B P Southern Africa (Pty) Ltd v Twoline Trading 87 (Pty) Ltd t/a Sheffield service Station (14140/02) [2002] ZAGPHC 24 (30 August 2002)

B P Southern Africa (Pty) Ltd v Twoline Trading 87 (Pty) Ltd t/a Sheffield service Station (14140/02) [2002] ZAGPHC 24 (30 August 2002)

The court found that the wording of clause 27.1 in the principal lease agreement was not obviously erroneous and that there were material disputes of fact regarding the parties' intention. Rectification could not be granted in motion proceedings where such disputes exist, and the respondent's cancellation of the...

Source-derived case information.

Citation
[2002] ZAGPHC 24
Parties
Applicant: B P Southern Africa (Pty) Ltd; Respondent: Twoline Trading 87 (Pty) Ltd t/a Sheffield Service Station
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
30 August 2002
Case Number
14140/02
Procedural Posture
Urgent Application / First Instance
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Willis
Legal Topics
Lease Rectification, Personal Servitude, Restraint of Trade, Constitutional Right to Trade
Land and Property Commercial and Corporate Lease Rectification Personal Servitude Restraint of Trade Constitutional Right to Trade

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Summary, issues, holding and outcome

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Parties

B P Southern Africa (Pty) Ltd

Applicant

Twoline Trading 87 (Pty) Ltd t/a Sheffield Service Station

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether clause 27.1 of the principal lease agreement should be rectified to substitute 'the lessee' for 'the lessor'.
  2. 2 Whether the respondent's cancellation of the lease agreement was valid under clause 27.1.
  3. 3 Whether the servitudal clause restricting sale of petroleum products is enforceable against the respondent.

Ratio Decidendi

The court found that the wording of clause 27.1 in the principal lease agreement was not obviously erroneous and that there were material disputes of fact regarding the parties' intention. Rectification could not be granted in motion proceedings where such disputes exist, and the respondent's cancellation of the lease was valid under the clause as drafted. Regarding the servitudal clause, the court held that although it was registered and constituted a real right, its effect was to restrain the respondent from trading and would render it economically inactive, which was unconscionable and contrary to public policy and constitutional rights. The court emphasized the importance of free...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, which costs are to include the costs of two counsel.