South Africa: Consolidated Regulations

You are here:  SAFLII >> Databases >> South Africa: Consolidated Regulations >> REGULATIONS REGARDING PETROLEUM PRODUCTS WHOLESALE LICENCES

| Noteup

---

REGULATIONS REGARDING PETROLEUM PRODUCTS WHOLESALE LICENCES

Download original files

PDF format

RTF format

Last checked: 9 October 2019

PETROLEUM PRODUCTS ACT

Act 120 of 1977.

REGULATIONS REGARDING PETROLEUM PRODUCTS WHOLESALE LICENCES
[Updated to 19 December 2012]

GoN R287, G. 28665 (c.i.o 27 March 2006),

GoN R1062, G. 35984 (c.i.o 19 December 2012).

The Minister of Minerals and Energy has under sections 2A, 2C, 2E, 2F and 12C of the Petroleum Products Act, 1997 (Act 120 of 1977) made the Regulations in the Schedule.

ARRANGEMENT OF REGULATIONS

1. Definitions
2. Scope of regulation
3. Lodging of wholesale licence application
4. Notice of application for wholesale licence
5. Acceptance of wholesale licence application
6. Evaluation of a wholesale licence application
7. Proof of payment of levies
8. Procedure for issuing wholesale licence
9. Particulars to be included in wholesale licence
10. Environmental rehabilitation
11. Financial Security for Rehabilitation
12. General conditions with regard to wholesale licence
13. Temporary wholesale licence
14. Amendment of wholesale licence
15. Documents to be submitted in support of wholesale licence application
16. Documentation to be submitted to Controller upon successful application
17. Information to be submitted annually to Controller by licensed wholesaler
18. Application for duplicate wholesale licence
19. Surrender of licence
20. Suspension and cancellation of licence
21. Termination of licence
22. Decision-making by Controller
23. Refusal to issue licence
24. Appeals
25. False declarations
26. Additional information

27.

28. Publication of data by Controller

Annexure A: Forms
Annexure B: Licence fees

1. Definitions

In these Regulations any word or expression to which a meaning has been assigned in the Act shall have the meaning so assigned and unless the context indicates otherwise—

“bulk” means 1500 litres or more, per transaction of petroleum products;

“certified copy” means a photocopy of an original document that has been—

(a) attested as a true copy of the original and is marked with the words “original seen” or “true copy of original document”; and

(b) signed and stamped by a commissioner of oaths contemplated in the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);

“competent authority or person” means the relevant authority or person in terms of the applicable law;

“Controller” means the Controller of Petroleum Products contemplated in Section 3(1) of the Act;

“declaration” means an affidavit, affirmation or solemn or attested declaration made before a Commissioner of Oaths contemplated in the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);

“petroleum products” means, in these Regulations, aviation gasoline, biofuels, diesel, jet fuel, liquefied petroleum gas, paraffin and petrol;

“the Act” means the Petroleum Products Act, 1977 (Act 120 of 1977);

“temporary licence” means a licence issued under section 2B(5) of the Act;

“the Amendment Acts” means the Petroleum Products Amendment Act, 2003 (Act 58 of 2003), and the Petroleum Products Amendment Act, 2005 (Act 2 of 2005);

“training” means learnerships contemplated in Section 16 of the Skills Development Act, 1998 (Act 97 of 1998) and “trained” has a corresponding meaning.

2. Scope of regulation

These Regulations apply to wholesale licences.

3. Lodging of wholesale licence application

An applicant for a wholesale licence, must—

(a) complete an application form in the form contained in Annexure A; and

(b) lodge that application with the Controller together with the documents specified in regulation 15(1).

4. Notice of application for wholesale licence

(1) When an application for a licence contemplated in regulation 3 is accepted, an applicant in respect of whom section 2D of the Act is not applicable, must have a notice of the application published in a prominent manner, in at least two of the most popular national newspapers in two official languages, one of which must be English.

(2) The notice contemplated in subregulation (1) must state—

(a) the name of the applicant;

(b) the application number issued by the Controller upon acceptance of the application;

(c) the purpose of the application;

(d) the place where the application will be available for inspection by any member of the public;

(e) the period within which any objection to the issuing of the licence may be lodged with the Controller; and

(f) the address of the Controller where objections may be lodged.

(3) The place contemplated in subregulation (2)(d) must be the physical address of the Controller’s office where the application was lodged.

(4) The period contemplated in subregulation (2)(e) must be at least 20 working days from the date of publication of the notice.

(5) Proof of the publication of the notice of application contemplated in subregulation (1) must be submitted to the Controller.

5. Acceptance of wholesale licence application

Before accepting a wholesale licence application, the Controller must be satisfied that—

(a) the applicant is the owner of the business;

(b) the application form has been completed in full; and

(c) all the documents specified in regulation 15(1) have been submitted with the application form.

6. Evaluation of a wholesale licence application

(1) In evaluating an application for a wholesale licence, the Controller must, subject to subregulation (2), verify that—

(a) the information and the documents submitted with the application form are true and correct; and

(b) the notice contemplated in regulation 4(1) was published.

(2) In the case of an application for a wholesale licence made by a person in respect of whom section 2D of the Act is not applicable, the Controller must be satisfied that the wholesaling business will—

(a) promote the licensing objectives stipulated in section 2B(2) of the Act; and

(b) be economically viable.

7. Proof of payment of levies

An applicant for a wholesale licence in respect of whom section 2D of the Act is applicable, must provide proof of payment of any levies due in terms of the Central Energy Fund Act, 1977 (Act 38 of 1977), which include Road Accident Fund, IP Tracer and Equalisation Fund.

8. Procedure for issuing wholesale licence

The Controller must, if satisfied that an application for a wholesale licence meets the requirements of the Act and these Regulations—

(a) inform the applicant that the application has been successful;

(b) require the applicant to, within the period determined by the Controller—

(i) pay the relevant licence fee determined in Annexure B into the relevant regional bank account; and

(ii) submit the documents contemplated in regulation 16; and

issue the wholesale licence upon receipt of the documentation contemplated in paragraph b(ii).

9. Particulars to be included in wholesale licence

A wholesale licence must include—

(a) the name of the licensee;

(b) the licence number;

(c) the identity number or company registration number of the licensee;

(d) the business address of the licensee;

(e) each type of petroleum product the licensee is licensed to wholesale;

(f) the date of issue of the licence;

(g) the conditions of the licence; and

(h) the Controller’s signature.

10. Environmental rehabilitation

(1) An environmental management plan, approved by a competent authority or person, contemplated in regulation 16(b)(i) must include—

(a) details of—

(i) the authority or person who prepared the environmental management plan; and

(ii) the expertise of that authority or person who prepared the environmental management plan;

(b) a description of the environment likely to be affected by the proposed wholesaling activity;

(c) an assessment of the potential impacts of the proposed wholesaling activity on the environment, socio-economic conditions and cultural heritage, if any;

(d) a summary of the assessment of the significance of the potential impacts, the proposed mitigation and management measures to minimise adverse impacts;

(e) a financial provision which must include—

(i) details of the method providing for the financial provision contemplated in regulation 11(1); and

(ii) the determination of the quantum of the financial provision contemplated in regulation 11(3);

(f) planned monitoring and performance assessment of the environmental management plan;

(g) closure and environmental objectives;

(h) a record of public participation undertaken and the results thereof; and

(i) an undertaking by the applicant to execute the environmental management plan.

11. Financial Security for Rehabilitation

(1) Financial provision required in terms of regulation 10(1)(e) to achieve the total quantum for the rehabilitation, management and remediation of negative environmental impacts must be provided for by one or more of the following methods—

(a) An approved contribution to a trust which must be in the format approved by the Controller from time to time;

(b) a financial guarantee from a South African registered bank or any other bank or financial institution approved by the Controller guaranteeing the financial provision relating to the environmental management plan in the format approved by the Controller from time to time;

(c) a deposit into a bank account specified by the Controller in the format approved by the Controller from time to time; or

(d) any other method that the Controller may approve.

(2) In the case of subregulation (1)(c), proof of payment must be submitted to the Controller prior to the acceptance of the environmental management plan.

(3) The quantum of the financial provision must be determined in consultation with a competent authority or person and must include a detailed provision for costs that could be incurred in the event of—

(a) premature closure regarding—

(i) the rehabilitation of the land;

(ii) the prevention and management of pollution of the atmosphere;

(iii) the prevention and management of pollution of water and the soil; and

(iv) the prevention of spillage and leakage, into the ground, of chemical substances associated with wholesaling activities;

(b) decommissioning and final closure of the operation; and

(c) post-closure management of residual and latent environmental impacts.

(4) The holder of a wholesale licence must annually update and review the quantum of the financial provision—

(a) in consultation with a competent authority or person;

(b) as required in terms of the approved environmental management plan; or

(c) as requested by the Controller.

(5) Any inadequacy with regard to the financial provision must be rectified by the licensee—

(a) in an amendment of the environmental management plan, as the case may be; or

(b) as determined by the Controller.

12. General conditions with regard to wholesale licence

(1) A licensed wholesaling activity must remain a going concern.

(2) A licensed wholesaler must—

(a) purchase petroleum products only in bulk from other licensed wholesalers or licensed manufacturers, except in the case of importation of petroleum products;

(b) in the case of petroleum product sold in the Republic of South Africa, except in the case of liquefied petroleum gas and paraffin, only sell in bulk to—

(i) licensed manufacturers;

(ii) licensed wholesalers;

(iii) licensed retailers; or

(iv) end consumers for own consumption;

(c) not, except in the case of liquefied petroleum gas and paraffin, make use of a business practice, method of trading, agreement, arrangement, scheme or understanding which would result in a licensed wholesaler holding a retail licence except for training purpose;

(3) A licensed wholesaler must—

(a) obtain an undertaking signed by the consumer that the petroleum products purchased from that wholesaler are for own consumption;

(b) comply with the Charter;

(c) submit the information set out in regulation 17;

(d) if so instructed, submit to the Controller on a date and in the manner specified in the instruction—

(i) information necessary for the regulation of prices of petroleum products;

(ii) data on petroleum products, purchased or sold and petroleum products stock levels during the period specified in the instruction;

(iii) information relating to progress in complying with the objectives of the Charter; and

(iv) any other information which might be required for regulatory purposes;

(e) keep minimum working stock levels in compliance with applicable regulations;

(f) pay the annual licence fee determined in Annexure B before the anniversary of the licence;

(g) allow any person authorised by the Controller in accordance with the Act access to the premises where wholesaling is conducted for the purposes of inspections or conducting an investigation;

(h) at all times comply—

(i) with the Act and these Regulations; and

(ii) carry out legitimate instructions from the Controller; and

(i) inform the Controller in writing of any change of address or telephone number within 30 days of the relevant change taking effect.

(4) A wholesale licence, or a certified copy thereof, must be prominently displayed at the place of business, where any person entering the place of business may read it; and

(5) Any licence issued in terms of these Regulations—

(a) remains the property of the Department of Energy;

[Reg 12(5)(a) subs by reg 2 of GoN R1062 in G. 35984.]

(b) may be cancelled or suspended at any time subject to Regulation 20;

(c) may not be tempered with or defaced in any manner;

(d) may not be altered in any manner; and

(e) is not transferable.

13. Temporary wholesale licence

(1) A temporary wholesale licence may be issued only in respect of a licensed wholesaling activity upon the payment, by the applicant, of the temporary wholesale licence fee determined in Annexure B into the relevant regional bank account.

(2) An application for a temporary wholesale licence must be made to the Controller on an application form in the form contained in Annexure A and must—

(a) be in writing;

(b) only be in respect of a licensed wholesaling activity;

(c) include proof of hardship that would result if the licensed activity ceased to be licensed;

(d) be accompanied by a certified copy of the original licence certificate;

(e) be accompanied by a certified copy of the applicant’s identity document if the applicant is a natural person; and

(f) be accompanied by a certified copy of the business entity’s registration documents.

(3) The Controller may set special conditions for a temporary wholesale licence according to the circumstances presented in the application contemplated in subregulation (2).

14. Amendment of wholesale licence

(1) A licensed wholesaler may apply, in writing, to the Controller for a licence to be amended by—

(a) specifying the amendment sought; and

(b) providing reasons for seeking such an amendment.

(2) The Controller must consider the request contemplated in subregulation (1) and may issue an amended licence: Provided that—

(a) the amendment will not affect any rights, debts, liabilities or obligations of the licensee, nor render defective any legal proceedings by or against the licensee, and any legal proceedings that could have been continued or commenced by or against the licensed wholesaler prior to such change; and

(b) the applicant has paid the amendment licence fee determined in Annexure B.

15. Documents to be submitted in support of wholesale licence application

(1) An applicant for a wholesale licence must submit—

(a) a certified copy of the applicant’s identity document if the applicant is a natural person and, in the case of a non-South African citizen, a permanent residence permit or employment permit and proof of residence in South Africa, or proof of domicile in South Africa, as the case may be;

(b) certified copy of the business entity’s registration documents, if the applicant is a corporate entity or a trust;

(c) a declaration by applicant stating that the applicant is in compliance with the Charter or a statement of the applicant’s plans to meet the requirements of the Charter;

(d) a declaration by an applicant in respect of whom section 2D of the Act is applicable, stating that the applicant is in compliance with the Act, these Regulations and all other national, provincial and local government laws applicable for the operation of the activity concerned that are in force at the time the application is made;

(e) a list of all storage and distribution facilities intended to be used, including shared storage and distribution facilities, with specific reference—

(i) the location;

(ii) the capacity;

(iii) the ownership, including the ownership of the land on which the storage facilities are situated, and, in the case of shared ownership, the basis of sharing; and

(iv) the names of other wholesalers sharing the same facilities.

(2) The information required in terms of subregulation (1)(e) must be provided in respect of the different petroleum products which are to be stored.

16. Documentation to be submitted to Controller upon successful application

When an application has been successful, and upon request from the Controller, the applicant must—

(a) submit proof of payment of the relevant licence fee determined in Annexure B to the Controller; and

(b) in the case of a person in respect of whom section 2D of the Act is not applicable—

(i) submit an environmental management plan; and

(ii) provide proof of financial provision for the purposes of rehabilitation of the environment affected by the wholesaling activities upon cessation of such activities.

17. Information to be submitted annually to Controller by licensed wholesaler

A licensed wholesaler must submit to the Controller, in the form contained in Annexure A, not later than the end of February of each year, the following information in respect of the preceding calendar year—

(a) A declaration that the ownership of the licensed activity has not changed;

(c) the volumes of each type of petroleum product purchased and sold within the Republic of South Africa;
[Editor Note: Numbering as per original Gazette.]

(d) the volumes of each type of petroleum product purchased and sold outside the Republic of South Africa;

(e) the number of employees distinguished by race, gender and disability;

(f) information necessary for the regulation of prices of petroleum products;

(g) progress and an updated plan in respect of compliance with the objectives of the Charter; and

(h) with regard to training of persons in the employ of the licensed wholesaler, a report on—

(i) the number of them trained in general; and

(ii) the number and title of qualifications obtained by them which are accredited by the South African Qualifications Authority established in terms of the National Qualifications Framework Act, 1995 (Act 58 of 1995).

18. Application for duplicate wholesale licence

(1) When a wholesale licence has been lost, damaged or destroyed the licensed wholesaler must apply to the Controller for a duplicate thereof.

(2) An application contemplated in subregulation (1) must be accompanied by—

(a) an affidavit stating the reason or reasons for the application;

(b) a certified copy of the applicant’s identity document if the applicant is an individual;

(c) a certified copy of the business entity’s registration documents, if the applicant is a corporate entity, trust or association;

(d) the licence number of the licence that has been lost, damaged or destroyed; and

(e) proof of payment of the duplicate licence fee determined in Annexure B.

19. Surrender of licence

A licensed wholesaler may, at any time, by written notice surrender a licence to the Controller.

20. Suspension and cancellation of licence

(1) If a licensed wholesaler fails to comply with any provision of the Act or these Regulations, or any condition of a licence, or contravenes any such provision or condition, the Controller may, notwithstanding any other penalty, which may be imposed under the Act or any other law, and subject to subregulation (2), suspend or cancel the licence.

(2) The Controller may not suspend or cancel a licence unless—

(a) the licensed wholesaler has been informed in writing of the intention to cancel or suspend such licence—

(i) setting out the particulars of the alleged failure or contravention; and

(ii) calling upon the licensed wholesaler to make the representations to the Controller that may be necessary within 30 days after the date of that notice.

(b) The Controller has considered—

(i) steps taken by the licensed wholesaler to remedy the alleged failure or contravention concerned or to prevent any such failure or contravention from being repeated; and

(ii) any other relevant matter submitted by way of the representations contemplated in paragraph (a)(ii).

21. Termination of licence

(1) A licence ceases to be valid if—

(a) the licence is surrendered to the Controller;

(b) the licence is cancelled by the Controller in accordance with regulation 20(2); or

(c) the licensed activity is no longer a going concern.

(2) If a licence has ceased to be valid, the licensed wholesaler must surrender the licence to the Controller within a period of 14 days, from the date of receipt of the notification in which the licensed wholesaler is informed that the licence is no longer valid.

22. Decision-making by Controller

The Controller must make any decision required to be made by the Controller in these Regulations, within a period of 90 days: Provided that—

(1) in the case of an application for a licence by an applicant in respect of whom section 2D of the Act is applicable, the period commences from the date of acceptance of the application;

(2) in the case of an application for a licence by an applicant in respect of whom section 2D of the Act is not applicable, the period must commence from the date of receipt of proof of publication of the notice as contemplated in regulation 4(5); and

(3) in the first six months after the commencement of these Regulations, the period is 250 days.

23. Refusal to issue licence

If the Controller declines to issue any licence that may be issued under these Regulations, the applicant must be informed in writing, with reasons, of that decision.

24. Appeals

The period contemplated in section 12A(3) of the Act is 90 days

25. False declarations

The Controller may revoke or amend any decision or the award of any licence that was influenced by a false declaration, including any material nondisclosure, in accordance with regulation 20(2).

26. Additional information

The Controller may request the additional information from an applicant that may be necessary to enable the Controller to make a decision regarding the issuing of a licence.

27. The Controller may request additional information from a licensee that may be necessary for regulatory purposes.

28. Publication of data by Controller

The Controller must, not later than 12 months after the commencement of the Amendment Acts, and thereafter the end of June and December of each year, within 30 days of the end of those months, publish data on—

(a) the number of valid wholesale licences;

(b) the number of valid wholesale licences held by historically disadvantaged South Africans;

(c) the number of wholesale licences issued in the calendar year concerned;

(d) the number of lapsed wholesale licences in the calendar year concerned; and

(e) the licence numbers of all valid licences.

ANNEXURE A: FORMS

(Please note that a copy of the forms in Annexure A will be provided upon request. Kindly refer to our website for our contact details.)

[Annex A subs by reg 3 of GoN R1062 in G. 35984.]

ANNEXURE B: LICENCE FEES

Payment must be deposited into the following relevant regional account closest to the region where the application is lodged:

Include your reference number, which will be provided by the Controller, on the deposit slip.

[Annex B subs by reg 4 of GoN R1062 in G. 35984.]

---