Johannesburg - Phindi Kema, the first black businesswoman to be a racehorse breeder, and her company, Africa Race Group, have applied to the Competition Appeal Court (CAC) for leave to appeal its ruling that they have no legal standing to challenge a merger in the horseracing industry.
In their papers, they argue the ruling violates their rights under the constitution and they want to appeal to the Constitutional Court. The matter is to be heard next Friday.
The merger involves the Thoroughbred Horseracing Trust, Kenilworth Racing and Gold Circle. The merger indirectly involves the JSE-listed Phumelela Gaming and Leisure, which runs a majority of the horseracing and betting activities in South Africa.
Phumelela owns the rights to horseracing in all but two provinces. It would be a service provider to the Kenilworth Race Course. Gold Circle Western Cape owns the racecourse.
Kema and Africa Race Group argue the Competition Tribunal’s decision to authorise the merger unfairly gives Phumelela 90 percent of the country’s racing market.
The appellants say, in fact, Gold Circle KZN, with its 10 percent market share, is in a vulnerable position as a result of this decision. “This means there is no chance for a newcomer to participate in this important business sector,” the application says.
The Thoroughbred Horseracing Trust is a 35.6 percent shareholder in Phumelela.
The merger was disallowed by the commission, which agreed with Kema and Africa Race Group, that it would impede competition in the horseracing industry.
On appeal to the tribunal, the merger was allowed. Kema and Africa Race Group appealed the decision to the CAC.
CAC Judge President Dennis Davis held on September 13 that they had no standing in law to appeal against the decision.
They were neither a party to the merger nor a participant in the proceedings at the tribunal.
In the papers filed by Kema and Africa Race Group, they raise certain issues regarding the judgment, including that it:
- Constitutes an infringement of Kema’s constitutional rights;
- Was made as a result of irregular and unfair competition procedure;
- Was flawed as it prevents Kema and Africa Race Group from appealing a decision that affects them directly;
- Failed to recognise Kema’s and Africa Race Group’s interest in the entire matter even though they were the sole objectors to the merger, as recognised by the commission; and
- Denies Kema access to justice and ignores her rights guaranteed by the constitution, including the right to freedom of trade and occupation.