FFS Refiners (Pty) Ltd and Eskom EB Cochrane South Africa (Pty) Ltd / EThekweni Municipality National Electricity Regulator (64/CR/SEP02) [2003] ZACT 9 (21 February 2003)

FFS Refiners (Pty) Ltd and Eskom EB Cochrane South Africa (Pty) Ltd / EThekweni Municipality National Electricity Regulator (64/CR/SEP02) [2003] ZACT 9 (21 February 2003)

The Tribunal upheld all exceptions to the complaint referral, finding that the complainant failed to meet the required pleading standard. The complaint did not adequately allege Eskom's dominance in the relevant market, as it conflated dominance in electricity supply with dominance in the broader energy market without factual linkage. Allegations of selling below marginal or average variable cost were unsupported by facts enabling such an inference, and mere price differences do not suffice. The complaint failed to allege equivalent transactions or a substantial lessening of competition necessary for price discrimination. Claims under sections 5(1), 8(c), and 8(d)(i) were similarly...

Citation
[2003] ZACT 9
Parties
Applicant: FFS Refiners (Pty) Ltd; Respondent: Eskom; Respondent: EB Cochrane South Africa (Pty) Ltd; Respondent: EThekweni Municipality; Respondent: National Electricity Regulator
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
21 February 2003
Case Number
64/CR/Sep02
Procedural Posture
Exception Application / Ruling on Exceptions to Complaint Referral
Outcome
All exceptions to the complaint referral are upheld. The complainant is granted 20 days to cure the defects. Costs are awarded to the first respondent, including costs for two legal representatives.
Judges
N. Manoim, M. Holden, P Maponya
Legal Topics
Abuse of Dominance, Predatory Pricing, Price Discrimination, Vertical Relationships, Market Definition
Competition Law Abuse of Dominance Predatory Pricing Price Discrimination Vertical Relationships Market Definition

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Parties

FFS Refiners (Pty) Ltd

Applicant

Eskom

Respondent

EB Cochrane South Africa (Pty) Ltd

Respondent

EThekweni Municipality

Respondent

National Electricity Regulator

Respondent

Procedural Posture

Exception Application / Ruling on Exceptions to Complaint Referral

Legal Issues

  1. 1 Whether the complaint referral contains sufficient allegations to sustain claims under sections 8(c), 8(d)(i), 8(d)(iv), 9(1), and 5(1) of the Competition Act.
  2. 2 Whether Eskom is properly defined as a dominant firm in the relevant market.
  3. 3 Whether the alleged conduct amounts to selling below marginal or average variable cost under section 8(d)(iv).

Ratio Decidendi

The Tribunal upheld all exceptions to the complaint referral, finding that the complainant failed to meet the required pleading standard. The complaint did not adequately allege Eskom's dominance in the relevant market, as it conflated dominance in electricity supply with dominance in the broader energy market without factual linkage. Allegations of selling below marginal or average variable cost were unsupported by facts enabling such an inference, and mere price differences do not suffice. The complaint failed to allege equivalent transactions or a substantial lessening of competition necessary for price discrimination. Claims under sections 5(1), 8(c), and 8(d)(i) were similarly...

Court Disposition

All exceptions to the complaint referral are upheld. The complainant is granted 20 days to cure the defects. Costs are awarded to the first respondent, including costs for two legal representatives.

Orders

  • All exceptions to the complaint referral are upheld.
  • The complainant is granted 20 days from the date of this decision to cure the defects in the complaint referral.