JOHANNESBURG - Liquified petroleum gas (LPG) giant Sunrise Energy had its case against competitor Avedia Energy dismissed with costs by the Western Cape High Court.
Sunrise launched the high court application over what it has termed an “unfair advantage”, because Avedia offloads LPG at “substantially lower prices”.
In the application, Sunrise said it stood to suffer enormous irrecoverable financial losses should Avedia be permitted to continue to offload LPG at the Saldanha quayside and wanted the court to block “further authorisations for it to offload LPG” at the quayside.
Sunrise chief executive Pieter Coetzee confirmed that its application was dismissed and they would be appealing the judgment.
Coetzee said the “judgment was based on the hearing of a preliminary matter only and the court did not even consider the merits of the case”.
Other respondents to Sunrise’s application were the Harbour Master of the Port of Saldanha, Transnet National Ports Authority (TNPA) and the National Energy Regulator of South Africa.
Delivering judgment, Judge MI Samela said: “In this matter, it is my view that this court should recognise and apply the principle of separation of powers by remitting the matter to the Ports Regulator.
“It should be noted that this will not close doors for the applicant, however, this matter should be heard in the first instance by the tribunal vested or entrusted with the administrative powers by the statute.”
However, Coetzee said the company “respectfully disagrees with this finding, as the Ports Regulator does not have jurisdiction to grant certain of the relief sought by Sunrise Energy, which is why Sunrise Energy approached the court in the first place”.
The Ports Regulator has ruled against Sunrise previously when Avedia submitted an appeal to the Ports Regulator about the Sunrise concession agreement, and the implications of the concession agreement on Avedia’s business.
In terms of the concession agreement, Sunrise was granted exclusivity to bring in products via the multi-buoy mooring and pipeline.
This appeal was heard outside of the prescribed time frame and Avedia requested condonation for this. The Ports Regulator granted the appeal and also ruled on it.
Sunrise took the Port Regulator’s decision on review to the KwaZulu-Natal High Court, where the court’s judgment overturned the Port Regulator’s decision on the basis that Avedia had approached the Ports Regulator out of time. The judgement did not address the merits of the matter.
On the allegations that the Sunrise facility was operational despite it not being compliant with the applicable legislation - as claimed by TNPA and the Port of Saldanha in their responding papers - Coetzee said: “Sunrise has obtained every approval necessary to operate our facility safely and legally and it disputes these vexatious allegations.”