Transnet must hand over documents containing commercially sensitive information within days. (Alfonso Nkunjana/News24)
- Transnet has 15 days to release documents containing confidential and commercially sensitive information to Sasol.
- This information will help Sasol in its case as to why it did not shortchange Transnet by about R815 million.
- The dispute is just one of several that arose after Transnet ended its long-term tariff agreement in 2020.
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The High Court in Pretoria has ordered Transnet to share confidential information with Sasol to help the synthetic fuel company defend an R815 million lawsuit.
A large amount of documentation must be made available to Sasol within 15 days. These include commercially sensitive information, such as data about the costs, revenues and resources associated with the operation of oil pipelines, in particular the Durban to Sasolburg crude oil pipeline.
Sasol will use this information to litigate its case while the courts try to get to the bottom of the tariff dispute between Transnet, Sasol, Total Energies, Natref and the South African National Energy Regulator (NSA).
Transnet has sued the oil company over the underpayment of duties on the use of its crude oil pipeline from Durban to Sasolburg between December 2020 and May 2023.
Transnet charged the pair a pipeline fee in line with the maximum rate set by Nersa. However, Sasol and Total did not pay the full price, arguing that Transnet had a duty to make an independent decision taking into account mitigating factors that might justify a discounted price.
For example, Sasol argues that it is fair to charge low fees for crude oil pipelines. This is because the line's operating costs are much lower than similarly used state-of-the-art, high-mix pipelines. Customs duties apply.
Transnet says it owes R1.3 billion from both parties. Sasol makes him R815 million and TotalEnergies makes him R461 million.
This dispute arises when there is no customs agreement between the parties.
The previous long-term agreement, originally enacted in 1963 and reflecting apartheid-era energy security imperatives (but later amended), ended in 2020.
The parties took Transnet to court over this, but the Constitutional Court ruled in mid-2022 that the state-owned company had the right to break the agreement.
No new agreements have been introduced since the end of that agreement.
Sasol and Total Energy want the court to rule on what constitutes a fair and equitable tariff. Alternatively, the companies are asking the court to refer the matter back to Transnet for reconsideration. Transnet will maintain the full amount of the maximum charges charged as a fair and equitable amount.
The court agreed that certain commercially sensitive information would need to be made available in order for the matter to be properly assessed.
“The trial court will have a duty to consider evidence that undermines Transnet's contention that the charges are fair and just. “These may be the same factors that would have been considered had Transnet made a lawful decision,” the court said in its judgment.
“This evidence will have an impact on whether a lower rate than the maximum rate set by Nersa should have been imposed. The documents will highlight the weight of the considerations.”
The dispute is an ancillary matter and is scheduled to go to trial in July of this year. In the main issue currently in court, Sasol Oil claims that Transnet breached the contract (prior to termination) and overcharged the company by R3.5 billion. TotalEnergies is also joining the lawsuit and is seeking refunds.