The Competition Commission  has recently released a press statement in which it publicises the consent order agreement reached between it and Air Products South Africa Pty Ltd. The consent order agreement relates to certain contracts which have operated between Air Products and Sasol Chemical Industries Limited  since 1998. The impugned agreements between Air Products and Sasol were entered into in the context of a legitimate, supply relationship between the parties, designed to optimally meet Sasol's requirements as a customer and to protect Air Products' capital investments as a supplier. The agreements were never intended to limit competition in any way or designed to contravene any portion of the Competition Act, 1998, and instead were designed to allow Air Products to supply certain gaseous products to Sasol in the most efficient way possible.

That said, Air Products has made an admission of having contravened the Competition Act in the consent order agreement with the Commission, as it acknowledges that the contracts gave rise to inadvertent and unintended price-fixing and market allocation of industrial gases.  Air Products has also agreed to pay an administrative penalty in the amount of R2 762 978.70. This follows the full cooperation that Air Products gave to the Commission throughout its investigation and is consistent with its corporate ethos of full compliance with all laws.  Air Products believes that the quantum of the penalty reflects the fact that its transgression was unintended, of a "technical" nature, and not at all consistent with the nature of ‘hard core cartel’ conduct that would fall foul of the same provision of the Competition Act and attract significantly greater censure .

Air Products had already, as far back as 2009, developed and implemented a competition law compliance programme for itself, which included extensive employee training and the review of standard agreements, as it has always been Air Products’ desire to comply with the Competition Act. Nevertheless, as part of the settlement with the Commission, Air Products has agreed to amend the suite of agreements with Sasol to remove any provisions that contravene the Competition Act; to develop, implement and monitor a (renewed and enhanced) competition law compliance programme incorporating corporate governance designed to ensure that its employees, management, directors and agents do not engage in future contraventions of the Competition Act; and to refrain from engaging in anti-competitive conduct in the future. Air Products intends to implement further internal measures to inculcate an increased awareness of the Competition Act and to ensure compliance with the competition laws of South Africa going forward, to ensure that no further inadvertent contraventions of the Competition Act take place.