Tuesday, April 20, 2021

Botash locked in expensive international marathon case

Botswana Ash, who have filed a marathon case of anti-competitive behavior against ANSAC ÔÇô the US soda ash exporting conglomerate, may find itself saddled with a huge legal bill and no prospects of recourse in sight as the American giant seem set to use its financial muscle to drag the case.
The case relates to allegations of anti-competitive behaviour that were brought to the South African competition commission by Botswana Ash (Botash). Botash initially alleged that Ansac was not only a cartel but was also charging predatory prices. It subsequently dropped the predatory pricing allegation.

To operate as a cartel is a contravention of the Competition Act.
After investigation, the commission found that Ansac was indeed contravening the Competition Act and referred the matter to the competition tribunal. Nine years and several million Pula of legal fees later, the tribunal has still not had a chance to look at the merits of the case. Ansec is making sure that technical aspects of the case are dragged through every court in the land in what is believed to be a desperate attempt to avoid a tribunal hearing.
The South African media this week reported that at this stage it looks as though it will be some time next year before Ansac has to discuss the merits of a case that was brought to the competition authorities all the way back in 1999.

Earlier this year, there was a flurry of excitement within the corporate legal community following the ruling by the competition appeal court (CAC) which gave rise to hopes that the oldest case on the books of the competition authorities could be argued before the competition tribunal in the foreseeable future.

The CAC had dismissed Ansac’s appeal against the competition tribunal’s decision to reject a request by Ansac that Botswana Ash (Botash) be removed as an intervener or that Webber Wentzel Bowens be disqualified from acting for Botash.

The CAC was to hear Ansac’s leave to appeal only in April, which was when all the CAC judges were available. From the CAC appeal Ansac was expected to petition the supreme court of appeal. If the supreme court of appeal rejects Ansac’s petition, then Ansac could approach the constitutional court.

Chasing this technical sideshow through the courts of South Africa is expected to ensure that it is another year or two before the case gets back to the competition tribunal where the merits of the anticompetitive allegations against Ansac can be aired.

The allegations of anticompetitive behaviour were first brought to the competition authorities in 1999. Because of the constant stalling tactics employed by Ansac, the merits, or otherwise, of this case have never been discussed in public.


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