There was a brief 10 days this year when BP ran the show at the Department of Minerals and Energy, until Sasol once again took over.
An observer at the Competition Tribunal hearing into the proposed Sasol/Engen merger could easily have come to this conclusion after hearing how lawyers for British Petroleum (BP) and its empowerment partner, Masana Petroleum Solutions, had drafted the department’s original application as an intervention against the merger.
The intervention was submitted to the tribunal on June 6, the same day the official in charge, Nhlanhla Gumede, received a draft copy from BP’s lawyers.
This follows testimony two weeks ago by Sasol Oil MD, Ernst Oberholster, that a Sasol/Engen delegation met department officials to express their views. The minerals and energy department subsequently withdrew its intervention on June 17 using in part a draft media statement prepared by Sasol to justify the withdrawal.
Gumede, the chief director of hydrocarbons for the department, who was testifying on behalf of the department, said it had accepted an offer of free assistance from BP’s lawyers owing to a lack of resources.
‘It was a free service that was required and at the time it didn’t look like there was going to be an issue, where clearly it is an issue now.”
Gumede denied there was anything untoward in accepting advice first from BP and then Sasol.
The proposed merger would see Sasol, which currently has a small inland retail share of 10,7%, merge with Engen, the largest player in the inland retail market, with a share of 29,2%.
This would give the joint venture Uhambo a 39,9% inland retail market share, more than double its closest competitor, TotalSA, which has a 16,4% inland market share.
Sasol produces 85% of all refined petroleum in the inland region through its synthetic fuels plant in Secunda and 64% interest in Natref, situated in Sasolburg in the Free State.
Shell, BP, Masana, Chevron and Total have opposed the merger, claiming it would create a dominant market player with access to product and a retail infrastructure.
The opposing oil companies claim their ability to get the product into the profitable inland region is hampered by a lack of road, rail and pipeline capacity and it is likely that the joint venture, Uhambo, could refuse to supply them in an attempt to capture more market share.
Gumede’s intervention application expressed similar views, claiming that the merger would lessen competition and make doing business in South Africa more expensive. Gumede explained to the tribunal that the withdrawal of the intervention did not mean all the department’s concerns had been addressed and that he had hoped these concerns would be taken into account by the tribunal.
‘If their [Sasol’s] interest is, and it has been their indication, that they want to find their own market and they will do anything to do that, it’s really just their strategy that is a concern and the impact of their strategy on the rest of the oil companies,” said Gumede.
Gumede’s application also claimed the department was not satisfied that the empowerment component of the merger would meet the requirements of the Petroleum Product’s Amendment Act of 2003, as the empowerment did not cross the whole of Sasol’s value chain because synthetic fuels were excluded.
The proposed merger would see Sasol and Malaysian oil company, Petronas, which owns 90% of Engen, each acquire 37,5% of Uhambo, with empowerment partners Tshwarisano and Afric Energy Resources receiving a 12,5% stake each.
‘The proposed deal keeps the most lucrative parts of Sasol [the Secunda plant and its technology] from the hands of historically disadvantaged South Africans,” Gumede’s application stated.
The industry was unlikely to see deregulation until after 2010. Gumede claimed that all the oil companies would have to have concluded empowerment transactions worth 25% of the entire value chain before deregulation could be considered.
Gumede initially insisted he had drafted the intervention application himself, claiming that BP’s lawyers had merely provided advice in terms of legal structuring.
But Sasol’s lawyer, Mike van der Nest, produced a copy of a draft e-mailed from BP’s lawyers to the department on June 6, which he claimed was identical to the intervention signed by Gumede on the same day.
Gumede’s cross-examination has been postponed till Monday because the merging parties have asked BP and Masana to disclose the relevant documents. The tribunal hearing is scheduled for completion on November 3.