In papers filed by Khanyile MB Attorneys Inc last week, the GLC argued that the Competition Tribunal erred in approving the merger with conditions, without proper investigation of Lonmin’s social labour plan (SLP), which was in the process of being amended at the time.
The group said the Competition Commission approved the merger without a proper investigation and all documents needed for approval submitted as per section 11 of the Mineral Petroleum Resources Development Act.
The GLC is a not-for-profit organisation representing affected communities of Rustenburg, such as Marikana, Mooinooi, Majakeng, Tornado, Nkaneng and Bapo ba Mogale.
Sibanye’s offer to acquire the entity and to-be-issued ordinary share capital of Lonmin, subject to certain specific conditions, for about R5.2billion, became effective in June after 18 months of talks and litigation.
In May, the Competition Appeals Court (CAC) upheld the Competition Tribunal’s November decision to approve Sibanye’s offer to acquire Lonmin and thus dismissed the appeal by Association of Mineworkers and Construction Union (Amcu).
The GLC wants the court to declare section 17 of the Competition Act unconstitutional and to declare the merger of Sibanye and Lonmin irregular.
It contends that the merger was approved without the Department of Mineral Resources having approved a social labour plan (SLP) on a large merger.
The GLC also argues that the CAC judgment was inconsistent with international law on the right of the third party which is directly affected by the merger conditions to appeal a merger decision.
The organisation has filed a notice of motion for leave to appeal and an application for condonation, arguing that they had missed the deadline to file papers for leave to appeal due to the fact that raising legal fees took time as the GLC is a self-funded community-based organisation.
The respondents in the matter have been listed as the Competition Tribunal, Sibanye, Lonmin, Mining Forum of SA, an NGO formed by women in Marikana called Sikhala Sonke, the Competition Commission and Mineral Resources and Energy Minister Gwede Mantashe.
If the apex court hears the matter and grants a declaratory order, it could throw a spanner in the works for Sibanye and Lonmin after having worked so insistently to get regulatory approvals and see the deal through.
Sibanye has declined to comment on the matter, with spokesperson James Wellsted, saying: “No comment from our side.”