Sasol Chemical Industries Ltd and Another v Competition Commission

• Jurisdiction: South Africa
• Judge: Davis JP, Molemela AJA and Victor AJA
• Judgment Date: 15 June 2015
• Citation: 2015 (5) SA 471 (CAC)
• Docket Number: 131/CAC/JUN 14
• Hearing Date: 11 December 2014
• Counsel: W Trengove SC (with J Wilson, A Gotz, SW Burger and G Marriott) for the first appellant. DN Unterhalter SC (with A Cockrell SC) for the second appellant. MA Wesley (with M Lekoane) for the respondent (the heads of argument having been drafted by A Subel SC, together with Messrs Wesley and Lekoane).
• Court: Competition Appeal Court

Davis JP (Molemela AJA and Victor AJA concurring):

Introduction

[1] This case concerns the meaning and the scope of s 8(a) of the F Competition Act 89 of 1998 (the Act), which provides that a dominant firm may not 'charge an excessive price to the detriment of consumers'. Section 1(1) defines an 'excessive price' as a price for a good or service which '(aa) bears no reasonable relation to the economic value of that good or service; and (bb) is higher than the value referred to in subparagraph (aa)'. G

[2] While economists define excessive prices as those which are significantly and persistently above the competitive level, the translation of this seemingly simple statement into law and consequently the enforcement of s 8(a) of the Act are immensely complex. David Lewis Thieves at the Dinner Table: Enforcing the Competition Act (Jacana 2012) at 177 notes H that excessive pricing in competition law is fraught with complexity and controversy:

'Pricing power derives from market power. However, the mere possession of market power is not contrary to competition law. Indeed, one I important source of market power is innovation and other pro-competitive conduct. The rents derived from the possession of market power will, in most circumstances, sooner or later attract new entrants, the more so if the dominant incumbent takes excessive advantage of its privileged position. And so the effort to acquire market and, therefore, pricing power and the attention it attracts from rivals are an important driver of the competitive process.' J

Davis JP (Molemela AJA and Victor AJA concurring)

A A similar sentiment is articulated by O'Donoghue & Padilla The Law and Economics of Article 102 TFEU 2 ed (Hart 2013) at 737:

'The use of Article 102 TFEU to curb excessive prices has been criticised on several different levels. A first basic objection is that no generally accepted criterion exists in the decisional practice and case law to B determine when price are excessive. Further, even if a criterion, or series of criteria, could be agreed upon as a benchmark, determining an excessive price in practice is extremely complex and subject to a number of difficulties. A second criticism is that prices above marginal cost are common and necessary in many industries where high profits are necessary to recover large up-front capital and other fixed costs. C Third, any policy on excessive prices is likely to yield incorrect predictions in many instances and the costs of such errors are likely to be higher than the costs of allowing certain excessive prices to escape censure. Fourth, little or no guidance is offered in the decisional practice and case law on what might constitute objective justification for a price that exceeds the relevant criterion for determining an D excessive price. Finally, devising effective remedies in excessive pricing cases raises difficult issues.'

This case compels this court to engage with all of this complexity and controversy which are inherent in the doctrine of excessive pricing.

The factual matrix E

[3] The case involves an appeal by appellant [‡] against the decision of the Competition Tribunal (the Tribunal) that it contravened s 8(a) of the Act by charging excessive prices for propylene and polypropylene (PP) F from 2004 to 2007. The production of purified propylene is dependent on the production of purified feedstock propylene. Polypropylene is produced from purified propylene. Appellant is the only significant producer of purified propylene in South Africa.

[4] In August 2010 respondent (the Commission) referred three complaints G against appellant and Safripol (Pty) Ltd to the Tribunal, submitting that both companies had contravened the Act. One of the complaints was a price-fixing complaint. This was settled in 2010. The two remaining complaints concern forms of excessive pricing which are the subject-matter of this appeal.

H [5] In essence the Commission contends that appellant charged excessive prices for PP within the period 2004 to 2007. During this period appellant was dominant in the market for the supply of PP to domestic customers in South Africa, having a market share between 64% and 80% over the complaint period. According to the founding affidavit I deposed to by Mr Lesofe on behalf of the Commission:

'Up until 2008, appellant had the capacity to produce approximately 228 000 tonnes of PP per year. As from January 2008, Sasol's capacity has expanded to approximately 528 000 tonnes per year.

Davis JP (Molemela AJA and Victor AJA concurring)

Safripol (Pty) Ltd has the capacity to produce approximately A 120 000 tonnes of PP per year.

Both appellant and Safripol sell PP in South Africa, primarily to plastic product manufacturers. However, appellant and Safripol together produce more polypropylene than is required by customers in South Africa. Domestic demand for PP has remained constant since 2004 at approximately 220 000 tonnes per year. B

Consequently, appellant (and to a lesser extent Safripol) exports significant quantities of polypropylene both to other regions of Africa and to various destinations overseas. Sasol's largest export markets are West Africa and China. Appellant's export sales are made on a costs and freight (CFR), or costs, insurance and freight basis. . . . C

According to the Commission appellant charges domestic customers of PP different prices for different grades, and offers customer various discounts, but derives all of its domestic prices for PP from an import parity price (IPP) calculation it performs on a weekly basis. In other words, its prices to South African consumers of PP are IPP-based. The D Commission contends that these prices are up to 32% higher than Sasol's export prices.'

[6] According to the Commission, the economic value of PP sold to domestic customers in South Africa was the price at which it concluded E its export sales. This price is excessive because it bore no reasonable relation to the economic value of PP, being 32% higher than export prices to China and 20% higher than Hong Kong CFR prices. The Commission contends that the difference was unreasonable and detrimental to downstream consumers.

[7] In addition the Commission submitted that appellant charged excessive F prices to Safripol for purified propylene during the period 2004 – 2007. Again it was contended that appellant was dominant in the market for the supply of propylene to domestic customers in South Africa, having a market share over the complaint period of more than 90%. The Commission contends that the economic value of propylene G can be derived by taking appellant's PP export prices, that is, the price that the Commission considered to be the competitive PP price, and then deducting a standard margin. According to the Commission, this calculation showed that the price for propylene charged to Safripol was 55% above the economic value.

[8] The economic value of propylene could also be measured by H predictions made by appellant in 2003 for the price of propylene. Appellant had predicted the price of purified propylene in determining the profitability of opening a new PP plant (which opened in 2008) and I which was part of the so-called Project Turbo. Appellant's actual purified propylene prices turned out to be 326% higher than the calculation used in determining the profitability of Project Turbo. Accordingly appellant's prices bore no reasonable relation to the economic value and were detrimental to downstream consumers. I turn to deal in more detail with the relevant products. J

Davis JP (Molemela AJA and Victor AJA concurring)

Propylene A

[9] Feedstock propylene is a by-product of liquid fuels produced in an oil refinery. It is a raw and impure propylene gas which has different potential alternative uses, two of which are relevant to the present dispute. The first is to return the feedstock propylene to the fuel pool B where it is then used in the production of fuel. The second is to purify the propylene for use in the production of PP. The latter is a thermoplastic polymer, which is a raw material used in the production of a wide range of plastic products. Appellant buys the propylene feedstock that it uses to produce purified propylene and PP from a fellow subsidiary, C Sasol Synfuels (Pty) Ltd (Synfuels), at a low price. Feedstock propylene is produced in many oil refineries that employ fuel-upgrading processes and by Synfuels in its synthetic-fuels production. In both cases, it is a by-product of petrol or fuels production. Its value is calculated from its value in alternative uses, which involves the costs of the conversion and the price of that product.

D [10] Synfuels produces liquid fuels from coal. Feedstock propylene is a by-product of this process. As a result of a unique process for the production of liquid fuels from coal, Synfuels suffers a disadvantage when compared to conventional oil refineries in the use of its feedstock propylene. E Conventional oil refineries can employ feedstock propylene more productively and profitably than Synfuels in the production of fuel, given their different processes to achieve this end. Conventional oil refineries use an alkylation process whereas Synfuels uses a cat-poly process. The alkylation process makes more productive and profitable use of the feedstock propylene than the cat-poly process, with the result F that feedstock propylene is less valuable in the production of fuels for Synfuels than it is for the conventional oil refineries.

[11] Mr MacDougall, chief business analyst at the Sasol Group, described the position as follows:

'The important difference between Sasol Synfuels and the conventional G refinery is the value of the feedstock propylene thus derived. This emerges from the difference in the petrochemical processes. This difference to a conventional refinery is due to...