Kiribati Traders CC v Chevron South Africa (Pty) Limited and Another (10295/2015) [2017] ZAGPJHC 92 (9 March 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 10295/2015

Reportable: No

Of interest to other judges: No

Revised.

9/3/2017

In the matter between:

KIRIBATI TRADERS CC Applicant

and

CHEVRON SOUTH AFRICA (PTY) LIMITED First Respondent

INVESTOR AMALGAM (PTY) LIMITED Second Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

MAKUME, J:

[1] This is an application for leave to appeal the whole of my judgment and order in the above matter granted on the 7th December 2016 in favour of the First and Second Respondents. The Applicant who was the Respondent in the application seeks leave to appeal to the Supreme Court of Appeal alternatively to the Full Bench of this Division. This application is opposed.

[2] The Applicant despite setting out numerous grounds of appeal in its notice only relied on the grounds relating to the retail licence issued in favour of the Applicant in terms of the Petroleum Products Act 120 of 1977 as amended by Act 58 of 2003 (“the PPA Act”).

[3] The Applicant argues that in my judgment I ought to have found that the Retail Licence issued to the Applicant in terms of the PPA Act is an asset which entitles Applicant to possession and occupation of the premises and that an eviction order makes it unconstitutional by virtue of it being an arbitrary deprivation of property in contravention of Section 25 of the Constitution of the Republic of South Africa.

[4] The Applicant depended entirely on the cases of Louistaf v Snyders NO Case Number 1060/2015 (SCA) as well on the decision of the Constitutional Court in the matter of Shoprite Checkers (Pty) Ltd v MEC For Economic Development Eastern Cape and Others 2015 (6) SA 125 (CC) in support of his submission that another court will probably find that a retail licence is property and thus protected by Section 25 of the Constitution of the Republic of South Africa.

[5] Section 17(1) of the Supreme Court Act No 10 of 2013 enjoins me in considering an application for leave to appeal to be satisfied that:

5.1 There are reasonable prospects of success of the appeal/

5.2 Secondly, that there is some other compelling reason why the appeal should be heard.

[6] The Applicant’s reliance on the two cases mentioned above has not persuaded me that there are any reasonable prospects of success nor any compelling reasons why the appeal should be heard.

[7] I have come to that conclusion because in the present matter the Applicant bases his appeal on the retail licence, Louistaf dealt with a site licence. There is a clear statutory difference between a site licence and a retail licence. At paragraph [13] of Louistaf the court concluded as follows:

“[13] The Regulations also deal with the transfer of licences. Regulation 22(7) states that a retail licence is not transferable. A site licence however is freely transferable.”

[8] Secondly, the Constitutional Court in the Shoprite Checkers matter did not recognise a grocers wine licence as property protectable in terms of the Constitution. Froneman J at paragraph [69] concluded as follows:

“[69] The last issue which needs to be addressed is whether Shoprite’s argument that the claim had much commercial value plays any role in determining whether it is property for the purposes of Section 25(1). Both Agri SA and FNB have made it clear that it does not play a determinative role. The value lies in the object of the right not its commercial value. And that would remain the case, even if the licence were held by a natural person.”

[9] In the result I have come to the conclusion that there are no reasonable prospects of success of the appeal and accordingly the application for leave to appeal must fail.

ORDER

[10]

10.1 Application for leave to appeal is dismissed.

10.2 The Sheriff of the court is authorised and directed to take all the necessary steps to give effect to the order in paragraph 40.1 of the main judgment if the Respondent does not vacate the premises within 14 days of the service of this order.

10.3 The Applicant shall pay costs of this application.

DATED at JOHANNESBURG this the … day of MARCH 2017.

___________________________________________

M A MAKUME

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

COUNSEL FOR APPLICANT ADV SAWWAS

INSTRUCTED BY

MESSRS HESSELINK KÖNIG INC

RANDBURG

Tel: (011) 476-3295

COUNSEL FOR RESPONDENTS ADV LAMPLOUGH

INSTRUCTED BY

NORTON ROSE FULLBRIGHT SA INC

SANDTON

Tel: (011) 685-8824

Ref: P.M. Chronis/B. Dendy/55CTX426