Sasol Gas And CC and Others

The judgment

The court's own file

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