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[2023] ZAFSHC 86
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Petrol Green Filling Station CC v VKB Fuels (Pty) Ltd and Others (3794/2022) [2023] ZAFSHC 86 (22 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.:
3794/2022
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
PETROL
GREEN FILLING STATION CC
Applicant
and
VKB
FUELS (PTY) LTD
First Respondent
VKB
BELEGGINGS (PTY) LTD
Second Respondent
VRYSTAAT
KOÖPERASIE CC
Third respondent
THE
MINISTER: MINERAL RESOURCES AND ENERGY
Fourth Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
Fifth Respondent
CORAM:
VAN RHYN, J
HEARD ON:
2 FEBRUARY 2023
DELIVERED ON:
22 MARCH 2023
[1]
On 11 August 2022 Petrol Green Filling Station CC (the “applicant”)
launched
an application against VKB Fuels (Pty) Ltd, first respondent
and VKB Beleggings (Pty) Ltd, second respond, two private companies
and the third respondent, Vrystaat Koöperasie CC for an order in
terms whereof the first and second respondents are interdicted
from
conducting the sale of petroleum products from Erf [....], Vrede,
Free State Province (the (“property”). The interdict
is
to operate for so long as there is no licence duly issued by the
fifth respondent, the Controller of Petroleum Products (“the
“Controller”) in respect of the relevant property. The
Minister: Mineral Resources and Energy (the “Minister”)
is cited as the fourth respondent. The Minister filed a notice to
abide by the decision of this court.
[2]
The application is opposed by the first, second and third respondents
(“VKB”).
The application for an interdict was brought by
the applicant on the basis that the first and second respondents are
illegally
conducting the retailing of fuel at a newly built fuel
filling station at the property. The property is situated across the
road
from Erf [....], the property on which the applicant is
conducting a fuel filling station.
[3]
It is alleged by the applicant that VKB has been retailing diesel to
its members from
two above ground storage tanks situated on Erf
[....], Vrede for several years. During 2021 a new petrol station was
built on Erf
[....], Vrede. The deponent to the applicant’s
founding affidavit, Mr J L van Tonder made certain enquiries and
learned that
VKB had acquired Erf [....] and consolidated Erf [....]
with Erf [....]. After such consolidation, Erf [....] and Erf [....]
are
reflected as Erf [....], being the relevant property in respect
of this application.
[4]
Subsequent to the consolidation process VKB applied to the Controller
for an amendment
of the licence that existed in respect of Erf [....]
with the result that the licence would apply to the property. The
Controller
granted the amendment. During July 2021 the applicant
lodged an appeal to the Minister against the amendment granted by the
Controller.
The Minister upheld the appeal.
[5]
On 5 July 2022, the applicant, through its attorney at Pretoria,
demanded that the
first and second respondent cease from retailing
fuel at the property. On 13 July 2022 the first and second
respondents, through
a letter from their attorney, responded that the
selling of fuel will continue and that VKB is applying for “new”
Licences.
In VKB’s answering affidavit it is stated that there
is no need for an interdict as VKB is not retailing fuel in Vrede.
[6]
From the answering affidavit it is evident that the decision of the
Minister was delivered
on 7 March 2022 in terms whereof certain
amendments to VKB’s licences were set aside (“the appeal
decision”).
The appeal decision is not disputed by VKB. In
response the Controller cancelled all VKB’s fuel licences on 28
June 2022
(“the cancellation decision”).
[7]
On behalf of VKB it was argued that, since the controller issued the
notice in terms
of the provisions of section 2A(2)(a) to cease
retailing fuel at Vrede on 5 August 2022, VKB had stopped trading on
the same day.
[8]
This application has a long history regarding the change of hands in
the ownership
of the applicant, numerous correspondence exchanged
between the parties, a counter application and further interlocutory
applications.
There are other related matters, such as the
application for review brought by VKB against the appeal decision of
the Minister.
Furthermore, the cancellation decision issued by the
Controller is now the subject of a pending internal appeal brought by
VKB
on 29 August 2022.
[9]
Both the main application and the counter-application were enrolled
by VKB to be heard
on 2 February 2023. In the counter application VKB
seeks a declarator that the fuel retail licence issued to the
applicant on 22
September 2015 is no longer valid. Prior to the
commencement of the hearing of both the main and the
counter-application, the parties
reached an agreement in terms
whereof the counter-application be removed from the Free State
Division of the High Court, Bloemfontein
and be transferred to the
Gauteng Division of the High Court, Pretoria.
[10]
The parties furthermore agreed that an application will be made on an
unopposed basis in the
Gauteng Division of the High Court, Pretoria
for the consolidation of the counter-application with the proceedings
pending under
Case No 022108/2022 in the Gauteng Division of the High
Court, Pretoria. The agreement to remove the counter-application and
transfer
same to the High Court, Pretoria was set out in a draft
order which was made an order of this court.
[11]
At the hearing of the main application Mr Savvas, counsel on behalf
of the applicant, argued
that the main application is not ripe for
hearing and should not have been enrolled for hearing by VKB.
[12]
The retail of fuel products at a site is regulated by the Petroleum
Products Amendment Act
[1]
and
the Regulations for Site and Retail Licences
[2]
.
In section 1 “retail” is defined as: “the sale of
petroleum products to an end-consumer at a site and retailer
shall be
interpreted accordingly”. The definition of “retail
licence” is: “a licence to conduct the business
of a
retailer”. In terms of the provisions of section 2A(1)(d) of
the Act a person may not retail prescribed petroleum products
without
a retail licence.
[13]
A person who wants to sell prescribed petroleum products to end-users
has to apply for a licence
in terms of subsection (1) of the Act and
must, in the case of a retail and wholesale licence, be the owner of
the business concerned
and do so in the form and manner prescribed by
the Act. Section 2B of the Act provides that the Controller of
Petroleum Products
must issue licences in accordance with the
provisions of the Act, which, in the case of a site, there has to be
a corresponding
valid retail licence.
[3]
[14]
In terms of the Act, licences for filling stations are “land
locked” in the sense
that they apply strictly- down to GPS
coordinates specified in the licence application – to a
location on a defined piece
of land. On behalf of the applicant it
was contended that VKB, on the pretence that only the number of the
erf has changed from
Erf [....] to Erf [....] applied to the
Controller for, basically, a clerical amendment of the erf number to
reflect the property
from where the retail of fuel is to be
conducted. The applicant therefore contends that VKB ignored the
Minister’s ruling
and continued to operate illegally. Hence the
application for an interdict. On the grounds that VKB stopped
retailing from the
property, the application for an interdict was not
enrolled for hearing.
[15]
Ms Fourie, counsel on behalf of VKB argued that even though VKB does
not agree with the decision
of the Controller to issue a notice to
cease trading in respect of VKB, no retail of fuel has been conducted
since 5 August 2022.
The applicant issued the application for an
interdict on 11 August 2022, after taking cognisance of VKB’s
decision to stop
any retail at the property. Regarding the merits of
the interdict, it was submitted that the applicant does not have a
valid retail
licence and is not entitled to retail fuel. Therefore,
the applicant does not have standing to bring this application.
[16]
It is common cause that VKB has ceased to retail fuel at the property
since 5 August 2022, a
period of almost 6 months prior to the hearing
of this application for an interdict. The applicant, however, argued
that VKB disregarded
the Minister’s rulings since 3 March 2022
and efforts to settle the matter amicable through the parties’
attorneys
were futile. Since VKB has raised the invalidity of the
applicant’s licence, the Minister has requested an
investigation
regarding these allegations. VKB furthermore seeks an
order in the internal appeal that the licence of the applicant be
declared
invalid.
[17]
Mr Savvas, not only in his Heads of Argument and Practice Note, but
also at the commencement
of this matter argued that the matter is not
ripe for hearing and should not have been enrolled by VKB at this
stage. I agree with
this submission. The question whether the
applicant has a valid licence impacts upon the
locus standi
of
the applicant in the application for an interdict. The question as to
the validity of VKB’s licence is also pending before
other
fora.
These challenges are not irrelevant to the application
at hand. The appropriate forum to deal with these issues are the
internal
appeal and review procedures which has already been
initiated by VKB.
[18]
This matter is not ripe for hearing and had been prematurely set
down. The issue as to costs
should be addressed at a later stage
subsequent to the finalisation of the issues regarding the validity
of VKB’s licence
and the
locus standi
of the applicant.
[19]
ORDER:
1.
The application is removed from the roll.
2.
Costs to stand over for later adjudication.
VAN
RHYN, J
On behalf of the
Applicant:
ADV B G SAVVAS
Instructed
by:
J L JORDAAN ATTORNEYS
BLOEMFONTEIN
On behalf of the
1
st,
2
ndand 3rd
Respondenst:
ADV. N FOURIE
Instructed
by:
SYMINGTON DE KOK ATTORNEYS
BLOEMFONTEIN
[1]
Act 58 of 2003.
[2]
As contained in No R 286, GG 28665 of 27 March 2006.
[3]
Section2B(3)(c).