concerns arise, and when transaction advisors or business rescue practitioners do not fully account for merger control requirements in selecting purchasers.
To address these challenges, the Commission has established a voluntary, informal, non-binding, and confidential pre-merger filing consultation process. This process is designed to facilitate efficient and timely assessment of merger transactions once they are formally filed. The consultation process allows merger parties or sellers to discuss potential issues with the Commission before formal notification and aims to provide potential merger parties with guidance on substantive and procedural issues, enabling them to prepare more robust submissions and potentially avoid unnecessary regulatory delays.
The pre-merger filing consultation process is voluntary and may be initiated by either or both merger parties or the seller. The process is informal and intended to foster open and frank discussions, which may take place in person, by teleconference, or other digital means. All discussions are confidential, and any guidance provided is non-binding. The Commission will not convene consultations regarding hypothetical or academic queries, and requests must include sufficient detail about the proposed transaction. Generally, only one consultation per query is permitted, unless the Commission determines that further engagement is necessary.
To initiate a consultation, parties must submit a formal written request to the Commission, including documentation outlining the proposed transaction, details of their competition assessment, specific queries, information on attendees, and availability for consultation within the following 10 business days. Requests are tracked by a query number, and consultations are scheduled at mutually convenient times. The Commission may request further information or schedule additional consultations at its discretion, and consultations lapse upon formal filing of the merger.
The draft guidelines identify specific circumstances suitable for pre-merger filing consultation, including merger transactions requiring remedies, mergers raising complex competition issues, mergers raising public interest concerns, and mergers arising from business rescue or financial distress. In cases where remedies are appropriate, parties may proactively tender conditions and consult the Commission on their appropriateness. Complex competition issues include mergers between competitors with high combined market shares, mergers to monopoly, transactions involving unique assets and vertical foreclosure risks. Public interest concerns focus on employment and ownership issues, particularly the spread of ownership to historically disadvantaged persons and workers, and potential retrenchments. Early engagement is encouraged for mergers arising from business rescue or financial distress, especially where the failing firm defense is raised.
The publication of these Guidelines represents a significant step towards improving the efficiency and effectiveness of merger review in South Africa. By providing a structured framework for pre-merger filing consultations, the Commission seeks to reduce delays, enhance transparency, and ensure that competition and public interest concerns are addressed proactively.
These draft guidelines signal a pragmatic shift to early, problem-solving engagement that should cut cost and uncertainty in merger control. Although voluntary and non-binding, they create a clear route to surface competition and public-interest issues upfront, shape proportionate remedies and shorten review timelines. Merging parties should act now to map their pipeline, prepare concise competition analyses and data packs, consider employment and Historically Disadvantaged Persons (HDP) ownership undertakings and line up any failing firm evidence where relevant. Written comments by 24 November 2025 are a chance to refine the regime before it takes effect on publication in the Government Gazette.
