Anthony Gotz SC and Lucelle Buchler acted for KayaGas
On 30 June 2023, the Competition Tribunal dismissed a complaint of price-fixing against five companies involved in the supply of LPG (liquefied petroleum gas) in cylinders.
The Competition Commission referred a complaint of price-fixing to the Tribunal, essentially alleging that the five LPG firms had contravened section 4(1)(b)(i) of the Competition Act No. 89 of 1998. The respondents were alleged to have agreed to increase the refundable deposit fee payable for LPG cylinders from R150 to R300. The increase had taken effect in June 2015.
Following a hearing in 2022, the Tribunal found that the conduct which the LPG firms were accused of could not be associated with a “hardcore cartel”.
The Tribunal thus dismissed the case of alleged price fixing against the five LPG firms.
In summary, the Tribunal found that even if the LPG firms were assumed to be competitors for the supply of cylinders, their conduct was not the type of conduct envisaged to be prohibited by section 4(1)(b)(i) of the Act.
The public version of the reasons can be accessed on the Tribunal’s website at https://www.comptrib.co.za/case-detail/8557.
Overview of Arguments
The Commission alleged that during meetings convened by the South African Petroleum Industry Association (“SAPIA”), Totalgaz Southern Africa (Pty) Ltd; Oryx Oil South Africa (Pty) Ltd; Easigas (Pty) Ltd; and African Oxygen Limited concluded an agreement to increase the deposit fees on LPG cylinders for first time buyers, in contravention of section 4(1)(b)(i) of the Act. The alleged agreement resulted in the firms simultaneously increasing the deposit fee paid by first time buyers for cylinders around June 2015, to R300 for cylinders ranging in sizes of 9kg – 48kg.
KayaGas (Pty) Ltd, the third respondent (represented by Anthony Gotz SC and Lucelle Buchler), was not a member of SAPIA and had not attended the meetings at which the agreement was said to have been reached. The Commission thus alleged that KayaGas had engaged in a concerted practice by increasing the deposit fee to R300.
The LPG firms argued that their decision to adopt the same increase in the cylinder deposit fee was not due to them being competitors but, rather, was due to the “vertical relationship” between them i.e. the relationship between a firm and its suppliers, its customers or both, as participants in the Cylinder Exchange Program (“CEP”). In terms of the CEP, a customer may conveniently return to any LPG firm any empty gas cylinder (regardless of which firm owned the cylinder) in exchange for a full one. The LPG firms thus argued that they could not be found to have contravened section 4(1)(b)(i) of the Act, which prohibits firms that are competitors from entering into or participating in agreements or concerted practices which involve conduct such as price fixing. The Commission had thus not met the essential threshold requirement for section 4(1)(b), namely that the LPG firms are competitors in the supply of LPG cylinders.
In addition, the respondents argued that even if the Tribunal were to find that the LPG firms were competitors in the supply of cylinders, the CEP delivered benefits to consumers and/or new/smaller entrants to the market and was not designed to restrict competition in the sale of LPG. Rather the CEP facilitated the increased sale of LPG by a rapid return of cylinders to each wholesaler and necessitated a uniform deposit fee for its smooth functioning. The respondents further argued that this was not the type of conduct that, properly characterised, is contemplated within the scope of section 4(1)(b) of the Act which prohibits hard core cartels.
The Tribunal’s Reasons
The Tribunal adopted the approach that even if it was assumed, for argument’s sake, that the deposit fee was a component of the price of LPG and that the respondents were competitors when they increased the deposit uniformly at the same time, their conduct was not the type of conduct that section 4(1)(b)(i) sought to prohibit. The Tribunal said that was so because the CEP was found to deliver benefits to consumers and firms alike:
“Once first-time buyers have paid their cylinder deposit, they have the convenience of purchasing LPG from any supplier in exchange for an empty cylinder. Firms benefit from the CEP because they save on working capital and variable costs and they can sell more LPG because cylinders are returned to them more quickly. Small firms tend to gain the most from the CEP because they need not invest in a vast distribution network, are able to piggy-back on the larger players and compete for market share. A uniform fee is necessary for the effective functioning of the CEP. A uniform fee facilitates the smooth administration for the exchange of cylinders and serves to prevent increases in costs for wholesalers relative to their competitors. It also serves to prevent a cash flow crunch for smaller players. The Respondents have explained why a uniform fee limits opportunistic hoarding and prevents lower fee cylinders from being disproportionately targeted by illegal re-fillers…
… Even if we were to assume in the worst-case scenario – namely that the deposit was a component of the “price” of LPG and the Respondents were in a horizontal relationship – there are clear benefits flowing from the CEP which delivers benefits for both consumers and firms in the CEP. A uniform fee within the CEP delivers benefits to both consumers and firms alike.”
In conclusion, the Tribunal did, however, note that this type of conduct could potentially fall within the ambit of section 4(1)(a) of the Act. It found that: “Recall that section 4(1)(a) does not prohibit agreements, arrangements, understandings, or concerted practices amongst competitors on a per se basis. It is a rule of reason provision, where a substantial lessening of competition may be outweighed by pro-competitive gains. Under this provision the Commission would bear the onus to prove the conduct and that it led to a lessening of competition. The respondents would then be entitled to justify their arrangements on technological, efficiency and other pro-competitive grounds. However, this was not the case mounted by the Commission. The Commission persisted in pursuing a section 4(1)(b) case.
The Commission’s case against the respondents was, however, purely one of an alleged contravention of section 4(1)(b). It had not pleaded a breach of section 4(1)(a) at all, with the result that the respondents could not be held liable for any alleged contravention of section 4(1)(a) either.
