First Respondent's Statement of Facts - ConCourt Collections

In the matter between:

MIGHTY SOLUTIONS CC T/A ORLANDO SERVICE STATION

Applicant

and

ENGEN PETROLEUM LIMITED First Respondent CONTROLLER OF PETROLEUM PRODUCTS Second Respondent

FIRST RESPONDENT’S STATEMENT OF FACTS

1. Prior to the hearing a quo the High Court requested the parties to compile a joint practice note setting out the issues for determination and the common cause facts. A copy of the resulting joint practice note is attached as annexure "A".

2. Paragraph 8 of the joint practice note identified the only two issues for determination by the High Court. They were

2.1 “whether the Applicant [ie the First Respondent in this Court]

has locus standi (at common law) to move for an eviction order”;and

2.2 “whether the Respondent [ie the Applicant in this Court] may rely on "possessionary rights" arising from its fuel retail licence as read with the Petroleum Products Act as amended”

3. Paragraphs 9 to 25 of the joint practice note identified the common cause facts on the basis of which the application was to be determined. They are the following :

3.1 The First Respondent (Applicant in the High Court) is Engen Petroleum Limited, a licensed wholesaler and distributor of petroleum products to its nationwide network of independently operated and owned dealers, who operate “Engen” branded service stations. These dealers in turn sell the said products to the public through their “Engen” branded service stations;

3.2 These service stations are, by virtue of their get-up, signage, marks and colours, unmistakably part of the First Respondent’s network and are recognised and identified by the public as such;

3.3 The First Respondent generally installs its own underground tanks and pumps and other equipment necessary to store and dispense petroleum products at a service station. It invests considerable amounts of money in developing a service

station. It earns a return on its investment at a service station by supplying its network of service stations with all their petroleum product requirements on which sales it makes a profit;

3.4 The First Respondent consequently enters into expansive written agreements with its dealers;

3.5 There are several possible arrangements subject to which the First Respondent contracts with its dealers. One such arrangement (as in casu) is that:

3.5.1 The First Respondent hires a property from the registered owner of the property and in turn, sublets same (with the Engen service station) to the dealer.

The dealer then conducts the Engen branded service station at the property, in terms of and subject to the provisions of an agreement of lease and operation of service station (generally known as an operating lease);

3.6 On or about 5 September 2005, First Respondent and Appellant (First Respondent in the High Court) concluded

such an operating lease. It was headed Agreement of Lease and Operation of Service Station;

3.7 The lease commenced on 1 September 2005 and was to remain in force until the sooner of the end of March 2008 or terminable on a month’s notice;

3.8 Pursuant to this lease, the First Respondent granted the Appellant occupation of the premises, including the Engen branded service station situated thereat, and the Appellant commenced operating the service station, using the First Respondent’s equipment and the First Respondent’s signage under its trademarks;

3.9 The premises comprise the immovable property where the Appellant carries on business primarily as an automotive fuel filling service station and these premises are situate at corner Soweto Highway and Mooki Street, Orlando East, Soweto;

3.10 It is from these premises the First Respondent seeks to evict the Appellant;

3.11 For reasons that are not relevant to the current application, the aforesaid written lease was cancelled on or about 10 July 2009;

3.12 It is further common cause that the Appellant remained in occupation of the premises ever since September 2005 and that it currently is still in occupation of the premises. It is common cause that it no longer has any common law right to be in occupation – both the original written lease agreement referred to hereinbefore and/or any subsequent lease arrangements having been (validly) cancelled;

3.13 The aforesaid facts form the basis for the common law component of the eviction proceedings;

3.14 Further common cause facts relevant to the Appellant’s argument (that it enjoys rights of possession capable of defeating the First Respondent’s common law suit for eviction) are set out in what follows:

3.15 The Appellant is a duly licensed retailer of petroleum products;

3.16 Such licence was issued to the Appellant in order to conduct the sale of petroleum products at the premises;

3.17 The Appellant asserts that its retail licence coupled with its possession of the site defeat the First Respondent’s eviction suit.

4. The First Respondent contends that it is not permissible for the parties to rely on any factual propositions not contained in the joint practice note. In this regard, the First Respondent draws attention to the following:

4.1 The joint practice note was agreed by counsel for both parties at the High Court hearing and was handed in above both of their names (see p 10 of the practice note).

4.2 In relation to the status of the facts agreed in the joint practice note and the relevance of the original application papers, the joint practice note stated the following:

“1 This joint practice note will provide the basis for adjudicating the matter. ... The joint practice note is submitted by agreement between the parties and replaces the paginated and indexed files currently before Court.

2. Although those files will be cross-referenced, it is not necessary to read them prior to the hearing.

…

5. The parties have compiled an agreed set of facts extracted from File 1. These will again be cross-

referenced but it is not necessary to read File 1 in any detail.

6. The issues for determination have also been agreed and these may be adjudicated with reference to the attached common cause facts.”

4.3 After setting out the common cause facts in paragraphs 9 to 25, the practice note stated in paragraph 26:

“Against this factual background, the arguments of the parties may be assessed.”

4.4 It was not suggested at the hearing of the application that the High Court should have regard to any facts (as opposed to legal argument) outside the facts contained in the joint practice note.

4.5 It is clear from pages 2-3 of its judgment, that the High Court confined itself to the facts in the joint practice note.