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The application before the Competition Tribunal was launched in terms of section 53(1)(c)(v) of the Competition Act No 89 of 1998 wherein the Act allows for "any other person whom the Tribunal recognised as a participant to "participate in a hearing, in person or through a representative, and may put questions to witnesses and inspect any books, documents or items presented at the hearing".

Michal Johnson, associate at Eversheds commented:

“We brought this matter before the Competition Tribunal on behalf of Biowatch South Africa. They were seeking to intervene in the merger, so that Biowatch could make submissions regarding the public interest element of the merger as governed by section 12A(3) of the Competition Act.

"In terms of the Competition Act, consideration has to be given to public interest aspects of any merger, such as impact of the merger on a particular industrial region or sector; impact of the merger on labour and employment; impact of the merger on the ability of new entrants and the previously disadvantaged to enter the market; and impact of the merger on the ability of national industries to compete in international markets.

“The merger was before the Competition Commission last year with the commission ruling that the merger could not be approved. While the Competition Commission requested Biowatch to make submissions to it in the proceedings, and portions of their submissions were incorporated into their ruling, the Commission elected not to address any public interest aspects of the merger in the proceedings before the Competition Tribunal. Hence Biowatch applied to be admitted as an intervening party in terms of the Competition Act.

“We appeared before the Tribunal on 12 August 2011 and prior to which numerous affidavits and witness statement were filed. On Friday, 19 August 2011 the Competition Tribunal ruled in Biowatch’s favour. This is a landmark ruling in that, to my knowledge, it is the first time that an NGO has been granted leave to make submissions to the Competition Tribunal, cross examine and interrogate witnesses and generally participate in the proceedings as a party thereto.”