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2024
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[2024] ZAGPJHC 857
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BP Southern Africa (Pty) Ltd and Another v Boy NO 50 Trading (Pty) Ltd (Ex Tempore) (89753/2024) [2024] ZAGPJHC 857 (20 August 2024)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 89753/2024
DATE
:
20-08-2024
1.
REPORTABLE: NO.
2.
OF INTEREST TO OTHER JUDGES: NO.
3.
REVISED.
20
August 2024
In
the matter between
BP SOUTHERN AFRICA
PTY LTD
1
st
Applicant
AQUARELLA
INVESTMENTS
and
2
nd
Applicant
BOY
NO 50 TRADING PTY LTD
Respondent
JUDGMENT
EX TEMPORE
WILSON,
J
: The applicant, BP, is a
well-known supplier of fuel to garage forecourts throughout the
country. The second applicant, Aquarella,
owns a garage forecourt on
which the respondent, Boy 50, currently sells fuel.
BP and Aquarella approached me on an
urgent basis for relief authorising BP to de-brand Boy 50's filling
station, and to eject Boy
50 from the garage forecourt. The basis for
this application is three-fold. First, BP says that it has terminated
its agreement
to supply Boy 50 with fuel and accordingly Boy 50 has
no right to pass off the fuel it sells as BP fuel. Secondly,
Aquarella says
that it has terminated the lease in terms of which Boy
50 is entitled to occupy the garage forecourt. This was done for
non-payment
of amounts due under the lease.
Thirdly, the matter is brought on an
urgent basis because BP became aware at the end of July of a test
done on the fuel being sold
at the garage, which demonstrated that
the fuel was not BP fuel, and that it had in fact been mixed with
paraffin. The fuel is
hazardous because the temperature at which it
will ignite is significantly lower than is safe, and certainly
significantly lower
than the temperature at which BP fuel ignites.
The sale of fuel and the storage of fuel at the forecourt therefore
presents an
acute and ongoing safety risk, both to people in the
vicinity of the garage and those who may fill up their cars at it.
These material facts are not disputed
in Boy 50's answering affidavit. Boy 50 simply complains about
various undertakings that it
says BP made to Boy 50 to amend,
regularise, or continue its relationship with BP. These undertakings
arise from meetings that
took place earlier this year. Whatever those
extra-contractual negotiations were, they do not affect the validity
of BP’s
termination of the supply agreement, and they do not
affect the validity of Aquarella’s termination of the lease
agreement.
There is nothing I can see in Boy 50's answering affidavit
that even begins to make out a case that they do.
Boy 50 further argues that Aquarella
is debarred from approaching this court for urgent relief by an
arbitration clause in the lease
agreement. However, the arbitration
clause specifically reserves the rights of either party to any
arbitration to approach the
court for urgent relief on any matter
arising from the lease. It seems to me that the clause is broad
enough to apply, on any sensible
interpretation, whether a dispute
has been referred to arbitration or not.
I was informed during argument of a
counter-application in which Boy 50 apparently seeks relief setting
aside the termination of
its lease agreement with Aquarella and the
termination of its supply agreement with BP. That application has not
been brought on
an urgent basis. Nor has it been enrolled before me.
It only came to the applicants’ attention during argument, and
in any
event makes out no better case to impugn the applicants'
terminations of the lease agreement and the supply agreement than the
answering affidavit does.
In all those circumstances there is
simply no basis on which the relief BP and Aquarella Investments seek
can be resisted. This
is manifestly an urgent application, given the
undisputed fact that the fuel being supplied by Boy 50 is hazardous
and prone to
ignition at temperatures significantly below fuel safety
standards and below the temperature at which BP fuel would ordinarily
ignite. Considerations both of law and of public safety impel me to
make an order in terms of the draft handed up by the applicant's
counsel, which I have signed, dated and marked X.
WILSON, J
JUDGE OF THE HIGH COURT
20 August 2024