The 2023 DealMakers AFRICA Annual issue is out.
Criteria changes are coming for West Africa deal and transaction tables... watch this space!
DealMakers AFRICA Annual 2023 issue
M&A Regional Analysis | PE Regional Analysis | Biggest M&A Deals 2023
Individual DealMaker of the Year 2023 | West Africa
Deal of the Year 2023 | West Africa
Private Equity Deal of the Year 2023 | West Africa
Deal of the Year 2023 | East Africa
Private Equity Deal of the Year 2023 | East Africa
THORTS
Energy and materials sector to boost M&A
by Seddik Al Fihri | Boston Consulting Group, Casablanca
Benefits of due diligence in M&A agreements
by Thandiwe Nhlapho and Roxanna Valayathum | Cliffe Dekker Hofmeyr
A new wave of consolidations from Africa?
by Khaya Hlophe-Kunene and Johann Piek | PSG Capital
Navigating the crucial turning point for M&A
by Tholinhlanhla Gcabashe and Cathy Truter | Bowmans
Competition law develops in Africa
by Lesley Morphet and Nolukhanyo Mpisane | Fasken
Unlocking Africa's economic potential
by Oluseyi Kumapayi | African Subsidiaries, Access Bank Plc
CONTENTS
FROM THE EDITOR'S DESK
Investing in Africa has become a mainstream necessity; but increasingly, investors have had to work harder to find returns. With ongoing economic headwinds and the increased
cost of capital, infrastructure deficits, regulatory complexities and geopolitical risks, investors have become progressively cautious when it comes to which deals they do, and the terms of such deals. Increased caution and risk aversion have led to deals taking longer to close, as due diligence and negotiations have become protracted.
This sentiment is reflected in the regional M&A analysis by DealMakers AFRICA for 2023 (pg 4). The value of deal activity recorded was US$11,2 billion, a 36% decline on the previous year, and 28% down on the pre-COVID numbers of 2019. East Africa edged its way back to the top to claim the most activity per region, recording 144 deals, followed by West Africa (136 deals) and North Africa (107 deals).
The power houses of their regions, Kenya and Nigeria recorded the most deals at 95 and 82 respectively. In terms of deal value, it was Southern Africa which stood out, and more specifically, Zimbabwe, with total deals valued at US$5,8 billion, reflecting the size of several mining transactions announced during the
year.
Private equity investment, which for some years now has provided the momentum for M&A activity growth on the continent, was subdued in 2023. This is not surprising, given the higher interest rates and the fact that private equity firms rely on borrowing to partfund deals. However, having said this, the analysis shows that, as a percentage of the total deal value, private equity transactions continue to increase and have, for the past few years, constituted 50% of the deal flow.
While recessionary fears haven’t vanished, they have lessened, supported by the recent forecast by the African Development Bank in its latest Macroeconomic Performance Outlook, which projects that Africa’s GDP will grow 3.8% in 2024, and 4.2% in 2025. This feeds into the narrative that consumption will be the driver of investor activity on the continent, with sectors most likely to attract sizeable M&A activity being energy and natural resources, telecommunications and technology, consumer goods and retail, and infrastructure development. To this point, of the top 10 deals by value for 2023 (pg 5), eight involved targets in the energy or resources sectors, and these were predominantly located in Southern Africa.
This year, we are thrilled to celebrate the 2023 achievements of the M&A industry in Lagos for the first time. The deal information on which the awards are based, if they are to be credible, need to be researched and verified – a mammoth undertaking. My colleague, Vanessa Aitken is responsible for this, and I am most grateful for her time, patience and passion, which is to be admired.
THORTS
Energy and materials sectors to spur Africa M&A market’s resurgence
Seddik El Fihri
Africa’s M&A market has experienced significant turbulence amid post-pandemic economic and geopolitical uncertainty. The renewable energy and material sectors have been bright spots, however, and seem poised to lead the market’s recovery.
The market’s downturn can be traced to the second half of 2022, when the region’s total deal value fell to US$6 billion — a sharp 62% decline compared to the first half of the year. For context, the market surged to an all-time high in 2021 – with deal values exceeding $44 billion – signalling that dealmakers were playing catchup after the initial shock of the COVID-19 pandemic had passed. The merger of the Angolan oil and gas businesses of BP and Eni contributed to this dealmaking peak.
Seddik El Fihri
The post-pandemic surge was followed by a reversion to more normal levels of M&A activity. Deal value in the first half of 2023 was $4 billion — a 73% drop from the first half of 2022, versus a 45% decline globally. However, the steep year-on-year decline masks the emergence of an active M&A market over the past decade, which should promote continued strength.
Several sectors in Africa have bucked the recent downward trend:
• Renewable Energy. Seeking greener and more secure energy sources, investors turned their attention to Africa’s renewable energy sector. An example is the pending acquisition of BTE Renewables for more than $1 billion by a consortium formed by Meridiam and Engie. In 2022, the renewable energy sector attracted a record-breaking $118 billion in foreign direct investment (FDI), representing more than 60% of total FDI inflows to Africa. The leading investors in the sector are the UAE and India, followed by the UK and France.
• Materials. Rising concerns over access to raw materials have spurred M&A in Africa’s materials sector over the past two years. So far, the largest deals in 2023 have occurred in the materials sector. China Natural Resources has agreed to acquire Williams Minerals, a Zimbabwe-based lithium mine operator, for almost $600 million. Lilium Mining acquired a 90% stake in the non-core gold mines of Endeavour Mining in Burkina Faso for $300 million.
• Health Care. The pandemic underscored the need for African countries to develop the skills and capacity to independently address the health challenges of their growing populations. This realisation has attracted investors to the health care sector. A standout example is Manta Bidco’s acquisition of Mediclinic International for $2.5 billion.
• Technology. The emergence of a technology ecosystem in Africa is a catalyst for transactions and fundraising in many countries. Among others, Kenya – where tech deal value spiked in 2022 – is very active in technology-driven transactions.
In 2022 and the first half of 2023, the most active countries in the region, in terms of M&A volume and value, were South Africa and Egypt, followed by Nigeria and Kenya.
Looking ahead, we see a mix of challenges and opportunities. Persistent global instability may dampen investors’ enthusiasm, leading to heightened risk aversion, especially toward investment opportunities in a continent with an extremely complex business landscape. An emerging movement toward increased protectionism among African countries could impede international investment flows to certain markets; conversely, however, it might spur transactions among African entities. The growing number of African-led acquisitions and the rise of Africa-focused sovereign funds, private equity investors and family offices underscore the potential for more locally generated M&A activity. At the same time, global players from China, India and the Middle East are steadily expanding their presence in Africa.
Several other trends and considerations are noteworthy:
• Energy Transition and Infrastructure. Prominent investors may begin consolidating market shares and leveraging their regional platforms to expand their reach into the developing continent. Governments and investors recognise the need to close notable gaps in the infrastructure and energy sectors. As a result, we expect to see substantial investments in electrical grids, natural gas, renewables and green hydrogen, among other areas.
• ESG. As in other regions, environmental, social and governance (ESG) factors have become key considerations in African M&A transactions in recent years. We expect this trend to persist in the long run, despite recent scepticism from some global investors about the impact of ESG constraints on companies.
• Sourcing. Supply chain considerations will promote M&A investments as companies’ sourcing strategies emphasise proximity and security. Thanks to its abundant natural resources and young population, Africa is well positioned to serve as a sourcing hub for neighbouring markets. Notably, the presence of good infrastructure, attractive locations and favourable legal frameworks in Morocco, South Africa and Egypt give those nations an edge over other African countries. Consolidation among logistics players to better serve African hinterlands, known as “corridor integration”, will also lead to new deals.
• Capital Availability. Around the world, private equity firms and family offices are flush with cash available for deployment. As the right opportunities emerge, the accumulated dry powder of financial sponsors, including African investors, will boost M&A activity. Although investors’ risk aversion has depressed valuations, we may see a tipping point at which low valuations entice a flood of capital. If that occurs, however, the capital influx may predominantly benefit regional players over multinational companies operating in Africa, as some of the latter are reducing their regional investment and exposure.
Against this backdrop, the energy and materials sectors, along with the broader industrial sector, will likely maintain their momentum and spur the M&A market’s resurgence. Some companies in these sectors have robust balance sheets and available cash, and they also stand to benefit from higher commodity prices. Their strong positions might lead them to recalibrate their diversification strategies in search of growth opportunities. Major industry players are likely to explore consolidating their market positions by leveraging regional platforms to expand their African presence.
El Fihri is Managing Director and Partner | Boston Consulting Group, Casablanca
The benefits of due diligence in drafting sale and purchase agreements for M&A deals
THORTS
Thandiwe Nhlapho and Roxanna Valayathum
In mergers and acquisitions (M&A), acquiring a business or an asset without conducting a due diligence investigation (DDI) substantially increases the risk, particularly to the acquirer. Not only is the DDI important to understand the nature of the business, its affairs, and its assets and liabilities, conducting a DDI on the company to be acquired (Target Company) may inform the negotiation and/or drafting of the sale and purchase agreement for shares or business (Sale Agreement), particularly in relation to the purchase consideration, suspensive conditions, warranties and indemnities, and post-closing obligations.
An M&A transaction often requires a financial, legal and tax DDI, typically to identify any red flags which could be deal breakers or diminish the value of the Target Company, which would impact the purchase consideration payable under the Sale Agreement. These red flags will determine whether or not the acquirer continues to negotiate the transaction and subsequently conclude the Sale Agreement with the owner/s of the Target Company or business (Seller/s).
Notwithstanding the red flags, the acquirer may still be interested in the transaction, provided that the risks identified can be mitigated through, among other things, (i) an adjustment to the purchase consideration; (ii) the Sale Agreement being subject to suspensive conditions, i.e. conditional on certain events taking place prior to the Sale Agreement becoming effective; (iii) warranties and indemnities being given by the Seller in favour of the acquirer; and (iv) post-closing obligations of the Target Company.
This article will provide an overview of the way in which a legal DDI will highlight the aspects which are vital to protect the acquirer’s interests in a Sale Agreement.
Thandiwe Nhlapho
Roxanna Valayathum
ADJUSTMENTS TO THE PURCHASE CONSIDERATION
The DDI may be beneficial in negotiating the purchase consideration. For example, during the DDI, a penalty payable to a regulatory authority as a result of a breach of environmental laws or the termination of a material supply agreement with preferential terms which, if replaced, may increase the overall expenses of the Target Company, may be identified. In such instance, the acquirer may wish to negotiate:
• a discount to the purchase consideration; or
• structuring the payment mechanism in the Sale Agreement in a way which mitigates the financial exposure to the acquirer,
such as:
- retaining a portion of the purchase consideration in escrow pending settlement of such penalty or conclusion of a renewal to such contract; or
- requesting a guarantee to be issued by a reputable bank or the parent company of the Seller in favour of the acquirer as a suspensive condition, pending settlement of such penalty or conclusion of a renewal to such contract.
SUSPENSIVE CONDITIONS
In order to ensure that the deficiencies identified in relation to the Target Company are dealt with prior to the implementation of the acquisition, to the extent possible, the acquirer will include certain suspensive conditions in the Sale Agreement.
For example, the DDI will reveal material agreements between the Target Company and third parties (usually lenders, customers or clients, and suppliers) in terms of which prior written approval or notification is required for the proposed transaction. For instance, the proposed transaction may trigger a change of control which requires approval of, or notification to a counterparty in the case of a sale of shares, or consent for assignment in the case of a transfer of business. Such approvals/consents and notifications ought to be included in the Sale Agreement as suspensive conditions. Similarly, it may be discovered during the review of accreditations, licences or registrations that regulatory approval from a regulator or governmental body is required prior to the implementation of the Sale Agreement.
In addition to approvals or notifications, although not always ideal for deal certainty, and especially when there is a need to close the deal expeditiously, there could be documents or information which the acquirer requires to consider which may not be available during the period of the due diligence, and these can be included in the suspensive conditions. Further, during the DDI, it may come to light that certain agreements would need to be renewed or would terminate as a result of the M&A transaction.
The renewal of, or entry into such agreements (such as a lease agreement) on terms and conditions acceptable to the acquirer may be included as a suspensive condition, so as to ensure the smooth operation of the Target Company or business post implementation of the Sale Agreement.
Where non-compliances have been identified during the DDI, the acquirer may agree for regularisation to be a suspensive condition if the Seller is not prepared to indemnify the acquirer for any claims which may occur as a result of such non-compliance. The suspensive condition will provide the Seller with the opportunity to rectify such non-compliances or irregularities prior to the M&A transaction becoming effective.
WARRANTIES AND INDEMNITIES
If the acquirer cannot ascertain certain information during its DDI, and the seller cannot provide confirmation, for example, that there is no threatened litigation against the Target Company, the acquirer may request that the Seller warrants this position. If not true or correct, the acquirer can take some comfort in bringing a claim for damages for a breach of the warranty. If the Seller has negotiated a limitation of liability, the acquirer must consider this limitation in light of the potential risk and financial magnitude posed by the risks identified, or which may potentially arise.
The acquirer may also request indemnification in the Sale Agreement against potential risks identified in the DDI. For instance, the Target Company may be involved in a legal dispute where it may or may not be successful. In another instance, statutory non-compliance may be identified in the DDI where no claim or action has been brought. If the acquirer is indemnified by the Seller, the Seller will recover its loss on a Rand-for-Rand basis when claiming under an indemnity, provided that this is permitted by the wording of the Sale Agreement.
Legally, indemnities provide benefits that warranties do not, and one may be appropriate over the other in the context of the Sale Agreement and the negotiations. However, both are important for mitigating risks identified during the DDI.
CONCLUSION
While the costs for conducting a DDI may appear to be prohibitive, such costs are a justifiable expense when considering the potential legal, financial and reputational risks associated with acquiring shares in a Target Company, or the business of a Seller, ill-informed and unprepared.
Understanding the importance of a DDI and how to utilise its findings offers a greater chance of a successful M&A transaction for all parties involved.
Nhlapho is a Senior Associate and Valayathum a Director in Corporate & Commercial | Cliffe Dekker Hofmeyr
THORTS
Is Africa poised for a new wave of consolidations?
Khaya Hlophe-Kunene and Johann Piek
Over recent years, the successive hammer blows of the COVID-19 pandemic, high inflation and rapidly rising interest rates, the Russia/Ukraine war and other outlier events wreaked havoc with many companies’ M&A ambitions, with funds earmarked for M&A having to be diverted to strengthen balance sheets and other operating priorities.
However, with the pandemic and its initial effects now (hopefully) in the rear-view mirror and the African business landscape having largely acclimatised to the “new normal”, one may, over the next few years, see consolidation, as well-capitalised companies look to grow market share or vertically integrate by acquiring the less resilient to make up for lost ground.
THIS TIME MIGHT BE DIFFERENT
African M&A activity has not been all doom and gloom since the outbreak of the pandemic. On the contrary, the African M&A market experienced a record-breaking year in 2021, with total deal value exceeding circa US$64 billion.[1] The surge likely resulted from the deployment, after the initial pandemic effects had passed, of funds previously allocated for M&A. Unfortunately, the African M&A market has been relatively subdued since then, amounting only to approximately $26 billion in 2022 and $10 billion in 2023.[2]
Nevertheless, 2024 might prove to be different (barring any significant new outlier events occurring). Unlike in 2022, the effects of the above outlier events have now largely been priced in.
Khaya Hlophe-Kunene
Johann Piek
Interest rates and inflationary pressure appear to have stabilised. Well capitalised companies have also had a two-year window to re-evaluate their M&A action plans and build up their M&A war chests, while less resilient companies became more vulnerable to potential take-overs.
Furthermore, the political certainty gained following the conclusion of elections in several “powerhouse” countries this year could also help break the current holding pattern in M&A. While a modest recovery is expected by some in 2024,[3] the M&A activity may surprise us and exceed expectations.
BENEFITS FOR AFRICA
Successful consolidations possess significant transformational power. The benefits of such consolidations are not only enjoyed by the firms in question, but also by other stakeholders and role players in the value chain. Examples of “flow-through” benefits enjoyed by such parties include, inter alia –
• Re-establishing competition
Where a region or sector already has a dominant player, a consolidation between smaller players could potentially “even the playing field” by leveraging synergies and benefits of scale, resulting in cost- and selection benefits for consumers, as well as business opportunities for other service providers in the region or sector. By contrast, it may be more difficult for dominant players to participate in consolidation through M&A, given competition law restrictions.
• Cheaper financing options
Generally, consolidated businesses – which have more assets to use as collateral – can access better financing terms, compared with their smaller peers. The transaction and borrowing costs saved in this regard could be “paid over” to shareholders in the form of dividends, or be utilised to further grow the business (which could, inter alia, lead to more employment opportunities).
• Diversification benefits
Consolidations could enable the subject firm to be better diversified, whether from a product range, sectoral and/or geography perspective. This helps companies better mitigate risk and, in turn, become more resilient, resulting in greater certainty for all stakeholders in the value chain.
SECTOR FOCUS
Despite the somewhat sluggish African M&A activity over the 2022 and 2023 period, certain sectors, such as those outlined below, continued to enjoy positive transaction flow. These sectors could lead the potential consolidation surge.
• Healthcare
The African healthcare sector’s resilience was apparent from the number of notable transactions during the period. Particularly robust were Pharmaceuticals and Life Sciences, along with Healthcare Services, which helped propel the sector’s dynamism. Noteworthy transactions included Mediclinic’s “take private” and Laprophan Laboratoires SA’s acquisition of SAHAM Pharma.
• Energy and infrastructure
During this period, M&A became a strategic tool for companies looking to optimise resource utilisation and enhance operational efficiency in the energy and infrastructure sectors, aimed at bridging Africa’s infrastructure gap. Security of energy supply and the transitioning to “greener” energy sources continued to enjoy focus. Prominent transactions in these sectors included Harith General Partners’ investment in Mergence Investment Managers, BlackRock’s recently announced acquisition of Nigeria’s Adebayo Ogunlesi’s Global Infrastructure Partners, and ENGIE SA and Meridiam Infrastructure Finance’s acquisition of BTE Renewables.
• Banking and finance
The African banking and financial services sectors were at the forefront of the M&A activity during the period. With the aim of fostering stability and enhancing competitiveness, numerous financial firms across the continent engaged in M&A transactions.
This trend not only resulted in larger, more resilient financial institutions, but also facilitated the integration of innovative technologies to meet the evolving needs of consumers. Notable transactions during the period included the Sanlam and Allianz joint venture, Apex Group’s acquisitions of Sanne, Maitland and the Efficient Group, the Rohatyn Group’s acquisition of Ethos Private Equity, and KCB Group’s acquisition of an 85% stake in Trust Merchant Bank.
LOOKING AHEAD
It is evident from African M&A activity during the period that international players are taking note (and capitalising) on many of these opportunities on the continent. Faster growth prospects, less competition and “cheaper” acquisition opportunities compared with those in their home markets may continue to drive international interest in African companies. In addition, potential game changing initiatives such as the African Continental Free Trade Area (AfCFTA) and related agreements and protocols are also expected to spur M&A on the continent, both from within and outside of Africa.[4]
Given the above, it appears that a potential consolidation surge may be on the horizon.
As companies continue to navigate the African M&A landscape and the potential consolidation surge, it is essential for business leaders, policymakers and investors to stay abreast of the relevant trends and developments.
Hlophe-Kunene and Piek are Directors | PSG Capital
1. https://www.statista.com/outlook/fmo/corporate-finance/mergers-and-acquisitions/africa
2. https://www.statista.com/outlook/fmo/corporate-finance/mergers-and-acquisitions/africa
3. https://www.statista.com/outlook/fmo/corporate-finance/mergers-and-acquisitions/africa
Navigating the crucial turning point for M&A in Africa
THORTS
Tholinhlanhla Gcabashe and Cathy Truter
Tholinhlanhla Gcabashe
Cathy Truter
From global economic headwinds to regional challenges, our world has experienced a plethora of disruptions of late, which have invariably reshaped the contours of deal-making and investment. As significant changes ripple across continents, there is one that has begun to emerge as a focal point of interest: Africa.
With at least half of all global impact investment capital being injected into Africa, countries like Egypt, Kenya, Nigeria and South Africa stand as beacons, drawing significant attention.
This investment flow has been most notably propelled by certain key sectors.
With escalating expenses in healthcare, key players are harnessing the power of digital health technologies – not only to curb soaring costs, but also to enhance their competitive edge and broaden the reach of medical services across the continent. Concurrently, there’s a palpable excitement among patients and healthcare consumers, who have swiftly embraced the numerous digital health solutions that emerged in the wake of the COVID-19 pandemic. This has resulted in pharmaceuticals, biotechnology, and medical services standing out as frontrunners for M&A activity in the sector, particularly within the private equity segment.
African fintech is also pulling in substantial investments, drawn by commitments to financial inclusivity and the promise of healthy returns among the continent’s youthful population. However, regulators have flagged concerns over consumer protection, data privacy and protection, and the competition implications of the digital economy – issues that must be addressed if the sector is going to continue to be attractive to international investors.
The pressing need to rectify long-standing energy shortages throughout Africa, coupled with the shift in global priorities, has also amplified the focus on the renewable energy sector, making it a pivotal driver for M&A activity in the region. As several African nations grapple with intermittent power supplies and an over-reliance on fossil fuels, there is a growing recognition of the potential that renewable sources such as solar, wind and hydro present.
As a result, M&A activity has surged, with conglomerates and startups alike seeking partnerships and acquisitions that can expedite the transition to cleaner energy solutions – presenting a dual opportunity for investment and impact.
Africa’s telecommunication sector has also emerged as one of the fastest-growing industries on the continent, and is poised to drive considerable economic growth in the future.
Another sector that has seen a resurgence is mining and minerals, as the need for essential minerals like copper, nickel, lithium and cobalt is on the rise globally, although commodity price deterioration and uncertainty are having a significant impact.
While these sectors highlight current M&A opportunities in Africa, other recent developments provide hope amid the challenging global economic conditions. For example, the African Continental Free Trade Area (AfCFTA) is gaining unprecedented momentum. Having garnered commitment from 54 nations and been ratified by 46, AfCFTA is poised to emerge as the world’s most expansive free trade zone.
Its comprehensive protocols, ranging from goods and services trade to intellectual property and investment frameworks, are either already operational or progressing auspiciously. The anticipated dividends include a boost in intra-African commerce, the fostering of regional value networks, empowerment of African enterprises, and a reinvigorated stance on economic diplomacy.
Recent moves by BRICS to invite Ethiopia and Egypt (among others) to join South Africa, Brazil, Russia, India and China, collectively, to other trade agreements may pave the way for a more influential African voice in global politics, institutions and financial systems.
As the African investment landscape evolves, the emphasis on environmental, social and governance (ESG) considerations will intensify. The global pivot towards sustainable practices is undeniable, and businesses now face scrutiny not only for their contributions to sustainability but also the authenticity of their commitments, with accusations of ‘greenwashing’ under rigorous review.
Furthermore, the investor lens is adapting, particularly from an international stakeholder’s perspective. They are progressively gauging the long-term environmental and societal impacts of ventures they fund. It is evident that ESG considerations will be instrumental in steering future M&A strategies, influencing the choice of acquisition targets, valuation methods and risk assessments. Both buyers and sellers will find it imperative to showcase their ESG prowess, with these credentials increasingly serving as a barometer for an organisation’s ethos and growth potential.
Notably, regulatory, public interest and local ownership considerations, as well as shareholder activism, are playing an increasing role in M&A. This has added additional burdens that parties ought to consider, although these are not usually insurmountable.
Africa stands on the precipice of significant change, characterised by a confluence of dynamic factors that signal both formidable challenges and unparalleled opportunities. The shifts in the M&A terrain are not merely transactional, but transformative, marking a pivotal moment in the continent’s economic trajectory.
Those equipped with the foresight to discern and adeptly engage with these changes will not only witness, but actively shape the next exciting chapter in Africa’s economic odyssey.
Gcabashe is Co-Head of M&A and Truter is Head of Knowledge | Bowmans
THORTS
Competition Law developments in Africa
Lesley Morphet
Lesley Morphet and Nolukhanyo Mpisane
Nolukhanyo Mpisane
MERGER REGULATION
Merger regulation continued to feature prominently in many African jurisdictions in 2023, with many transactions requiring approval. Most were uncontentious, but there were some high-profile cases that encountered headwinds. Notably, the proposed acquisition by AkzoNobel of Kansai affected a number of African countries, and was reviewed by many competition regulators across the continent. The parties were direct competitors, and the deal was closely scrutinised over many months.
The transaction was approved in Nigeria, Tanzania Mozambique and Namibia, but it was prohibited in South Africa and Botswana. COMESA conditionally approved the deal in Malawi, Burundi, Kenya, Rwanda and Uganda, but prohibited it in Eswatini, Zambia and Zimbabwe. In South Africa, the decision to prohibit the transaction was taken on reconsideration by the Competition Tribunal, and handed down in November 2023. Because the parties again failed to obtain approval, AkzoNobel and Kansai have mutually agreed not to proceed with the merger.
PUBLIC INTEREST
South Africa continues to focus on public interest considerations in mergers, an aspect that has gained considerably in importance since legislative amendments aimed at promoting economic transformation, amongst other things, came into force in 2019. In October 2023, the South African Competition Commission issued a draft of amended public interest guidelines relating to merger control for comment, although, in practice, they have been applying these principles for some time. While employment issues have been in focus for some years, the competition authorities are now intent on ensuring that historical injustices are rectified.
In accordance with the amendments, when reviewing mergers, they now seek to ensure that small and medium-sized enterprises (SMEs) have an equitable opportunity to participate in the economy, and that mergers promote a greater spread of ownership; in particular, increasing the ownership stakes of historically disadvantaged persons (HDPs) and workers. Foreign to foreign transactions are also viewed through this lens, with a number of mergers being approved subject to conditions to achieve these outcomes.
South Africa is not alone in seeking public interest benefits pursuant to mergers. For example, in the Heineken / Distell merger (which was reviewed in a number of African countries), South Africa imposed public interest conditions, including the requirements to maximise procurement from SMEs and HDPs, and to put an employee share ownership scheme in place. Botswana required the parties to set up a distribution development programme to absorb a suitable Botswanan citizen-owned company into the merged entity’s supply chain. Namibia imposed a condition regarding retrenchments, as well as a condition encouraging local production.
PROHIBITED PRACTICES
A number of African countries were active in investigating prohibited practices. Kenya investigated cartels in the manufacturing and agriculture sector. Pursuant to the investigation, nine steel manufacturers were penalised for engaging in price fixing. Morocco investigated nine fuel companies for anti-competitive practices in the markets for the supply, storage and distribution of gasoline and diesel.
A settlement agreement was concluded, where the companies were required to pay a $180,000 fine. Namibia has recently launched an investigation into fishing vessel owners and operators for the alleged fixing of quota usage fees that are paid to fishing rights holders. An important case in South Africa is the forex bank cartel case, which has been ongoing for many years, though the substantive case is yet to be heard.
There have been numerous interlocutory skirmishes, most recently before the Competition Appeal Court (CAC) in November 2023, pursuant to which the CAC has dismissed the case against 14 banks – leaving only five banks still to face the music – although an appeal by the Commission cannot be ruled out. Kenya is also investigating banks for the fixing of foreign exchange trades.
DIGITAL MARKETS
Digital markets continue to be in the spotlight globally, and Africa is no exception. In late 2021, the regulators in Kenya, Nigeria, Egypt, Mauritius and South Africa began a discussion on the topic, and in 2023, this grouping expanded. Pursuant to a dialogue, these countries, as well as COMESA, The Gambia, Morocco and Zambia, agreed to set up a working group to collaborate on competition issues in digital markets, amongst others.
The working group is committed to expanding and deepening the dialogue on this topic amongst African competition authorities. The African Competition Forum undertook training on complex digital investigations, focusing on the characteristics of digital markets, amongst others. Mozambique is also looking into digital markets and has recently published a Decree that approves the Regulations on the Registration and Licensing of Intermediary Providers of Electronic Services and Digital Platforms Operators.
South Africa is particularly focused on this area. In 2023, the Competition Commission concluded its Online Intermediation Platforms Market Inquiry and published its findings and proposed remedial actions. Shortly thereafter, it launched a further market inquiry into Media and Digital Platforms, which is ongoing. After a first round of questions, the Commission recently issued a Further Statement of Issues, and will shortly begin public hearings.
Market inquiries are a popular tool in South Africa. In addition to the digital markets inquiries mentioned above, the Commission is currently conducting a market inquiry into Fresh Produce, and in April 2023, it issued draft terms of reference in relation to a Steel Market Inquiry. Other countries are starting to follow suit, and Seychelles is set to undertake a comprehensive market inquiry into the grocery retail sector.
COMPETITION LEGISLATION DEVELOPMENTS
Uganda has been considering competition legislation for a number of years and, in August 2023, the legislation was finally passed by the legislature. Although the bill envisaged that the Act be administered by an independent competition authority, President Museveni required that this be reconsidered. The Act was passed on the basis that administration fall under the relevant ministry, but on the understanding that there would, in future, be an amendment making provision for an independent competition authority to be established.
In February 2023, the African Union (AU) Heads of State formally adopted the Protocol to the Agreement establishing the African Continental Free Trade Area on Competition Policy (Competition Protocol) at the 36th Ordinary Session of the Assembly of Heads of State and Government of the AU. The Competition Protocol aims to create an integrated and unified continental competition regime which covers all aspects of competition law, including merger control, prohibited practices, and abuse of dominance. The Competition Protocol must still be ratified by 22 of the member states before it can enter into force.
CONCLUSION
It can be seen that competition law is alive and well in Africa, and constantly developing. Companies doing business in Africa will need to keep abreast of these developments to ensure that they stay on the right side of the various competition laws across the continent.
Morphet is a Partner and Mpisane a Candidate Attorney | Fasken (Johannesburg)
THORTS
Unlocking Africa’s economic potential by growing the continent’s trade volumes
Oluseyi Kumapayi
In recent years, mergers and acquisitions (M&A) have emerged as a significant avenue for investment in Africa, attracting attention from both global and local market participants. Importantly, M&A has reshaped the banking industry’s dynamics and prompted debates on the implications for financial stability, competition and economic development. While there may be critics of M&A as it relates to consolidation, it is crucial to recognise the benefits that well-executed M&A can bring to the continent’s banking sector and economic fortunes.
Access Bank has been working tirelessly to execute our vision to be the world’s most respected African Bank. Through disciplined and carefully considered dealmaking, we have made great strides in building a strong global franchise, focused on serving as a gateway and support for investment and trade within key markets in Africa – as
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Oluseyi Kumapayi
well as between Africa and the rest of the world – by leveraging the power of technology and a robust network of relationships across the countries in which we operate.
In the past 12 months alone, we have announced nine transactions in seven countries across the continent, including Uganda, Zambia, Angola, Tanzania, the Gambia, Sierra Leone and Cameroon. This has increased our reach and enabled us to establish operations across 14 African countries (with plans to expand to 20, in line with our 2027 strategy). While the main objective of every transaction has been to build the scale needed to become a major player in each of our markets, we continue to be guided by the belief that prosperity is cultivated through inclusive growth and economic development. The Bank has leveraged its propositions for Small and Medium Enterprises (SMEs), Women and Youth, and recognised their pivotal role as the backbone of a thriving economy. Our acquisitions, therefore, seek to enhance the capability of human capital in prospective countries, building their economic prosperity and creating positive impact in our host communities.
Our approach to M&A has also emphasised regional integration as a strategic imperative. In a continent marked by asymmetrical markets and economies, the African Development Bank (AfDB) has noted that regional economic integration is essential for Africa to realise its full growth potential, to participate in the global economy, and to share the benefits of an increasingly connected global marketplace. Having 54 individual countries, often without the physical and economic machinery to act in tandem, seriously limits this possibility. M&A is key to this integration, as it facilitates cross-border expansion, enabling banking institutions to play a significant role in fostering economic development.
The breadth of Access Bank’s operations across 20 markets globally will enable it to become Africa’s payment gateway to the world, creating a globally connected community, inspired by Africa. By building this multi-jurisdictional footprint, committing over US$680 million through greenfield initiatives and inorganic growth facilitated by targeted M&A activities, we have ensured that the continent’s most impactful customers are able to benefit from a larger combined balance sheet. Customers now also benefit from a broader international footprint – with increased access to trade finance, treasury, international payments and loans via Access Bank’s wider distribution network – and presence in the key trade corridors which connect Africa with Dubai, China, Lebanon, Paris, Mumbai, the UK and Hong Kong, as well as other key markets.
Access Bank has continued its impressive growth trajectory, both organically and by acquisition. Our most recent large-scale transaction was the acquisition of Standard Chartered Bank’s (SCB) operations across Angola, Cameroon, the Gambia and Sierra Leone, and its Consumer, Private & Business Banking business in Tanzania. Access Bank’s acquisition in these five markets aligns with its disciplined approach to expansion, representing a key step in its journey to build a strong global franchise, focused on serving as a gateway for payments, investment and trade within Africa, and between Africa and the rest of the world. Access Bank’s strategic global presence allows for enhanced cross-border transactions, correspondent banking services, and smoother remittance processes. This seamless global connectivity ensures that customers can conduct business efficiently, and access international markets with ease.
Moving further down south to Zambia, we have recently completed our acquisition of African Banking Corporation Zambia Limited, trading as Atlas Mara Zambia (Atlas Mara), after obtaining all requisite regulatory approvals. This transaction will propel the combined entity into the top five banks by revenue in the Zambian market, with prospects to be in the top three by 2027. We also expect to create a larger platform to access the COMESA banking opportunity, supporting customers within the region through the Access Bank network.
But these transactions only paint part of the picture, serving to confirm that an uptick in M&A in African banking should be viewed as a channel for investment, and a strategic move towards unlocking the continent’s immense banking potential. By fostering technological innovation, financial inclusion, regulatory compliance, regional integration, risk mitigation and international competitiveness, M&A emerges as a catalyst for sustainable economic growth and development in Africa. These advantages contribute to the industry’s adaptability, resilience, and ability to provide enhanced services to customers in an evolving economic landscape. As this transformative journey is navigated, it is imperative to recognise the long-term benefits that strategic consolidation can bring to the continent’s banking landscape, and its broader economy.
Access Bank’s vision for growth and expansion in Africa is a promising one that seeks to roll out initiatives that will further develop the African continent and, more importantly, reshape the global perception of Africa and African businesses.
Oluseyi Kumapayi is Executive Director | African Subsidiaries, Access Bank Plc