Sasol Gas (Pty) Ltd v The Competition Commission of South Africa and Others

Sasol Gas (Pty) Ltd was charged prices for piped gas that it sold to customers following a maximum pricing determination by the National Energy Regulator of South Africa (NERSA) under section 21(1)(p) of the Gas Act 48 of 2001. The Industrial Gas Users Association of Southern Africa (IGUASA) and Egoli Gas (Pty) Ltd filed complaints with the Competition Commission alleging that Sasol was abusing its dominance by charging excessive prices in breach of section 8(1)(a) of the Competition Act 89 of 1998. The complaints alleged that the new NERSA pricing methodology, based on global spot pricing, permitted Sasol to charge unprecedented prices despite sourcing gas at substantially lower costs from Mozambique under long-term agreements. The Commission decided to investigate the complaints under section 8(1)(a) of the Competition Act and, when Sasol failed to respond to a request for information, issued a summons. Sasol brought a review application to set aside the Commission's decisions on the grounds that the Commission lacked jurisdiction because NERSA had exclusive jurisdiction under the Gas Act to determine gas pricing, and that the investigation was therefore irrational and unlawful.

• Whether the Competition Commission has jurisdiction to investigate excessive pricing complaints against Sasol despite NERSA having approved maximum gas prices under the Gas Act
• Whether section 21(1)(p) of the Gas Act confers exclusive jurisdiction on NERSA over gas pricing, thereby excluding the concurrent jurisdiction provisions of section 3(1A) of the Competition Act
• Whether the Commission's decision to investigate and issue a summons was irrational or unlawful
• The proper interpretation of section 3(1A) of the Competition Act establishing concurrent jurisdiction where another regulatory authority has jurisdiction over conduct regulated under Chapters 2 or 3 of the Competition Act
• The application of statutory interpretation principles, including the genera/ia special/bus non derogant maxim, where there appears to be a conflict between sector-specific legislation and general competition legislation

The review application was dismissed. The decisions of the Competition Commission to investigate the complaints lodged by IGUASA and Egoli Gas and to issue the summons were upheld. Sasol Gas was ordered to pay the costs of the first and second respondents, including the costs of two counsel where applicable.

Section 3(1A) of the Competition Act establishes concurrent jurisdiction for the Competition Commission and competition authorities over conduct regulated under Chapters 2 or 3 of the Act, even where another regulatory authority has jurisdiction over the same conduct, unless that jurisdiction is expressly excluded by legislation. The Gas Act does not expressly exclude the Competition Commission's jurisdiction. The two statutes are reconcilable: NERSA's function under section 21(1)(p) of the Gas Act is to approve maximum prices where there is inadequate competition, applying the considerations in the Gas Act and Regulations; the Commission's function under section 8(1)(a) of the Competition Act is to determine whether actual prices charged are excessive by applying the different considerations set out in section 8(3) of the Competition Act. The legislative intent in introducing section 3(1A) and repealing section 3(1)(d) was to establish general jurisdiction of competition authorities in all competition matters and to ensure that specialist competition institutions with appropriate expertise, powers and remedies deal with prohibited practices. Sector-specific regulatory approval of conduct does not immunise that conduct from scrutiny under the Competition Act for potential contraventions of its prohibited practice provisions. The unitary approach to statutory interpretation requires courts to consider both the language used and the context (including the statute's purpose, scope and background) together from the outset, rather than focusing exclusively on one statute where two appear to overlap.

Davis AJA in his concurring judgment observed that going forward, where concurrent jurisdiction exists, the Competition Commission when confronted with determining whether a price is excessive under section 8(1)(a) should take account of NERSA's considerations and determination in setting a maximum gas price. The NERSA determination would form part of the broad set of considerations to determine whether the price charged breaches section 8(1)(a), and an argument by the respondent that it followed NERSA's approved price would constitute a weighty consideration in the ultimate determination by the Competition Tribunal. Spilg AJA noted that the existence of a Memorandum of Agreement between regulators pursuant to section 3(1A)(b) read with sections 21(1)(h) and 82 of the Competition Act is relevant to understanding how concurrent jurisdiction should operate in practice, though the primary legislation must first be interpreted to determine if concurrent jurisdiction exists. The court also observed that exempting conduct approved by another regulator from Competition Act scrutiny would deny complainants access to important remedies available under the Competition Act, including interdicts, orders to supply on reasonable terms, declarations that conduct is prohibited (enabling follow-on damages claims under section 65), and other wide-ranging remedial powers - an outcome that would be inconsistent with the legislative purpose.

This is an important judgment on concurrent jurisdiction under South African competition law. It confirms the wide reach of section 3(1A) of the Competition Act and establishes that sector-specific regulatory approvals (such as NERSA's maximum price determinations) do not oust the jurisdiction of competition authorities to investigate whether conduct constitutes a prohibited practice under the Competition Act. The judgment clarifies that different regulatory regimes can apply concurrently to the same conduct, with each regulator applying different statutory considerations and tests. It reinforces the supremacy of the Competition Act in matters of anti-competitive conduct and the specialist role of competition institutions. The judgment provides important guidance on statutory interpretation principles in South African law, particularly the unitary approach to interpretation requiring consideration of both language and context from the outset, and the presumption against implied repeal of existing law. It also addresses the constitutional framework of cooperative governance between different regulatory authorities. Going forward, the judgment suggests that where concurrent jurisdiction exists, regulators should take account of each other's determinations as part of the broader set of considerations, without one determination being determinative of the other's inquiry.