The Competition Commission can proceed with the prosecution of Sasol Gas after the Competition Appeal Court (CAC) on Wednesday dismissed its review application of the Commission’s investigation into alleged excessive pricing of natural piped gas.
The Commission welcomed the Competition CAC decision and can now proceed to take the case to the Competition Tribunal.
If the Tribunal rules against Sasol Gas it can impose the maximum fine of 10% of Sasol Gas' revenue over the period of the contravention.
The Commission also said the CAC decision confirmed that the Commission had concurrent jurisdiction with National Energy Regulatory of South Africa (Nersa) over Sasol Gas’ conduct: Nersa could determine the maximum price of gas under the Gas Act, and the Commission could investigate alleged excessive pricing under the Competition Act.
The prosecution stemmed from three complaints against Sasol Gas which were lodged, in early 2022, with the Commission by Egoli Gas, the Industrial Gas Users Association of South Africa (IGUA-SA), and Spring Lights Gas. The complainants alleged, amongst others, that Sasol Gas engaged in excessive pricing of natural piped gas in contravention of the Competition Act.
Egoli Gas and Spring Lights are gas traders, and IGUA-SA’s members are industrial gas customers.
The Commission had filed a referral with the Tribunal on July 10, 2023.
“The CAC decision further re-emphasises the Commission’s mandate to investigate and prosecute excessive pricing complaints in the natural piped gas industry, in terms of section 8(1) of the Competition Act 89 of 1998, as amended (Competition Act). The Commission will also be able to obtain the relevant costing data from Sasol Gas that forms the basis of its pricing for natural piped gas,” it said in a statement.
The Commission had issued Sasol Gas with a summons on August 12, 2022 requesting relevant information to assist with its investigation into the alleged conduct. Sasol Gas, however, refused to respond to the summons and requested interdictory relief from the Tribunal.
However, the Tribunal dismissed the interdict against the summons on May 12, 2023. Sasol Gas then approached the CAC seeking the same interdictory relief. On June 12, 2023, the CAC granted Sasol Gas interdictory relief against the Commission’s summons pending the review application. It is this review application that has now been dismissed by CAC.
Sasol Gas’ review application to the CAC sought to declare the Commission’s decisions to investigate and issue the summons invalid and unlawful, and to review and set aside those decisions.
Sasol Gas contended that Nersa had the sole jurisdiction to deal with Sasol Gas’ conduct, including the jurisdiction to determine the maximum price of gas under the Gas Act, and that competition authorities did not have the power to investigate or determine whether Sasol Gas had engaged in excessive pricing.
The Commission contended that it had the statutory power to investigate complaints it received and to issue summons as part of its investigations.
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