Sasol South Africa Ltd v Vitol Emerald Bidco (Pty) Ltd and Others (LM196Mar23) [2023] ZACT 78 (6 December 2023)
- Citation
- [2023] ZACT 78
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- M Mazwai
- Case number
- LM196Mar23
More details
- Court
- Competition Tribunal
- Panel
- M Mazwai
- Case number
- LM196Mar23
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal granted Sasol leave to intervene in the merger proceedings, finding that Sasol has a direct and substantial interest in the local procurement remedy proposed by the Commission, particularly in light of the Procurement Framework agreed with Vitol and Engen. The Tribunal limited Sasol's participation to making written and oral submissions on the appropriateness and adequacy of the local procurement remedy, ensuring that such remedy aligns with and does not compromise the Procurement Framework. Sasol's advisors were granted access to relevant confidential information, subject to confidentiality undertakings, and Sasol was afforded procedural rights to make submissions, call witnesses, and produce documents, all within the Tribunal's directives and timetable.
Court disposition
Sasol is granted leave to intervene in the merger proceedings, with participation limited to submissions on the local procurement remedy and subject to procedural and confidentiality conditions.
Orders
- Sasol is granted leave to intervene in the merger proceedings before the Tribunal under case number LM196Mar23.
- Sasol's participation is limited to making written and oral submissions on the appropriateness and adequacy of the local procurement remedy proposed by the Commission, in light of the Procurement Framework.
- Sasol's independent legal representatives and competition economic experts may access the confidential version of the Commission's large merger report and record where it deals with the Participation Scope, subject to confidentiality undertakings.
- Sasol may make written submissions within the time periods stipulated in any Tribunal directive.
- Sasol may make oral submissions at the merger hearing, subject to time limitations imposed by the Tribunal.
- Sasol may apply for the calling of witnesses, cross-examination, and production of relevant documents at the merger hearing, subject to the Tribunal's determination and timetable.
02
Material facts
Parties
Sasol South Africa Ltd
ApplicantVitol Emerald Bidco (Pty) Ltd
RespondentEngen Ltd
RespondentCompetition Commission of South Africa
Respondent03
Procedural history
Posture
Merger Intervention Application / Pre Hearing Order
04
Questions and positions
Legal issues
- 01
Whether Sasol should be granted leave to intervene in the merger proceedings before the Tribunal.
- 02
The scope and limitations of Sasol's participation in relation to the local procurement remedy proposed by the Commission.
- 03
The extent to which Sasol's participation may include access to confidential documents and the right to make submissions and call witnesses.
Party arguments
- Applicant
- Sasol sought leave to intervene in the merger proceedings, arguing that its interests are directly affected by the proposed local procurement remedy and the Procurement Framework agreed with Vitol and Engen. Sasol contended that its participation is necessary to ensure that the remedy aligns with the Procurement Framework and does not compromise its terms.
- Respondent
- Vitol, Engen, and the Competition Commission agreed to Sasol's intervention, subject to limitations restricting Sasol's participation to submissions on the appropriateness and adequacy of the local procurement remedy in light of the Procurement Framework. They further agreed on the terms of access to confidential information and the procedural rights Sasol would have.
05
Court’s reasoning
Legal principles
- 01
Competition Act 89 of 1998, section 53(1)(c)(v)
A party with a direct and substantial interest in merger proceedings may be granted leave to intervene, subject to the Tribunal's discretion and the scope of participation being defined.
- 02
Competition Tribunal Practice and Procedure
Access to confidential information in merger proceedings may be granted to independent legal representatives and experts, provided appropriate confidentiality undertakings are furnished.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal granted Sasol leave to intervene in the merger proceedings, finding that Sasol has a direct and substantial interest in the local procurement remedy proposed by the Commission, particularly in light of the Procurement Framework agreed with Vitol and Engen. The Tribunal limited Sasol's participation to making written and oral submissions on the appropriateness and adequacy of the local procurement remedy, ensuring that such remedy aligns with and does not compromise the Procurement Framework. Sasol's advisors were granted access to relevant confidential information, subject to confidentiality undertakings, and Sasol was afforded procedural rights to make submissions, call witnesses, and produce documents, all within the Tribunal's directives and timetable.
Obiter and limits
- The Tribunal emphasised the importance of balancing the interests of all parties in merger proceedings, particularly where remedies may affect existing commercial arrangements.
- The Tribunal noted that procedural fairness requires that affected parties be given an opportunity to make submissions on remedies that may impact their interests.
Court disposition
Sasol is granted leave to intervene in the merger proceedings, with participation limited to submissions on the local procurement remedy and subject to procedural and confidentiality conditions.
- Sasol is granted leave to intervene in the merger proceedings before the Tribunal under case number LM196Mar23.
- Sasol's participation is limited to making written and oral submissions on the appropriateness and adequacy of the local procurement remedy proposed by the Commission, in light of the Procurement Framework.
- Sasol's independent legal representatives and competition economic experts may access the confidential version of the Commission's large merger report and record where it deals with the Participation Scope, subject to confidentiality undertakings.
- Sasol may make written submissions within the time periods stipulated in any Tribunal directive.
- Sasol may make oral submissions at the merger hearing, subject to time limitations imposed by the Tribunal.
- Sasol may apply for the calling of witnesses, cross-examination, and production of relevant documents at the merger hearing, subject to the Tribunal's determination and timetable.
Source and reliance status
Competition Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Competition Tribunal
Order
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case No.: LM196Mar23
In the matter between:
SASOL
SOUTH AFRICA LTD Applicant And
VITOL EMERALD BIDCO (PTY) LTD First Respondent
ENGEN LTD Second Respondent
COMPETITION
COMMISSION
OF
SOUTH
AFRICA Third Respondent
Panel:
M Mazwai (Presiding Member)
Heard on:
06 December 2023
Decided on: 06 December 2023
ORDER
Further to the submissions made by the Applicant (Sasol) at the pre-hearing on 14 November 2023 and by agreement between the Sasol, and the First Respondent (Vitol), the Second Respondent (Engen) and the Third Respondent (Commission), the Tribunal hereby orders that:
1. Sasol is granted leave to intervene in the above-mentioned merger proceedings before the Tribunal under Tribunal Case Number LM196Mar23 (Commission case number 2023Mar0009), in terms of section 53(1)(c)(v) of the Competition Act 89 of 1998 ("Competition Act").
2. Having regard to the procurement framework in respect of which Sasol, Vital and Engen reached consensus on or about 9 November 2023 relating to the procurement of refined petroleum products by Engen from Sasol's inland South African refineries with effect from 1 July 2024 ("the Procurement Framework"), Sasol's participation in the aforementioned merger proceedings shall be limited to making written and oral submissions on the following issue ("Participation Scope"): The appropriateness and adequacy, in light of the Procurement Framework, of the local procurement remedy proposed by the Commission in paragraph 3.3.1 and Annexure B of the proposed merger conditions set out in the Commission's referral, including, without limitation, the extent to which such remedy aligns with and does not compromise the terms of the Procurement Framework.
3. Sasol's participation in the abovementioned merger proceedings shall include the right and entitlement, to the extent applicable and relevant to the Participation Scope -
3.1 of Sasol's independent legal representatives and competition economic experts ("Sasol's advisors") to access the confidential version of the Commission's large merger report and record where it deals with the Participation Scope, subject to Sasol's advisors furnishing the appropriate confidentiality undertakings;
3.2 to make written submissions to the Tribunal within the time periods stipulated in any Tribunal directive;
3.3 to make oral submissions at the merger hearing at a date and time stipulated by the Tribunal, subject to time limitations imposed by the Tribunal; and
3.4 to make an application for the calling of any witness / witnesses, cross examination and or the production of relevant documents at the merger hearing, which application shall be determined by the Tribunal. This will be done in adherence to the timetable set by the Tribunal for the proceedings before it in respect of the merger hearing, attached as Annexure A to this order, and any subsequent timetable determined by the Tribunal.
Presiding Member
06 December 2023
Ms Mondo Mazwai
Date
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