Transnet, as a licensee, was not only entitled to discount the costs of transporting crude oil to domestic refineries, but also, in accordance with the principle of neutrality. The amending agreement was therefore in line with the general principle that new legislation would not interfere with non-existent rights, and Transnet`s complaint was dismissed. In 2010/2011, NERSA issued its first tariff assessment. Transnet argued that the principle of neutrality and the amending agreement did not prevail over that decision and that the amending agreement would effectively be terminated by the regulatory system established by the NERSA Act and the ECA.  The essence of Transnet`s defence is that the ECA „abolished“ the amendment agreement and thus the principle of neutrality. the NERSA authority was the only body capable of setting tariffs that licensees are required to pay; NERSA was not ordered by the AAA to come into force; the ECA did not allow discrimination between clients; the EAA prohibits any agreement contrary to its provisions and, consequently, the amending agreement has been annulled; and that Total made statements to NERSA on the application of the principle of neutrality, which was rejected. If Total had remedies, it was NERSA`s decision to review.  In place of Transnet SATS, it initially refused to recognize the principle of neutrality. However, in 1991, a modification agreement was concluded between the parties following meetings between Total, Sasol and Transnet. Transnet has undertaken to ensure that the percentage increase in the price of crude oil received by Sasol and Total (Natref`s shareholders) does not exceed the percentage weighted average of any adjustments to the prices of petrol, diesel and avtur (so-called white fuels). The amendment agreement, which also embodied the principle of neutrality, was largely respected until March 2005. However, in 2005, when the system for regulating deliveries of petroleum products changed, Transnet refused to recognise the amendment agreement which embodies the principle of neutrality. The amendment was introduced when the National Energy Regulator Act, 2004 and the Petroleum Pipelines Act, 2003 (AAA) came into force in September and November 2005, respectively.
The AAA has given the Petroleum Pipelines Regulatory Authority („Authority“) the authority to license the construction, processing and operation of pipelines, loading and storage facilities. It is important that the Authority also have the authority to set or approve tariffs and charges in the manner prescribed by the regulations. The National Energy Regulator Act established a regulatory authority, the National Energy Regulator of South Africa („NERSA“), to exercise the functions of the Authority.  Nothing could be clearer. Transnet is entitled to a rebate and the principle of neutrality enshrined in the amendment agreement obliges it to grant a rebate for the transportation of crude oil to the Natref refinery. For Transnet, Mr L Moodley provided evidence that coastal customers are currently treated in the same way as the Natref refinery. . . .