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Review 7 Years On

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The Decision

Decision Comment

*** UPDATED *** 12th May 2012

For those that need to know of our experience in the Nationwide Poles vs Sasol Price Discrimination matter, look to the left and start working from the "Background" link downwards. We have tried to make this as logical as possible.
Seven years after our disagreement with Sasol concerning their pricing practices, it has become time to review what happened. The link "Review 7 Years On" the left takes you to our thoughts. These views are somewhat academic in nature and will probably be of interest to commentators and researchers of Competition Law in general. For this reason, the review does not traverse our previous views on the merits or the evidence. These remain unaltered in order to preserve the integrity of the notes as they were originally written.

We have been very much surprised by the considerable amount of comment and analysis of our efforts in seeking fair and competitive pricing. It seems from internet searches that our case has become something noteworthy and deserving of competition law commentary. This we never expected.

Our efforts were the first to highlight the unlawful actions of Sasol. The anti-competitive actions of our opponent in other markets have since come public knowledge. We recall reading that unlawful competitive actions in a market are indicative of a propensity to do the same in other markets. With this we agree and time has proven this view to be substantially correct at least in the Sasol circumstance.

Whilst we can not be considered as legally trained, our credentials as commentators are perhaps unique. While many lawyers have not spent time in the dirty world of commerce, we have worked and competed in both the world of the dominant supplier as well as the small business. We have intimate and actual (rather than theoretical) experience of how competitive positioning affects others and why this works. At times we were accused of industrial espionage following certain lines of enquiry in the request for evidence from Sasol. This was never so, we merely adduced what was most probable based on our experience and followed these thoughts to their logical conclusion.

We have no hidden agenda and have accepted the outcome of the Nationwide Poles vs Sasol judgement. We do however continue to seek the attainment of a free and fair economic system, one good for all its participants.

We have contacted Sasol to request that the documentation of the matter be made available to an academic institution for incorporation into their law library. Those calls have not been returned. Given the interest in this case we feel the documentation should be available for posterity. And we have tried unsuccesfully to make it so available. Given seven years on, we hardly think that any evidence or detail discovered could be still of a strategic or vital business nature.

But above all what really hurts is this. The business employed about 40 people. When the business closed, the impact of the closure was devastating to the local community from which we drew our staff. And indirectly about 200 people were suddenly left without any income and very little prospect of finding alternative employment. Many have since died, some from AIDS, others from TB and others simply as an indirect consequence of a resulting loss of hope. The human cost has been terrible. This is the effect of anti-competitive behaviour. And the root causes of such suffering should never be permitted to continue.

That's why we had to finish this final chapter and review for ourselves the part we played. We needed to let others know what happened in the real world and the direct costs in human terms of anti-competitive behaviour. Competition Law is not a theoretical construct or playground of the dominant supplier and their lawyers. Competition law directly affects real people in real ways. Caveat Justice, when when considering Competition Cases, the knock on effects of competition judgements may be as lethal as a death sentence to innocent employers /ees. And for this reason, competition cases deserve equal consideration.

We hope that our jurists will begin to understand the vital and necessary roles they must execute in competitive matters. We hope too that they will never decide lightly or without full consideration of all the evidence (complex and substantial though it may be) or without an understanding of the implications inherent in their their rulings or work. This work is far too important to be afflicted by political tension between the authorities or by dominant personalities involved in the processes.

We can only affect the future and learn from the past. Present actions should be determined by what we want the future to be. And for that reason there's no time like the present. Focus on what we want the outcomes to be and act consistently, ethically and purposefully toward that end. A little less talk and a bit more doing that which is right. And that's how a better life for all will be achieved.

With our compliments;

Nationwide Poles & Jim Foot

Updated 12th May 2012

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Disclaimer: This site does not profess to offer legal assistance or interpretation. It’s content reflects the view and experience gained by of the author during a hearing at the Competition Tribunal of South Africa. It may help you to figure out what happens & why.