19 November 2015 – This morning the Constitutional Court of South Africa handed down judgment in Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and Another  ZACC 34, its first decision from its third term of 2015. In the case, which we previewed here, Mighty Solutions, a petrol station operator, sought to prevent its eviction by Engen, the petrol supplier under whose branding Mighty Solutions was operating. The two parties had concluded a sublease. Mighty Solutions’ main argument was that Engen itself lacked title to the land, and so was not permitted to evict. It recognised that this defence does not currently exist, but asked the Court to develop the common law.
In a unanimous judgment written by Van der Westhuizen J, the Constitutional Court has roundly rejected Mighty Solutions’ applications. It points out that the arguments were not raised in a procedurally proper manner – but also makes clear that they fail dismally on the merits. The common law position makes good sense, the Court held.
This is no surprise. Mighty Solutions is in a weak bargaining position relative to massive corporations like Engen, but plainly had no legal leg to stand on here. The judgment is, indeed, surprisingly generous in taking 70 paragraphs to make this point.