In brief
The Competition Commission of South Africa (Commission) published draft amendments to its Small Merger Notification Guidelines (Guidelines) for public comment on 14 August 2026.
The amendments follow the increase in South Africa's merger thresholds in May 2026. They principally update the monetary thresholds in the Guidelines. They do not introduce new notification categories or materially change the existing framework.
The amendments nevertheless remain relevant for transaction planning. Certain transactions that fall below the mandatory merger thresholds must still be brought to the Commission's attention before implementation. This includes transactions where the acquiring firm exceeds the relevant financial threshold and the applicable target-related transaction value criterion is met.
Businesses should therefore continue to assess small mergers separately from the mandatory notification thresholds and build potential Commission engagement into transaction timetables where necessary.
In more detail
South Africa's merger-control regime classifies transactions as large, intermediate or small by reference to prescribed turnover and asset thresholds. Large and intermediate mergers require mandatory notification and approval before implementation. Small mergers generally do not.
The Competition Act 89 of 1998 (Act) nevertheless allows the Commission, for up to six months after implementation, to require notification of a small merger if it believes the transaction may substantially prevent or lessen competition or cannot be justified on public-interest grounds. Once notified, the parties may not take further steps to implement the transaction until it has been approved.
The Guidelines supplement this power. Although they are not binding, they identify categories of small mergers that the Commission expects parties to bring to its attention before implementation. The Commission then decides whether the transaction must be formally notified under section 13 of the Act.
What is changing?
The amendments largely align the Guidelines with the revised merger thresholds announced in May 2026. The amended Small Merger Guidelines require the Commission to be notified in writing prior to implementation where:
- The acquiring firm's turnover or asset value alone exceeds the large merger combined turnover/asset threshold (currently ZAR 9.5 billion)
- At least one of the following applies in relation to the target firm
- The consideration for the acquisition or investment exceeds the large merger target firm turnover/asset threshold (currently ZAR 280 million)
- Where only part of a target firm is being acquired, the consideration is below ZAR 280 million but nevertheless implies a valuation of the target firm of ZAR 280 million or more.
The higher thresholds narrow the range of transactions captured by these financial criteria. They do not, however, remove the need to assess whether a transaction falls within another part of the Guidelines or may attract scrutiny under section 13(3) of the Act.
Why the retained framework remains relevant
The proposed amendments do not alter the underlying rationale for the Guidelines. The Commission remains concerned that acquisitions of early-stage digital and technology businesses may escape scrutiny because their competitive significance is not reflected in conventional turnover or asset metrics.
In the Commission's view, a target's value may lie in its technology, intellectual property, specialist skills, data assets or future growth potential rather than its current revenues or accounting asset values. Acquiring such businesses may remove future competitive constraints or strengthen the position of established firms.
The Commission's digital-market work since December 2022 provides additional context for these concerns.
The Online Intermediation Platforms Market Inquiry (OIPMI) highlights factors such as scale, network effects, customer access, business-user dependency and barriers to expansion. It also recognises that global platforms may acquire significant influence in South Africa by leveraging established technology, brands, products, relationships and capital.
The Online Intermediation Platforms Guidance Note (OIP Guidance Note) similarly recognises that market shares may not always capture market power in digital markets. It points instead to factors such as network effects, dependency, vertical integration and data advantages.
The Media and Digital Platforms Market Inquiry (MDPMI) likewise highlights the competitive significance of network effects, user data and ecosystem integration.
Collectively, these developments do not create any notification triggers, however, they do illustrate the Commission's increasingly sophisticated approach to competition in digital markets. Against that backdrop, the Guidelines provide a mechanism through which the Commission can monitor acquisitions that may have strategic significance despite falling below the ordinary mandatory notification thresholds.
The amendments also do not resolve a longstanding practical challenge. Since introducing the Small Merger Notification Guidelines in 2022, the Commission has recognised that acquisitions involving the future value of a target's technology, intellectual property, skills or growth potential may warrant closer scrutiny, even though these attributes may not be fully reflected in conventional financial statements or other traditional measures of value.
Practical implications for business and transaction planning
Pending finalisation of the proposed amendments, transaction teams may proactively screen transactions against the proposed Guidelines and conduct a separate small-merger assessment, considering:
- Whether any merging party or group company is the subject of a Chapter 2 investigation or pending Tribunal proceedings following a referral by the Commission
- Whether the acquiring firm and target satisfy the relevant thresholds set out in the Guidelines
- Whether the target possesses technology, intellectual property, specialist skills or growth potential that may attract heightened Commission scrutiny
- Whether transaction documents and timetables should accommodate potential engagement with the Commission, including its stated 30-business-day response period.
Where the Guidelines may apply, parties should allocate responsibility for engaging with the Commission, providing information and responding to any notification request. They should also consider the implications of the process for conditions precedent, long-stop dates and overall transaction implementation planning.
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Nontobeko Khumalo, Trainee Solicitor, has contributed to this legal update.