Sasol South Africa Ltd v Vitol Emerald Bidco (Pty) Ltd and Others (LM196Mar23) [2023] ZACT 78 (6 December 2023)
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...
Source-derived case information.
- Citation
- [2023] ZACT 78
- Parties
- Applicant: Sasol South Africa Ltd; Respondent: Vitol Emerald Bidco (Pty) Ltd; Respondent: Engen Ltd; Respondent: Competition Commission of South Africa
- Court
- Competition Tribunal
- Jurisdiction
- South Africa
- Case Number
- LM196Mar23
- Procedural Posture
- Merger Intervention Application / Pre Hearing Order
- Outcome
- 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.
- Judges
- M Mazwai
- Legal Topics
- Merger Intervention, Local Procurement Remedy, Competition Act Section 53, Confidential Information Access
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sasol South Africa Ltd
Applicant
Vitol Emerald Bidco (Pty) Ltd
Respondent
Engen Ltd
Respondent
Competition Commission of South Africa
Respondent
Procedural Posture
Merger Intervention Application / Pre Hearing Order
Legal Issues
- 1 Whether Sasol should be granted leave to intervene in the merger proceedings before the Tribunal.
- 2 The scope and limitations of Sasol's participation in relation to the local procurement remedy proposed by the Commission.
- 3 The extent to which Sasol's participation may include access to confidential documents and the right to make submissions and call witnesses.
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...
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.
Full Case Text
Judgment text and source record
21 paragraphs
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