The Competition Commission U-turned earlier this month when it announced it was now in favour of the deal following negotiations with Vodacom and Maziv. It had previously recommended to the Competition Tribunal that the transaction be blocked because of its potentially negative impact on competition in the fibre broadband market.
The commission's new stance meant Vodacom and Maziv's case to the appeal court was - for the first time in South African history - presented without a counterfactual for the court to weight it up against.
"We are faced with a unique situation that in 306 pages you tell me how wrong the tribunal was but I have absolutely nothing from the commission to tell me why you are wrong," said CAC judge president Norman Manoim, referring to Vodacom and Maziv.
The CAC is the highest authority in competition law in South Africa, with the power to review, amend and overturn decisions by the Competition Tribunal. Typically, a merger sits before the CAC after it has been blocked by the tribunal based on a recommendation by the Competition Commission.
At a CAC hearing, merger parties typically argue why they believe the tribunal's decision to block the deal was incorrect. Their view is then counterbalanced by the commission arguing the opposite, in line with its prior recommendation and the tribunal's decision.