Tiekiedraai Eiendomme (Pty) Limited v Shell South Africa Marketing (Pty) Limited and Others

The dispute arose from a sale of immovable property subject to a right of pre-emption in favour of Shell South Africa Marketing (Pty) Ltd under a lease agreement. H L Hall & Sons (Group Services) (Pty) Ltd, the lessor and owner of the property, received an offer to purchase from Tiekiedraai Eiendomme (Pty) Ltd in October 2014, but the offer was incomplete as further terms were still to be agreed. Hall forwarded this offer to Shell. Shell contended that the incomplete offer did not trigger its 30‑day pre-emption period. On 5 December 2014 Hall concluded and forwarded a complete sale agreement with Tiekiedraai to Shell, whereafter Shell exercised its pre-emptive right within 30 days. The High Court and the Supreme Court of Appeal upheld Shell’s interpretation and granted relief effectively substituting Shell as purchaser in place of Tiekiedraai. Tiekiedraai sought leave to appeal to the Constitutional Court, raising new arguments for the first time concerning the validity of the ‘stepping‑in’ remedy and the underlying common-law doctrine.

The application for leave to appeal was dismissed with costs.

The case is significant for clarifying the limits of the Constitutional Court’s extended jurisdiction under section 167(3)(b)(ii) of the Constitution. It underscores that arguable points of law of general public importance must not only exist but must also arise from the record and satisfy the interests of justice. The judgment reinforces the principle that the Constitutional Court will not entertain new legal arguments raised for the first time on appeal, particularly in common-law matters, thereby protecting the integrity of the appellate hierarchy.