SA’s New Rule 39: Has the Balance of Power Shifted in the Enforcement of Merger Conditions?

By: Stephany Torres (African Antitrust/Primerio)

In this entry for the African Antitrust Blog, author Stephany Torres (Primerio) shares her insight on the revised merger enforcement framework in South Africa and its implications for companies subject to post-merger approval conditions. Published on October 13, 2026, the amendments to Rule 39 of the Competition Commission’s procedural rules introduce a revised process for investigating and addressing alleged breaches of merger commitments, including employment undertakings, investment obligations and local procurement conditions.

The revised framework allows the Competition Commission to investigate suspected breaches and issue a Notice Requesting Compliance, giving companies at least ten business days to remedy the issue or submit a remedial plan. If the matter remains unresolved, the Commission may seek a Competition Tribunal order compelling compliance. More serious consequences, including revocation and administrative penalties, may follow if a company subsequently fails to comply with the Tribunal’s order.

Torres examines the changes in light of the Constitutional Court’s 2024 Coca-Cola Beverages Africa judgment, which clarified the assessment of substantial compliance and the causal connection between mergers and alleged breaches of employment conditions. The revised rules remove the former express substantial-compliance review mechanism and introduce an evidentiary requirement for companies claiming compliance, raising questions about the respective burdens of proof and procedural fairness under the new framework.

For corporate counsel, the changes underscore the importance of treating post-merger compliance as an ongoing governance responsibility. Torres identifies five priorities for in-house legal teams: reviewing outstanding merger conditions, establishing clear internal accountability, preserving contemporaneous evidence, assessing subsequent corporate decisions against existing commitments, and integrating compliance considerations into future transaction planning. Ultimately, merger approval should not be viewed as the end of competition-law risk, but rather the beginning of a potentially prolonged period of regulatory accountability…

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