BEE fuel wrangle treads water over ‘urgency’

A High Court case in which a Namibian black economic empowerment company is taking South African fuel giant Sasol to court over a contract to ship fuel to Namibia ran aground in arguments over its urgency – or not – yesterday.

Judge Mavis Gibson is set to give a ruling in the High Court in Windhoek this afternoon on the issue whether the case that Namibia Energy Corporation (Namenco) has lodged against Sasol Oil, Namibia Liquid Fuels (NLF), the National Petroleum Corporation of Namibia (Namcor) and Government should be heard as a matter of urgency or not. Namenco is asking the High Court to issue an urgent order against Sasol and Namibia Liquid Fuels to compel them to award a contract for the shipping of half of Namibia’s fuel imports from South Africa to the Namibian BEE company.That request to the court was not argued before Judge Gibson yesterday.Instead, Johannesburg senior counsel Willem van der Linde, representing Sasol and NLF, and Namenco’s Cape Town-based senior counsel, Norman Arendse, spent the day trying to convince the Judge why she should refuse to hear the case as a matter of urgency, or why it was indeed an urgent matter.Van der Linde argued that Namenco had known since October 6 at least that Sasol Oil was not planning to yield to Namenco’s demand to be awarded a contract to provide the shipping services for the transport of fuel that a Sasol and NLF partnership will have to supply to Namibia from the beginning of next year.Yet Namenco waited until last week Thursday before it went to court to ask that Sasol be obliged to give the contract to it.By waiting so long, it was responsible for a self-created urgency, which had the effect of prejudicing Sasol Oil and NLF in the preparation of their defence of the case, Van Der Linde argued.He asked Judge Gibson to strike the case from the roll.Arendse’s take on the matter was that the dispute between Namenco and Sasol had become ripe for a hearing in court only near the end of October.That was when it was finally made clear to Namenco that Sasol was not going to award the shipping contract to Namenco, but was set on calling for tenders from interested parties before it would decide who to award the contract to.Until that reality dawned, the exchange of correspondence, demands and refusals between Namenco and Sasol had been part of a process of the taking up of positions and posturing, during which time an approach to the court would have been premature, Arendse argued.Namenco is claiming that they had an agreement with Sasol that the latter company would award the shipping contract to Namenco if Sasol were to win the contract for the supply of half of the fuel that Namibia needs each year.Sasol indeed won that contract, in partnership with NLF, which describes itself as a black economic empowerment company, as does Namenco.It is Namenco’s argument that by awarding the shipping contract to an indigenous Namibian company, it would help establish a Namibian shipping industry that would benefit the country’s people rather than foreign companies as is the case with the current set-up.Also, it would mean that tens of millions of Namibia dollars that currently leave the country each year to go into foreign companies’ pockets, would be kept in Namibia, for the country’s own benefit.The shipping contract would be worth about N$78,2 million a year, or about N$236 million over its three-year term from beginning 2005, according to Namenco.Namenco is asking the High Court to issue an urgent order against Sasol and Namibia Liquid Fuels to compel them to award a contract for the shipping of half of Namibia’s fuel imports from South Africa to the Namibian BEE company.That request to the court was not argued before Judge Gibson yesterday.Instead, Johannesburg senior counsel Willem van der Linde, representing Sasol and NLF, and Namenco’s Cape Town-based senior counsel, Norman Arendse, spent the day trying to convince the Judge why she should refuse to hear the case as a matter of urgency, or why it was indeed an urgent matter.Van der Linde argued that Namenco had known since October 6 at least that Sasol Oil was not planning to yield to Namenco’s demand to be awarded a contract to provide the shipping services for the transport of fuel that a Sasol and NLF partnership will have to supply to Namibia from the beginning of next year.Yet Namenco waited until last week Thursday before it went to court to ask that Sasol be obliged to give the contract to it.By waiting so long, it was responsible for a self-created urgency, which had the effect of prejudicing Sasol Oil and NLF in the preparation of their defence of the case, Van Der Linde argued.He asked Judge Gibson to strike the case from the roll.Arendse’s take on the matter was that the dispute between Namenco and Sasol had become ripe for a hearing in court only near the end of October.That was when it was finally made clear to Namenco that Sasol was not going to award the shipping contract to Namenco, but was set on calling for tenders from interested parties before it would decide who to award the contract to.Until that reality dawned, the exchange of correspondence, demands and refusals between Namenco and Sasol had been part of a process of the taking up of positions and posturing, during which time an approach to the court would have been premature, Arendse argued.Namenco is claiming that they had an agreement with Sasol that the latter company would award the shipping contract to Namenco if Sasol were to win the contract for the supply of half of the fuel that Namibia needs each year.Sasol indeed won that contract, in partnership with NLF, which describes itself as a black economic empowerment company, as does Namenco.It is Namenco’s argument that by awarding the shipping contract to an indigenous Namibian company, it would help establish a Namibian shipping industry that would benefit the country’s people rather than foreign companies as is the case with the current set-up.Also, it would mean that tens of millions of Namibia dollars that currently leave the country each year to go into foreign companies’ pockets, would be kept in Namibia, for the country’s own benefit.The shipping contract would be worth about N$78,2 million a year, or about N$236 million over its three-year term from beginning 2005, according to Namenco.