Commercial Transactions Lawyers South Africa, Merger Thresholds & Filing Fees (competition Act)

Commercial transactions lawyers in South Africa are advising deal teams to reassess every pending and pipeline transaction following the draft amendments to the Competition Act merger thresholds published on 27 January 2026 in Government Gazette No. 54020. The Minister of Trade, Industry and Competition has proposed materially higher notification thresholds and increased filing fees, with the public comment period closing on 10 March 2026. Industry observers expect the final amendments to take effect as early as mid-March 2026, creating an immediate compliance window for M&A transactions currently in negotiation, exclusivity or signature stages. This practitioner guide translates those regulatory changes into concrete action: notification decision rules, SPA drafting templates, fee budgeting and a step-by-step compliance checklist.

Executive Summary: Do You Need to Re‑Check Your Competition Act Notification?

The short answer is yes. Any transaction that has not yet been filed with the Competition Commission should be reassessed against the proposed merger thresholds 2026 values before the parties commit to a filing timeline or set a long-stop date. Even deals that have already been categorised as intermediate or large mergers may shift categories under the new framework, with direct consequences for fees, timelines and the level of regulatory scrutiny.

The draft amendments, published in Government Gazette No. 54020 on 27 January 2026, propose upward adjustments to every tier of the notification threshold framework. The Competition Commission has signalled that these adjustments reflect cumulative inflation since the thresholds were last revised, as well as the need to focus Commission resources on transactions with genuine competitive significance.

The public comment period runs until 10 March 2026. Based on previous threshold revision cycles and industry commentary, early indications suggest the final determination could be gazetted and become effective within days of the comment deadline closing, potentially by mid-March 2026.

Deal teams should apply the following decision rules immediately:

• If the combined turnover or asset value of the merging parties exceeds the proposed higher (large merger) thresholds, the transaction will require mandatory notification to the Competition Commission and will be adjudicated by the Competition Tribunal. A filing fee at the large merger rate applies.
• If the values exceed the proposed intermediate thresholds but fall below the large merger thresholds, the transaction must be notified to the Competition Commission as an intermediate merger. The intermediate filing fee applies and the Commission decides without referral to the Tribunal.
• If the values fall below the proposed intermediate thresholds (small merger), the transaction is generally exempt from mandatory notification, unless the Commission exercises its discretion under Section 13(3) of the Competition Act to require a filing.
• If the transaction is currently categorised under existing thresholds but would be re‑categorised under the proposed thresholds, re‑run both the size-of-transaction and size-of-parties tests using the proposed numbers before committing to a filing strategy or drafting a notification cooperation clause.
• If the deal has a long-stop date in Q1 or Q2 2026, model both the current and proposed fee and timeline scenarios and consider whether the SPA needs a threshold-adjustment mechanism or a flexible long-stop extension right.

What Commercial Transactions Lawyers in South Africa Must Know, 2026 Competition Act Changes

Numeric Threshold Changes

The draft amendments revise the combined turnover and asset values that determine whether a merger is classified as small, intermediate or large. The table below sets out the current thresholds alongside the proposed 2026 figures as published in Government Gazette No. 54020.

Source: Government Gazette No. 54020, 27 January 2026; current thresholds per the Competition Commission’s published guidance.

The increases range from approximately 30 to 33 per cent across categories, broadly reflecting CPI inflation accumulated since the last threshold revision. The proposed thresholds have been published for public comment and are not yet in force.

Scope: Which Mergers Will Be Re‑Categorised?

The practical effect of these increases is twofold. First, transactions that currently fall just above the intermediate threshold, particularly those with combined values between R600 million and R800 million, will drop below the mandatory notification line once the new thresholds take effect. These deals will no longer require Competition Act notification unless the Commission exercises its small-merger discretion. Second, transactions with combined values between R6.6 billion and R8.8 billion that currently qualify as large mergers will be reclassified as intermediate mergers, reducing both the filing fee and the level of regulatory scrutiny.

The likely practical effect will be a reduction in the total number of mandatory filings, allowing the Commission to concentrate its resources on larger transactions that present more significant competitive concerns. For deal teams, this means transactions previously assumed to require notification should be re-tested before filing.

Which Transactions Must Be Notified: Practical Tests and Examples

The Size-of-Transaction Test

The Competition Act requires parties to assess whether a transaction meets the notification thresholds by reference to the higher of the turnover or asset value of the target firm and the combined turnover or asset value of both the acquiring and target firms. For share acquisitions, the target firm’s turnover and asset values are calculated at the entity level. For asset purchases, only the turnover and asset value attributable to the assets being acquired are relevant, a distinction that requires careful scoping during due diligence.

Deal teams should note that the test applies to the acquiring group’s consolidated figures, not merely the acquiring entity. This means that a small subsidiary acquiring an equally small target may still trigger a mandatory filing if the acquiring group’s combined turnover or asset values breach the thresholds.

The Size-of-Parties Test

The size-of-parties test looks at the market presence, turnover and asset values of both the acquiring firm (or group) and the target firm separately. The purpose is to ensure that transactions involving firms with significant market positions are scrutinised even if the transaction value is relatively modest. Where either party’s individual figures exceed the relevant target-firm threshold, M&A filing obligations are triggered provided the combined threshold is also met.

Small Merger Discretion Under Section 13(3)

Even where a transaction falls below the intermediate thresholds and does not require mandatory notification, the Competition Commission retains discretion under Section 13(3) of the Competition Act to require notification. The Commission may exercise this discretion where the merger raises public interest concerns, including the effect on employment, the ability of small businesses or firms controlled by historically disadvantaged persons to participate in the market, or the effect on a particular industrial sector or region.

Three worked examples illustrate how the proposed thresholds change notification outcomes:

• Example 1, Share acquisition (30% of target). An acquiring group with combined turnover of R750 million acquires 30% of a target with assets of R120 million. Under current thresholds, this triggers an intermediate merger filing (combined R750 million exceeds R600 million; target R120 million exceeds R100 million). Under the proposed thresholds, the combined value (R750 million) falls below R800 million, so no mandatory filing is required, unless the Commission invokes Section 13(3) discretion.
• Example 2, Asset purchase. A private equity fund with total group assets of R7 billion acquires a manufacturing division with attributable assets of R200 million. Currently, this is a large merger (combined exceeds R6.6 billion; target exceeds R190 million). Under the proposed thresholds, the target’s attributable asset value (R200 million) falls below R250 million. If the combined figure still exceeds R8.8 billion and the target falls below R250 million, the transaction drops from a large merger to an intermediate merger, reducing the applicable filing fee and eliminating the requirement for Competition Tribunal adjudication.
• Example 3, Multi-jurisdiction carve-out. A multinational group sells its South African subsidiary (turnover R140 million) to a local acquirer with combined South African turnover of R900 million. Under both current and proposed thresholds this triggers an intermediate merger filing (combined exceeds R800 million; target exceeds R130 million under proposed figures). The filing obligation remains, but the increase in thresholds does not change the outcome for this particular fact pattern.

Merger Filing Fees South Africa: Budgeting and Timeline Impact

Proposed Fee Schedule

Alongside the threshold adjustments, the draft amendments propose increases to the Competition Act notification filing fees. The table below compares the current fees with the proposed figures as reported in the Government Gazette and corroborated by leading competition law commentators.

Source: Government Gazette No. 54020, 27 January 2026; Van Huyssteens newsroom, January 2026; African Antitrust, 30 January 2026.

The proposed fee increases represent a rise of approximately 33 per cent for both categories, again broadly in line with cumulative inflation since the last fee adjustment.

Fee Payment Timing

Filing fees are payable at the time the merger notification is submitted to the Competition Commission. No filing is treated as complete, and no statutory review period begins, until the fee has been received and the Commission has confirmed that the filing is complete. If a filing is withdrawn before a decision is issued, the fee is not refundable. Deal teams should therefore factor the fee as a sunk cost from the date of filing.

Budget Worked Examples

The following illustrative budgets show how deal teams should model the all-in regulatory cost of a Competition Act notification. These figures combine the filing fee with estimated external legal counsel costs for preparing the notification.

• Small deal (below intermediate thresholds). No mandatory filing. External legal cost limited to a threshold analysis memorandum, estimated R50,000 to R100,000. Total regulatory budget: R50,000–R100,000.
• Intermediate merger (proposed fee R220,000). Filing fee R220,000 plus external counsel preparation R150,000–R350,000 (depending on market complexity). Allow for potential information requests adding R50,000–R150,000. Total regulatory budget: R420,000–R720,000.
• Large merger (proposed fee R735,000). Filing fee R735,000 plus external counsel R400,000–R800,000. Economist input and market study (if required) R200,000–R500,000. Potential conditions negotiation and divestiture advice R150,000–R400,000. Total regulatory budget: R1,485,000–R2,435,000.

These estimates are indicative and will vary significantly depending on the complexity of the transaction, the number of overlapping markets, and whether the Commission raises competitive concerns during the review.

SPA Drafting for Notification Risk and Deal Structuring in South Africa

Pre-Signature Diligence and Notification Planning

Before a share purchase agreement is signed, the parties should jointly or independently assess whether the proposed transaction will trigger a Competition Act notification. The SPA should clearly allocate responsibility for preparing the filing, specify which party bears the filing fee, set out cooperation obligations and establish a realistic timeline that accounts for the Commission’s review period. Where the threshold outcome is uncertain, particularly for deals near the proposed boundary values, the SPA should contain a mechanism for the parties to agree on the appropriate filing category post-signature.

Recommended SPA Clause Bank

The following clause templates address the principal risks arising from Competition Act notification obligations. Each clause is presented as a starting point for negotiation and should be adapted to the specific transaction with the assistance of qualified commercial transactions lawyers in South Africa.

Disclaimer: These drafting templates are provided for general guidance only and do not constitute legal advice. Parties should obtain transaction-specific advice before incorporating any clause into a binding agreement.

• Notification Cooperation Clause. “Each party undertakes to cooperate fully in the preparation and submission of the merger notification to the Competition Commission, including by providing all information and documents reasonably required for the filing within [10] business days of a written request. The Purchaser shall be responsible for the preparation and submission of the filing. The filing fee shall be borne by [the Purchaser / shared equally between the parties].”
• Conditional Completion Clause. “Completion of the Transaction is conditional upon the Competition Commission (or, where applicable, the Competition Tribunal) approving the Transaction unconditionally, or upon the expiry of the statutorily prescribed waiting period without the Commission having issued a decision to prohibit the Transaction or to impose conditions unacceptable to [either party / the Purchaser]. If such approval or deemed approval has not been obtained by the Long-Stop Date, either party may terminate this Agreement by written notice.”
• Reverse Break Fee Clause. “If this Agreement is terminated because the Competition Commission prohibits the Transaction or imposes conditions that are not acceptable to the Purchaser (acting reasonably), the Purchaser shall pay the Seller a reverse break fee of R[amount] within [10] business days of such termination, as the Seller’s sole and exclusive remedy in respect of such termination.”
• Interim Operational Covenants (Gun-Jumping Prevention). “From the Signature Date until the earlier of (a) the Competition Clearance Date and (b) the termination of this Agreement, the Seller shall conduct the Business in the ordinary course consistent with past practice and shall not, without the prior written consent of the Purchaser (not to be unreasonably withheld), (i) make any material change to the Business, (ii) enter into any contract outside the ordinary course, or (iii) take any action that would constitute the implementation of the Transaction for purposes of Section 13A of the Competition Act.”
• Divestiture Allocation and Escrow Clause. “If the Competition Commission or Competition Tribunal approves the Transaction subject to a condition requiring the divestiture of any asset or business, the cost and economic risk of such divestiture shall be borne by [the Purchaser / allocated as follows: …]. The parties shall establish an escrow account funded with R[amount] to secure the performance of any divestiture condition within the timeframe specified by the Commission or Tribunal.”

Notification Process, Timelines and Possible Remedies

Step-by-Step Filing Process

The Competition Act notification process follows a structured sequence. Commercial transactions lawyers in South Africa advising deal teams should plan around these milestones:

1. Pre-notification engagement. For complex transactions, parties may request an informal pre-notification meeting with the Competition Commission to discuss the scope of information required and potential competitive concerns. This is optional but strongly recommended for large mergers or transactions involving concentrated markets.
2. Filing submission. The merger notification form (CC4 form for intermediate mergers; CC13 form for large mergers) is submitted together with the prescribed filing fee, supporting documents, and a detailed competition assessment. The statutory review period begins only once the Commission confirms that the filing is complete.
3. Phase 1 review (intermediate mergers). The Commission aims to assess intermediate mergers within 20 business days of a complete filing. In practice, this period may extend where the Commission issues requests for additional information.
4. Phase 1 review and Tribunal referral (large mergers). For large mergers, the Commission conducts a Phase 1 investigation and then refers the matter to the Competition Tribunal with a recommendation. The Tribunal will hold a hearing and issue a decision within the statutory timeframe.
5. Decision. Outcomes include unconditional approval, approval subject to conditions (behavioural or structural), or prohibition. Conditions may include employment undertakings, supply obligations, or divestiture requirements.

Commission and Tribunal Remedies

The Commission’s toolkit includes behavioural conditions (such as undertakings to maintain employment levels for a specified period), structural conditions (divestiture of specific assets or businesses), and outright prohibition. Where the Commission recommends conditions for a large merger, the Tribunal will evaluate and may modify those conditions at its hearing. For intermediate mergers, the Commission’s decision is final unless appealed to the Competition Appeal Court. Deal teams should model the potential impact of conditions on transaction value and structure the SPA to allocate the risk and cost of compliance accordingly.

Competition Compliance Checklist and Decision Tree

The following checklist provides a practical framework for deal teams to assess their notification obligations at each stage of a transaction.

Checklist by Deal Stage

• LOI / Exclusivity stage: Run the size-of-transaction and size-of-parties tests using both current and proposed thresholds. Identify whether the transaction is likely to be classified as small, intermediate or large. Factor the filing fee and estimated timeline into the indicative deal budget and timetable.
• Signature stage: Finalise the notification cooperation clause, conditional completion mechanism and fee allocation in the SPA. Confirm the filing category and prepare the notification form in draft. Consider whether pre-notification engagement with the Commission is appropriate.
• Pre-closing stage: Submit the notification and filing fee. Implement interim operational covenants to prevent gun-jumping. Respond promptly to any Commission information requests. Monitor the statutory review period and communicate progress to all stakeholders.
• Post-closing stage: Confirm that all conditions imposed by the Commission or Tribunal are being implemented. Retain records of compliance for the duration of any conditions period. Report to the Commission as required.

Top 5 Immediate Actions for Deal Teams

1. Re-run all pending and pipeline transactions through the proposed threshold values published on 27 January 2026.
2. Identify transactions that change notification category (large to intermediate, intermediate to small) and adjust filing strategy and budget.
3. Review and update SPA notification clauses for any transaction not yet signed, incorporating threshold-adjustment language and flexible long-stop dates.
4. Brief financial advisors and board committees on the fee increases and their impact on transaction budgets.
5. Monitor the Government Gazette for the final determination after the 10 March 2026 public comment deadline, and be prepared to file promptly once the new thresholds take effect.

Worked Transaction Examples and Red-Flag Scenarios

Scenario A, Unexpected re‑categorisation. A mid-market acquirer with group turnover of R650 million is acquiring a target with assets of R110 million. Under the current thresholds, this is a mandatory intermediate merger filing (combined R760 million exceeds R600 million; target exceeds R100 million). Under the proposed thresholds, the combined value of R760 million falls below R800 million, meaning the transaction is no longer subject to mandatory notification. The deal team had already budgeted R165,000 for the filing fee and allocated six weeks for Commission review. Under the proposed thresholds, those costs and timeline pressures disappear, but only if the amendments are gazetted before the transaction is filed.

The red flag: filing under the current thresholds when the new thresholds are imminent may result in an unnecessary expenditure of time and fees.

Scenario B, Fee increase strains budget. A large cross-border acquisition involves a South African target with turnover of R300 million and a combined group value of R9 billion. This is a large merger under both the current and proposed thresholds. The filing fee increases from R550,000 to R735,000, a R185,000 increase. Combined with external counsel fees, economist costs and potential divestiture advice, the all-in regulatory cost rises by approximately 12 per cent. For private equity sponsors operating with fixed transaction expense budgets, this increase may need to be reflected in the purchase price adjustment or disclosed in the investment committee memorandum.

Next Steps

The proposed amendments to South Africa’s merger notification thresholds and filing fees represent the most significant recalibration of the Competition Act’s notification framework in several years. Commercial transactions lawyers in South Africa should act now to reassess pending transactions, update SPA templates and brief their deal teams on the practical consequences. For tailored advice on how these changes affect a specific transaction or portfolio, readers are encouraged to consult a qualified practitioner through Global Law Experts.

Last reviewed: 6 May 2026. This article reflects the draft amendments published in Government Gazette No. 54020 on 27 January 2026. The final determination had not been gazetted at the time of publication. Readers should verify the current status of the amendments before relying on this guidance.

Sources

1. South African Government, Government Gazette No. 54020 (Draft: Determination of Merger Thresholds)
2. Competition Commission of South Africa, Merger Thresholds
3. Bowmans, Proposed Amendments to the Merger Notification Thresholds and Merger Filing Fees
4. Cliffe Dekker Hofmeyr, Competition Law Alert
5. Van Huyssteens, Competition Law Thresholds Set for Major Reset
6. African Antitrust, Draft Amendments to South Africa’s Merger Thresholds and Filing Fees
7. DLA Piper, South Africa Proposes Higher Merger Filing Thresholds