Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Limited and Another

Engen Petroleum Limited, a licensed petroleum wholesaler, leased property in Orlando East, Soweto, developed it into a branded service station, and sub-leased it to Mighty Solutions CC, a licensed petroleum retailer, under an operating lease that expired in March 2008 and continued month-to-month until validly cancelled in July 2009. Despite cancellation, Mighty Solutions remained in occupation without paying rent and continued using Engen’s equipment and branding. Engen applied to the High Court for Mighty Solutions’ eviction. Mighty Solutions resisted eviction, arguing that Engen lacked standing because its head lease had terminated and that the Petroleum Products Act conferred possessory rights on licensed retailers. The High Court ordered eviction; leave to appeal was refused by the Supreme Court of Appeal. Mighty Solutions then sought leave to appeal to the Constitutional Court.

Condonation for late filing was granted, but leave to appeal was refused. Mighty Solutions was ordered to pay Engen’s costs, including the costs of two counsel.

The case affirms a core principle of South African lease law that a lessee or sub-lessee cannot challenge the lessor’s title as a defence to eviction after termination of a lease. It clarifies that the Petroleum Products Act does not create statutory possessory rights for licensed retailers overriding common law. The judgment also provides authoritative guidance on when courts should and should not develop the common law under section 39(2) of the Constitution.