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TRP investigation involving Extract Grp Ltd, Enx Grp Ltd, Zarclear Holdings Ltd, African Phoenix Inv Ltd and Others
TAKEOVER REGULATION PANEL
(Established in terms of the Companies Act, 2008)
(“TRP or “Panel”)
TAKEOVER REGULATION PANEL INVESTIGATION INVOLVING EXTRACT GROUP LIMITED,
ENX GROUP LIMITED, ZARCLEAR HOLDINGS LIMITED, AFRICAN PHOENIX INVESTMENTS
LIMITED AND OTHERS
1 INTRODUCTION
The Panel has received written complaints from certain persons
(together, the "Complainants"), who each made separate but common allegations relating
to the following transactions:
a) the share repurchase in African Phoenix Investments Limited ("API") by way of a scheme
of arrangement for the purposes of de-listing API on or about April 2020;
b) the general offer involving Peresec Prime Brokers Proprietary Limited (formerly known
as Legae Peresec Capital Proprietary Limited) ("Peresec") and Zarclear Holdings
Limited (formerly known as Sandown Capital Limited) ("Zarclear") on or about
September 2020;
c) the share repurchase by Zarclear, by way of a scheme of arrangement, on or about
August 2021 (the "2021 Zarclear Repurchase");
d) the mandatory offer in ENX Group Limited ("enX") on or about April 2022
("enX Transaction"); and
e) the scheme of arrangement involving API and Zarclear on or about May 2022,
(Collectively, the "Transactions").
2 THE NATURE OF THE COMPLAINT
2.1 The crux of the complaints is that certain parties involved in the Transactions (the "impugned
parties") failed to disclose that they were acting in concert, in relation to the Transactions,
during the Panel's consideration and approval thereof. Alternatively, if these relationships
were disclosed to the Panel, they were not disclosed timeously, and as stipulated by the
Companies Act 71 of 2008 (the "Act") and the takeover regulations
(collectively, the "Takeover Provisions"). Instead, this status was disclosed much later,
allowing the impugned parties to maximize the value that accrued to them at the expense of
other shareholders under some or all of these Transactions.
2.2 Concerning the 2021 Zaclear Repurchase, the Complainants alleged that the impugned
parties failed to disclose their concert party relationships with the offerors therein and voted
during the scheme meeting in contravention of the Takeover Provisions.
2.3 Further, concerning the enX Transaction, they alleged that the impugned parties acquired
shares in enX at prices higher than that offered to offeree shareholders, in contravention of
the Takeover Provisions. Furthermore, the the composition of the board of enX may have
been altered during the enX Transaction in violation of the Takeover Provisions.
2.4 Lastly, concerning the scheme of arrangement between API and Zarclear, in 2022, the
potential liability of API in respect of the Extract Group Limited ("Extract") mandatory offer
was not considered by the independent expert.
2.5 The complaints, among others, mention the following impugned parties:
a) API and some or all of its directors at all material times of the complaints;
b) Extract and some or all of its directors at all material times of the complaints;
c) Zarclear and some or all of its directors at all material times of the complaints;
d) Peresec South Africa Limited and some or all of its directors at all material times of the
complaints;
e) Nkholi Consolidated Investments Proprietary Limited and some or all of its directors at
all material times of the complaints;
f) Zolospan Proprietary Limited and some or all of its directors at all material times of the
complaints;
g) MCC Contracts Proprietary Limited and some or all of its directors at all material times
of the complaints;
h) SBSA ITF Sui Generis LPFP H4 QHF and some or all of its officers or beneficiaries at
all material times of the complaints; and
i) Peresec and some or all of its directors at all material times of the complaints.
3 COMMENCEMENT OF THE PANEL INVESTIGATION IN TERMS OF CHAPTER 7 OF THE
ACT
3.1 Having considered the complaints, the Executive Director of the Panel determined that these
complaints are neither frivolous nor vexatious and give rise to a reasonable suspicion that
an infringement of the Takeover Provisions may have occurred in respect of the
Transactions. At this stage, no adverse findings have been against any of the impugned
parties.
3.2 On that basis, he appointed Mr Zano Nduli, the Deputy Executive Director of the Panel, as
an inspector in terms of section 209(1)(a) of the Act, to investigate the complaints in terms
of Chapter 7 of the Act and then report to him on the outcome of the investigation.
3.3 Having regard to the above, the inspector has deemed it fit to invite interested parties who
wish to make submissions concerning the Transactions and the impugned parties to do so
within 14 days from the date of publication of this announcement.
3.4 Any affected person who wishes to make any submission to the Panel regarding the
investigation above should contact the Panel on the following email address
admin@trpanel.co.za.
4 RESPONSIBILITY STATEMENT
The TRP accepts responsibility for the information contained in this announcement which
relates to the above-mentioned potential transaction and confirms that, to the best of its
knowledge and belief, such information is true and the announcement does not omit anything
likely to affect the importance of such information.
19 August 2022
Date: 19-08-2022 05:01:00
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