The marathon case, in which Botswana Ash (Botash) has lodged a complaint with the South African Competition Commission that its American competitor, American Natural Soda Ash Corperation (Ansac), is a price fixing cartel is expected to drag even longer.
The case is currently the oldest case on the books of the South African Competition Commission and indications are that it will be sometime before the competition tribunal gets to hear the merits of the complaints.
In the latest development in the seven-year saga over allegations that the American Natural Soda Ash Corporation (Ansac) is a price-fixing cartel, Ansac has lodged a notice with the competition appeal court.
The appeal, due to be heard later this year, is against the tribunal’s decision to dismiss Ansac’s application to have Botswana Ash (Botash) and its law firm, Webber Wentzel Bowens, removed from the case brought against Ansac by the competition commission.
Botash lodged the original complaint against Ansac. After an investigation, the commission decided to pursue the case. Botash is now participating as an intervener.
In its latest tribunal application, Ansac claimed that Webber Wentzel Bowens had included Daryl Dingley in its Botash legal team. In 2001, Dingley worked at the commission and participated in the confidential settlement talks between the commission and Ansac, which were later abandoned.
Since he might have had access to confidential issues as a commission employee, Ansac argued, Webber Wentzel Bowens and Botash might now be privy to confidential facts, which would prejudice the fair hearing of the case. Ansac requested that Botash be disqualified as an intervener and that Webber Wentzel Bowens be removed as attorneys.
In its reasons for dismissing this application, the tribunal last week stated that Ansac had established nothing more than a “possibility of harm” and that this was insufficient to establish a case for unfairness.
The tribunal said: “Our law requires proof of substantial unfairness.” It added that Ansac had failed to show that its constitutional rights were being infringed irredeemably.
In a related development, Neil Hellman, the chief executive of GHC Group, which imports soda ash from Ansac, has issued a statement claiming that Ansac’s access to high-grade soda ash deposits, economies of scale and operational efficiencies enabled it to offer highly competitive prices to local consumers.
He stressed that Ansac was not a cartel but a cost-saving joint venture.
In terms of competition legislation, the four US-based companies that make up Ansac can co-operate in a joint venture but they are not allowed to agree on prices.