competitiontribunal
SOUTH 1\FRICA
COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No.: LM196Mar23/INT123Nov23
and LM196Mar23CNF135Nov23
In the intervention and access applications of:
ASTRON ENERGY (PTY) LIMITED
And
VITOL EMERALD BIDCO (PTY) LTD
ENGEN LIMITED (PTY) LTD
COMPETITION COMMISSION OF SOUTH AFRICA
In re the large merger between:
VITOL EMERALD BIDCO (PTY) LTD
And
ENGEN LIMITED (PTY) LTD
Panel:
Heard on:
Decided on:
M Mazwai (Presiding Member)
AW Wessels (Tribunal Member)
L Mncube (Tribunal Member)
11 January 2024
15 January 2024
ORDER
Applicant
First Respondent
Second Respondent
Third Respondent
Primary Acquiring Firm
Primary Target Firm
Having read the papers of record and heard counsel for the parties, the Competition Tribunal
("Tribunal") orders as follows:
1. The Applicant is granted leave to intervene as a participant in the large merger
proceedings before the Competition Tribunal ("Tribunal") in relation to the proposed
transaction between the First and Second Respondents under case number LM 196Mar23,
in terms of section 53(c)(v) of the Competition Act 89 of 1998, as amended ("the Act") ("the
merger proceedings").
2. The Applicant is permitted to participate in the hearing in relation to the following theories
of harm:
2.1. customer foreclosure concerns, both in respect of the merging parties shifting the
Second Respondent's ("Engen") source of supply from the Applicant to internal
supply, and the merged entity expanding its imports to target and displace Astron
Energy's sales to other customers in and around Cape Town;
2.2. input foreclosure concerns related to buy-sell agreements with Engen;
2.3. whether the proposed merger will likely harm employment and have a negative impact
on a particular industrial sector or region as a consequence of closure of the Astron
Energy refinery; and
2.4. whether the proposed conditions adequately address any anti-competitive
consequences of the proposed merger.
(collectively "the scope of intervention")
3. Subject to the abovementioned scope of intervention and appropriate confidentiality
undertakings being provided, Astron Energy's participation in the merger proceedings
shall include the rights to:
3.1. attend all pre-hearing conferences;
3.2. adduce oral and documentary evidence, including expert evidence, relevant to the
merger proceedings;
3.3. request the Tribunal to direct, summon and or order any person to appear at the
hearing, or to produce any book, document or item for purposes of such hearing;
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3.4. cross-examine the witnesses of the merger parties and/or other participants at the
merger hearing;
3.5. inspect any books, documents and other items filed by any participants in the merger
proceedings, including inspection by the Applicant's legal representatives and
experts, subject to appropriate confidentiality undertakings, of any information filed by
any participants subject to a claim of confidentiality;
3.6. have access to the Competition Commission's ("the Commission") record which has
been referred to the Tribunal in this matter, including access by the Applicant's legal
representatives and economic experts, subject to appropriate confidentiality
undertakings, to any information contained in the record which is subject to a claim of
confidentiality; and
3.7. participate in any interlocutory proceedings related to the issues referred to in
paragraph 2 above;
3.8. present written and oral argument at the merger hearing.
4. Within 12 hours of this order, the First and Second Respondents will grant access (in
downloadable electronic form) to the legal representatives and economic experts of the
Applicant, Bowman Gilfillan, Inc. and Berkeley Research Group, subject to the
confidentiality undertakings that have been provided by them to:
4.1. The confidential merger recommendation made and provided by the Commission that
redacts third party confidential information but retains the merging parties' confidential
information; and
4.2. The merging parties' documents claimed as confidential contained in the
Commission's record of investigation that the merging parties regard as relevant to
the Applicant's scope of intervention, as determined by the Tribunal.
5. In addition, for the purpose of formulating the Applicant's discovery request and for the
purpose of determining whether the merging parties' selection of relevant documents
provided for in paragraph 4.2 includes all relevant documents, and subject to the same
confidentiality undertakings, the First and Second Respondents shall temporarily, but for
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a reasonable period, make available for inspection (in electronic, read-only form) all of the
merging parties' other documents that· have been excluded from those provided in
paragraph 4.2, to enable the legal representatives and economic experts of the Applicant
to identify any further documents which are relevant to the App licant's scope of
intervention, as determined by the Tribunal.
6. The Commission shall make available to the Applicant's legal representatives and
economic experts a full, unredacted copy of the index to the Commiss ion's record of
investigation.
7. The Applicant's counsel team, Adv. Michael van der Nest SC, Adv. Jerome Wilson SC,
and Adv. Lebogang Phaladi are granted access to the documents set out in paragraph 4.1
-4.2 and 5 above.
8. There is no order as to costs.
15 January 2024
Presiding M Date
Ms Mondo Mazwai
Concurring: Prof. Liberty Mncube and Mr Andreas Wessels
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