COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: IR095AUG22
In the matter between:
INDUSTRIAL GAS USERS ASSOCIATION OF
SOUTHERN AFRICA
Applicant
And
SASOL GAS (PROPRIETARY) LIMITED First Respondent
NATIONAL ENERGY REGULATOR OF SOUTH AFRICA Second Respondent
COMPETITION COMMISSION OF SOUTH AFRICA Third Respondent
And
Case No: OTH110SEP22
In the matter between:
SASOL GAS (PROPRIETARY) LIMITED Applicant
And
COMPETITION COMMISSION OF SOUTH AFRICA First Respondent
INDUSTRIAL GAS USERS ASSOCIATION OF
SOUTHERN AFRICA
Second Respondent
EGOLI GAS (PROPRIETARY) LIMITED Third Respondent
NATIONAL ENERGY REGULATOR OF SOUTH AFRICA Fourth Respondent
Panel: Ms M Mazwai (Presiding Member)
Adv G Budlender SC (Tribunal Member)
Mr A Roskam (Tribunal Member)
Heard on: 6 and 7 February 2023
Order Issued on: 12 May 2023
Reasons Issued on:
12 May 2023
ORDERS AND REASONS FOR DECISION
33
granted. As we understand it, this is said to bear on the balance of
convenience.
99. It is not clear what would constitute the granting of final relief in this matter.
The interim relief is sought pending the conclusion of the investigation by the
Commission into the allegedly prohibited practice. The interim relief is not
sought pending a determination in favour of IGUA-SA. What IGUA-SA seeks
is that the complaint be determined, and that there be no increase until this
determination has been made, whether favourable to IGUA-SA or otherwise.
100. It is reasonable to anticipate that the Commission will (unless interdicted from
doing so) conclude its investigation into the alleged prohibited practice of
excessive pricing. That being so, in the view of the Tribunal, it would not be
just and equitable to require IGUA-SA to make a tender of any loss of
potential income while the Commission is undertaking the investigation
which, the evidence shows, should be undertaken. It seems highly probable
that the maximum permissible price derived from the benchmark would
constitute excessive pricing – Sasol Gas does not seek to defend it – and it
appears that NERSA considers that the price which was introduced by Sasol
Gas (R133.34/GJ) would also be too high in terms of the NERSA pricing
criteria.
GJ
45
135. In the circumstances, an appropriate order would be to grant the interim relief
application interdicting and restraining Sasol Gas from increasing the gas
price to above R68.39/GJ for a period of six months, or pending conclusion
by the Commission of its investigation into the alleged prohibited practice by
Sasol Gas, whichever occurs first.
Ms Mondo Mazwai
Tribunal Case
Managers:
Matshidiso Tseki, Baneng Naape, Sinethemba Mbeki, Leila
Raffee
For Sasol Gas: Adv Frank Snyckers SC assisted by Adv Mkhululi Stubbs,
on instruction by Bowmans (OTH110SEP22)
Adv Alfred Cockrell SC assisted by Adv Adrian Friedman,
on instruction by Bowmans (IRO95AUG22)
For the
Commission:
Adv Tembeka Ngcukaitobi SC assisted by Adv Lerato
Zikalala and Adv Shannon Quinn, on instruction by
Haasbroek & Boezaart Attorneys
For IGUA-SA: Adv Kate Hofmeyr SC assisted by Adv JJ Meiring and Adv
Lebogang Phaladi, on instruction by Norton Rose Fulbright
South Africa
GJ