THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 946/2022
In the matter between:
HIGHWAY JUNCTION (PTY) LTD FIRST APPELLANT
SWINBURNE VILLAGE HOMEOWNERS
ASSOCIATION NPC SECOND APPELLANT
SWINBURNE STORE CC THIRD APPELLANT
and
DI-THABENG TRUCK AND TAXI (PTY) LTD FIRST RESPONDENT
DI-THABENG LOGISTICS (PTY) LTD SECOND RESPONDENT
DI-THABENG FINANCE (PTY) LTD THIRD RESPONDENT
DI-THABENG FUEL SUPPLY (PTY) LTD FOURTH RESPONDENT
DI-THABENG FUEL MANAGEMENT (PTY) LTD FIFTH RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL
FREE STATE PROVINCIAL DEPARTMENT
OF ECONOMICS, SMALL BUSINESS
DEVELOPMENT, TOURISM AND
ENVIRONMENTAL AFFAIRS SIXTH RESPONDENT
MALUTI-A-PHOFUNG LOCAL
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MUNICIPALITY SEVENTH RESPONDENT
THE MINISTER OF WATER AND
SANITATION EIGHTH RESPONDENT
THE MINISTER OF MINERAL RESOURCES
AND ENERGY NINTH RESPONDENT
and
ENGEN PETROLEUM LIMITED AMICUS CURIAE
Neutral citation: Highway Junction (Pty) Ltd and Others v Di-Thabeng Truck and
Taxi (Pty) Ltd and Others (Case no 946/2022) [2024] ZASCA 31
(28 March 2024)
Coram: PONNAN, GORVEN and KGOELE JJA and SEEGOBIN and
KEIGHTLEY AJJA
Heard: 1 March 2024
Delivered: 28 March 2024
Summary: Interdictory relief – four interdicts sought – interdict granted which
adequately protects rights – appeal against refusal to grant further interdicts moot –
no basis for entering into whether a further clear right was established.
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__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: Free State Division of the High Court, Bloemfontein (Zietsman
AJ, sitting as court of first instance):
The cross-appeal is dismissed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA ( Ponnan and Kgoele JJA and Seegobin and Keightley AJJA
concurring)
[1] The matter before us is a cross-appeal where the main appeal has lapsed. The
parties will be referred to as in the cross-appeal. The first respondent, Di-Thabeng
Truck and Taxi (Pty) Ltd (T&T) , is the owner of immovable property described as
Portion 5 of the Farm Franshoek 1861, district of Harrismith, Free State Province
(the property). The property is zoned agricultural. A condition of title, which is
recorded in the zoning certificate, also allows use as a place where trucks may be
parked. T&T and the second to fifth respondents (the Di-Thabeng entities) were all
companies under the effective control of Mr PJ du Toit, until he died during July
2021.
[2] The first appellant, Highway Junction (Pty ) Ltd, conducts the business of a
truck-stop, where drivers can rest, and a fuel retail facility known as ‘The Highway
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Junction’. In excess of 1 500 trucks pass through it per day. The second appellant,
the Swinburne Home Owners Association NPC , is a homeowners association of a
housing development adjacent to the property. The third appellant, Swinburne Store
CC, is the developer of the Swinburne Township on land adjoining the property. The
sixth to ninth respondents played no part in either the high court or before us.
[3] The appellants contended that the Di -Thabeng entities were engaged in
unlawful activities on the property. These included:
(a) The commencement of listed activities under, and thus contraventions of, the
National Environmental Management Act 107 of 1998 (NEMA).
(b) The use of the property contrary to its approved zoning under the Town
Planning Scheme of the relevant municipality and contrary to the provisions of the
Spatial Planning Land Use Management Act 18 of 2013 (SPLUMA).
(c) The unlawful c onstruction of buildings in contravention of the National
Building Regulations and Building Standards Act 103 of 1977 (the NBR).
(d) The unlawful alteration of banks or characteristics of a watercourse on the
property without a water use licence in contravention of the National Water Act 36
of 1998 (the Water Act).
(e) The unlawful retailing of petroleum products in contravention of the
Petroleum Products Act 120 of 1977 (the PPA).
It is common cause that the Di-Thabeng entities were trading in petroleum products.
It is significant that they traded only from the property.
[4] As indicated, the property was zoned for agricultural use and the parking of
trucks. As regards point (e), T&T holds a wholesale licence under the PPA. Under
the PPA and the relevant regulations, the wholesale licence entitles T&T to sell only
in bulk (fuel wholesaling). The word ‘bulk’ is defined in the regulations as meaning
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‘1500 litres or more, per transaction of petroleum products’. The operative phrase is
‘per transaction’. The requirement of selling in bulk does not apply to the retail sale
of fuel (fuel retailing).
[5] The system employed by T&T (the impugned system) was to sell fuel in what
it termed ‘transaction intervals’ of 1 500 litres. The customer was required to pay for
a minimum of 1 500 litres of fuel but did not have to take immediate delivery of the
full 1 500 litres. It was permitted to collect as and when it need ed the fuel in
quantities of less than 1 500 litres. So, for example, having paid for a minimum of
1 500 litres of fuel, the customer could collect 200 litres, then 300 litres, and so on
until the quantity paid for had been collected. The real issue is whether the regulation
envisages that a transaction comprises the simultaneous sale and delivery of a
minimum of 1 500 litres of fuel or whether it comprises the sale of a minimum of
1 500 litres without the need for contemporaneous delivery. The appellants
contended for the former and the Di-Thabeng entities for the latter interpretation. As
such, the appellants contended that the impugned system amounted to fuel retailing,
for which the Di-Thabeng entities admittedly did not have a licence, and not fuel
wholesaling.
[6] The appellants launched an application for a final interdict in the Free State
Division of the High Court, Bloemfontein (the high court). The essential relief
sought was:
1 The Di-Thabeng entities are interdicted and/or restrained from any further construction on
the property until:
1.1 the necessary environmental approvals have been obtained under NEMA;
1.2 a water use licence has been obtained under the Water Act;
1.3 land use approval has been obtained under the Municipal Planning By-Law; and
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1.4 a building plan approval has been obtained under the NBR.
2 The Di-Thabeng entities are interdicted and/or restrained from using the property for any
uses other than agricultural until:
2.1 the necessary environmental approvals have been obtained under NEMA;
2.2 the use of land has been changed in terms of the provisions of SPLUMA and/or the
Municipal Planning By-Law; and
2.3 the land use accords with the approved building plans on the property.
3 The Di-Thabeng entities are interdicted from fuel retailing at or from the property until a
site and retail licence has been obtained under the PPA.
4 The Di -Thabeng entities are ordered to desist from breaching their duty of care as
envisioned by s 28 of NEMA and s 19 of the Water Act and remedy their breaches of duty of care
through reasonable measures within 60 days from the date of this order.
5 The Di-Thabeng entities are directed to pay the respondents’ costs jointly and severally,
the one paying, the others to be absolved.
The relief in paragraphs 1 and 4 of the notice of motion was not persisted in. The
decision confronting the high court was thus whether to grant one or both of the
interdicts sought in paragraphs 2 and 3.
[7] The high court, per Zietsman AJ, granted the following order:
‘1. The [Di-Thabeng entities] are interdicted and/or restrained from using the property, known as
Portion 5 of the Farm Franshoek No 1861, Swinburne, Free State Province, for any uses other than
agricultural, and the parking of trucks, until:
1.1 the use of the land has been changed in terms of the provisions of the Spatial Planning and
Land Use Management Act, 16 of 2013 and/or the Municipal Planning By-Law of 2015 read with
the Town Planning Scheme 51969.
2. Each party shall pay its own costs.’
It can be seen that the relief granted was not framed in the precise terms of either of
the interdicts sought in paragraphs 2 or 3 of the notice of motion. It included much
the interdicts sought in paragraphs 2 or 3 of the notice of motion. It included much
of the relief sought in paragraph 2. The clear effect is that the interdict prevents the
Di-Thabeng entities from using the property to conduct any trading, even of fuel
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wholesaling. The high court did not grant the interdict sought in paragraph 3 of the
notice of motion.
[8] The Di-Thabeng entities sought, and were granted, leave by the high court to
appeal to this court against the whole of the judgment. The appellants were granted
leave by the high court to cross -appeal to this court against the refusal to grant the
interdict sought in paragraph 3. This court admitted Engen Petroleum Ltd as amicus
curiae. In the event, the amicus put up heads of argument but, for reasons that shall
become apparent, was not called upon to present any oral argument. When the main
appeal lapsed, the Di-Thabeng entities could no longer contest the interdict granted
by the high court.
[9] Before us, the appellants limited the ambit of the cross -appeal to the refusal
of the high court to grant the interdict against fuel retailing on the property until a
site licence and a retail licence ha d been obtained under the PPA. This was the
second final interdict sought in the high court. The appellants were requested to
address the court on whether that relief was necessary in order to protect their rights.
Put differently, they were asked if , in the light of the interdict granted, this court
should entertain an appeal against the refusal by the high court to grant a second
interdict.
[10] The appellants quite correctly did not contend that they were not adequately
protected at present. The cross-appeal was premised on the submission that: (a) the
Di-Thabeng entities may yet comply with paragraph 1.1 of order of the high court;
and, (b) in that event, the appellants would be bound in any future litigation by the
high court’s findings against the interpretation contended for by them . As such, if
this court did not correct those findings, the appellants could be met with pleas of
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res judicata (it has been dec ided), or issue estoppel , if they were to subsequently
approach a court for that relief. That submission might have had some weight if the
issue had been decided by the high court. But, in the view I take of the matter, that
was not the case.
[11] It must immediately be acknowledged that the judgment of the high court is
not a model of clarity. That applies, in particular, to the specific issue in question. In
dealing with it, the high court appears to have set out to interpret what was meant by
a transaction. The legal approach to interpretation was neither articulated nor
applied. That approach should have included an evaluation of language, context and
purpose.1 In addition, no reasoning was employed in essaying the interpretation. The
high court seemed to say that it could not fault the impugned system applied by the
Di-Thabeng entities . However , no clear finding was made since the high court
immediately went on to say, ‘. . . however at least a bona fide dispute exists as to the
interpretation of [what is meant by] one transaction’. That simply restates the issue.
It was precisely what was before the high court in order to establish whether or not
the appellants had shown a clear right for the second inte rdict. The conclusion set
out above falls far short of a finding on that issue. It is thus open to the appellants,
or anyone else, to approach a court afresh for an interpretation, should the need arise.
[12] Since an interdict adequately protecting the rights of the appellants is in place
and may be enforced, the relief requesting a further interdict on different grounds
does not present a live issue. That renders the matter moot. In National Coalition for
1 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.
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Gay and Lesbian Equality and Others v Minister of Home Affairs and Others ,2 the
Constitutional Court held that:
‘A case is moot and therefore not justiciable if it no longer presents an existing or live controversy
which should exist if the Court is to avoid giving advisory opinions on abstract propositions of
law.’
This approach was endorsed in Pheko and Others v Ekurhuleni Metropolitan
Municipality:
‘. . . if the applicants’ rights . . . are no longer threatened . . . it will not be in the interests of justice
to grant leave to appeal directly to this court.’3
[13] That dictum applies foursquare to this matter. The appellants enjoy effective
protection of all of their rights in the overarching interdict against trading on the
property. Properly considered, the cross-appeal should have been made conditional
on the appeal against the interdict by the Di-Thabeng entities proceeding. When the
appeal lapsed, the need for any further interdict on different grounds became moot.
[14] Apart from the matter being moot, there are further considerations against
arriving at a finding on the interpretation of a transaction. The high court has not yet
spoken the final word on the question. In that sense, this court would be pronouncing
on the question as both a court of first and also potentia lly last instance. Moreover,
the amicus curiae was admitted to the appeal on the basis that the impugned system
was being utilised by other entities who held licences to wholesale fuel. The issue
thus has a far wider reach than that of the present dispute. It is one in which parties
other than those participating in the appeal have an interest and might reasonably
2 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC
17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 para 21, fn 18.
3 Pheko and Others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC) para 31.
References omitted.
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expect to be heard. In those circumstances, it would not be appropriate to pronounce
on the matter. In West Coast Rock Lobst er Association and Others v Minister of
Environmental Affairs and Tourism and Others, even where a declaratory order had
been sought, this court took that factor into account:
‘All interested parties were not before the court below and there was no indication on the record
that a declaratory order, assuming it to be enforceable in its proposed form, would have any
practical effect. These factors in themselves presented an insurmountable obstacle for the
appellants.’4
[15] In the present matter, onl y interdictory relief was sought by the appellants
both in the high court and before us . No declaratory relief was sought. The issue is
not before us in that form. As such it is even less appropriate to consider it than was
the case in West Coast Rock Lobster Association. In any event, granting a declaration
of rights is a matter within the discretion of a court. I do not believe it appropriate to
do so in the circumstances of this matter.
[16] It remains to consider the question of costs. Once the main appeal lapsed, there
was no need for a further interdict in order to protect the appellants. Strictly
speaking, the cross -appeal should have been withdrawn. However, the appellants
can hardly be faulted for having persisted in the cross-appeal in the light of the
unclear judgment of the high court concerning a finding on the interpretation. As a
result, it will meet the situation if no order as to costs is made.
4 West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and Others [2010]
ZASCA 114; [2011] 1 All SA 487 (SCA) para 46.
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[17] In the result, the cross-appeal is dismissed.
____________________
T R GORVEN
JUDGE OF APPEAL
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Appearances
For the appellant: H J De Waal SC with J S Rautenbach
Instructed by: Cullinan and Associates, Cape Town
Phatshoane Henney Attorneys, Bloemfontein
For the respondents: M M Rip SC with F H Nel
Instructed by: Jacques Classen Incorporated, Pretoria
Graham Attorneys, Bloemfontein
For the amicus curiae: D W Eades
Richard Evans and Associates, Kloof
Phatshoane Henny Attorneys, Bloemfontein.