Mlonzi and Another v Eskom Holdings Soc Limited and Another (IR1360CT22) [2023] ZACT 61; [2024] 1 CPLR 2 (CT) (2 August 2023)

Mlonzi and Another v Eskom Holdings Soc Limited and Another (IR1360CT22) [2023] ZACT 61; [2024] 1 CPLR 2 (CT) (2 August 2023)

The Tribunal found that Eskom is a dominant monopsonic buyer in the market for fuel oil procurement, consuming approximately 95% of available fuel oil in South Africa. However, the Applicants failed to establish prima facie evidence of anti-competitive effects resulting from Eskom's exclusionary conduct. While commercial harm to Econ Oil was alleged, competition law requires evidence of harm to competition or market foreclosure, which was not demonstrated. Eskom's decision to de-register Econ Oil was justified by the supplier's refusal to cooperate with investigations into overcharging and improper conduct, including attempts to influence procurement processes and employees. The Tribunal...

Citation
[2023] ZACT 61
Parties
Applicant: Nothemba Mlonzi; Applicant: Econ Oil & Energy (Pty) Ltd; Respondent: Eskom Holdings SOC Limited; Respondent: The Competition Commission of South Africa
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
2 August 2023
Case Number
IR1360CT22
Procedural Posture
Interim Relief Application / Reasons for Decision on Interim Relief Application
Outcome
Application for interim relief dismissed.
Judges
M Mazwai, T Ngcukaitobi, F Tregenna
Legal Topics
Abuse of Dominance, Exclusionary Conduct, Buyer Power, Interim Relief, Administrative Action
Competition Law Commercial and Corporate Abuse of Dominance Exclusionary Conduct Buyer Power Interim Relief Administrative Action

Case Brief

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Parties

Nothemba Mlonzi

Applicant

Econ Oil & Energy (Pty) Ltd

Applicant

Eskom Holdings SOC Limited

Respondent

The Competition Commission of South Africa

Respondent

Procedural Posture

Interim Relief Application / Reasons for Decision on Interim Relief Application

Legal Issues

  1. 1 Whether Eskom's de-registration of Econ Oil as a supplier constitutes an abuse of dominance under section 8(1)(c) of the Competition Act.
  2. 2 Whether the Applicants have established prima facie evidence of a prohibited practice justifying interim relief under section 49C.
  3. 3 Whether Eskom's conduct was objectively justified on technological, efficiency or pro-competitive grounds.

Ratio Decidendi

The Tribunal found that Eskom is a dominant monopsonic buyer in the market for fuel oil procurement, consuming approximately 95% of available fuel oil in South Africa. However, the Applicants failed to establish prima facie evidence of anti-competitive effects resulting from Eskom's exclusionary conduct. While commercial harm to Econ Oil was alleged, competition law requires evidence of harm to competition or market foreclosure, which was not demonstrated. Eskom's decision to de-register Econ Oil was justified by the supplier's refusal to cooperate with investigations into overcharging and improper conduct, including attempts to influence procurement processes and employees. The Tribunal...

Court Disposition

Application for interim relief dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.