Pick 'n Pay Retailers (Pty) Ltd v Minister of Mineral and Energy Affairs

• Jurisdiction: South Africa
• Judge: Corbett JA, Smalberger JA, Vivier JA, Nicholas AJA and Kumleben AJA
• Judgment Date: 26 March 1987
• Citation: 1987 (2) SA 865 (A)
• Hearing Date: 12 March 1987
• Court: Appellate Division

Kumleben AJA:

Appellant is the proprietor of a number of large retail stores at which clothing, foodstuffs and other commodities are sold. Respondent is entrusted with the J administration of the Petroleum

Kumleben AJA

A Products Act 120 of 1977 ('the Act'). Prior to its amendment by s 1 of the Petroleum Products Amendment Act 61 of 1985 ('the amending Act') the responsible authority was the Minister of Economic Affairs. Since in this appeal nothing turns on the substitution I shall, for convenience, refer to both Ministers as 'respondent'.

B On 17 June 1986 appellant applied, in the Cape of Good Hope Provincial Division, for an order setting aside para 2(b) of certain regulations made in terms of s 2(1)(d) of the Act and published in Government Gazette 10260 of 2 June 1986. The application failed but leave to appeal was granted by the Court a quo.

C This was not the first dispute to have arisen between the parties as a result of the marketing practices adopted by appellant. Details of earlier disputes, and the facts giving rise to them, are fully recounted in the judgment of Berman J. For the purposes of deciding the question raised in this appeal only certain of these facts need be repeated.

Appellant operates, in addition to its retail stores, 12 D service stations at which petrol is sold. These do not form part of any of the stores but are located close to certain of them. In 1969 resale price maintenance was prohibited by law but petrol was excluded from this prohibition. The price at which it could be sold at retail outlets was at the time maintained by an agreement reached between respondent and the E wholesale suppliers of petrol. The latter undertook not to supply petrol to retailers should they resell the petrol at a price other than that prescribed by respondent from time to time.

On 16 September 1977 the Act was promulgated. Its purpose, as described in the long title, was inter alia 'to provide measures for the saving of petroleum products and an economy in F the cost of the distribution thereof, and for the maintenance of a price therefor'. Section 2(1) of the Act confers upon respondent certain powers, which may be exercised by making a regulation or by serving a notice in writing on any person, in order to implement the provisions of the Act. Section 2(1)(a) and (b) deal with matters unrelated to the issue on appeal. G Section 2(1)(c) empowers respondent to prescribe the price at which petrol may be sold by any person. Notwithstanding this provision, no such price was prescribed and the price continued to be governed by contract. On 21 June 1985 the amending Act became law. It conferred additional regulatory powers on the Minister by adding two further subsections - 2(1)(d) and 2(1)(e) - to s 2(1) of the Act.

H In March 1986 appellant embarked upon an advertising and sales campaign, referred to in the application as 'the coupon scheme'. It involved the issue of a coupon to a customer for each litre of petrol bought at one of appellant's service stations. The coupon entitled the holder to buy goods, apart I from petrol, to the value of four cents at any of appellant's stores or to tender the coupon in part payment of goods purchased. In May 1986 respondent, acting in terms of s 2(1)(c) of the Act, prescribed the price at which petrol was to be sold. Appellant proceeded to sell petrol at the price now prescribed by law but continued to operate its coupon scheme. On 2 June 1986 respondent published in terms of s 2(1)(d) the J regulations to which I have referred. They are as follows:

Kumleben AJA

'1.

In these regulations, unless the context indicates A otherwise -

"benefit" means -

(a)

any money, article, service or concession having a commercial value; or

(b)

anything whatsoever which, either by itself or in conjunction with any other thing or with the performance of any act, entitles or purports to entitle the recipient thereof to receive such money, article, service or concession, or to participate in any competition;

and any other word or expression to which a meaning has B been assigned in the Petroleum Products Act 120 of 1977, shall bear such meaning.

2.

No person, in respect of whom the price at which petrol may be sold by that person at an outlet may have been prescribed by regulation or notice under the Petroleum Products Act 1977 -

(a)

shall supply or offer to supply petrol at that outlet other than by way of sale for a wholly monetary C consideration and at the price so...