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2023
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[2023] ZAECELLC 14
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Total Brite Star Service Station CC v Enspa Trading Company (Pty) Ltd and Others (1661/2021) [2023] ZAECELLC 14 (6 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. 1661/2021
In the matter between:
TOTAL
BRITE STAR SERVICE STATION CC
Applicant
and
ENSPA
TRADING COMPANY (PTY) LIMITED
First
Respondent
SPARGS
SELLA YE MOTO (PTY) LIMITED
Second
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS,
EASTERN
CAPE
Third
Respondent
THE
MINISTER OF THE DEPARTMENT OF MINERAL
RESOURCES
AND ENERGY
Fourth
Respondent
JUDGMENT
LAING J
[1]
This is an application for leave to appeal
in relation to a matter that involves the development and operation
of a filling station
at Ngcobo in the Eastern Cape. The parties will
be described as they were in the main application.
[2]
Previously, the applicant applied for an
order,
inter alia
,
staying the first and second respondents’ exercise of their
rights in terms of the site and retail licences granted to them
by
the third respondent. The court granted an order declaring that the
effect of the third respondent’s decision to grant
the above
licences was suspended, pending the determination of the applicant’s
appeal to the fourth respondent. No order
was made regarding costs.
[3]
The
first and second respondents have sought leave to appeal against only
those portions of the judgment that found that the appeal
to the
fourth respondent had the effect of suspending the third respondent’s
decision. The grounds for the application can
be summarised as
follows: the court erred by failing to interpret the Petroleum
Products Act 120 of 1977 (‘PPA’) purposefully
and by
finding that there was nothing to rebut the presumption that the
common law rule of automatic suspension applied; the court
erred in
not evaluating and finding that the nature of the procedure under
section 12A of the PPA was a wide appeal, akin to a
review; the court
failed to consider the effect of sections 2A(c) and (d),
[1]
and 2B(3), such that the third respondent’s decision was not
suspended; and the court erred in failing to find that the effect
of
lodging an appeal under section 12A did not have the effect of
suspending the third respondent’s decision to issue site
and
retail licences.
[4]
The
provisions of
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
govern the basis upon which the application must be decided. They
provide that leave to appeal may only be given where,
inter
alia
,
the court is of the opinion that the appeal would have a reasonable
prospect of success or where there is some other compelling
reason
why the appeal should be heard. Consequent to the repeal of the
Supreme Court Act 59 of 1959, it is generally accepted that
a
stricter test applies.
[2]
[5]
In
the present matter, the first and second respondents have argued that
section 12A gives rise to a wide appeal, akin to a review.
The term,
‘appeal’, is sometimes used to describe what is
essentially a review.
[3]
Hoexter
and Penfold comment as follows:
‘
In
the leading case,
Tikly
v Johannes NO
,
[4]
Trollip J distinguished between two types of appeal, as well as a
third type in which “appeal” denotes review. The
first
type, appeal in the wide sense (or simply wide appeal), is a complete
rehearing and redetermination on the merits of a case,
with or
without additional evidence or information. This means that the
appellate body is not confined to the record of the body
a
quo
.
With the second type, ordinary or narrow appeal, the rehearing on the
merits is limited to the evidence on which the decision
was
originally given, and is thus restricted to the record of the
authority
a
quo
.’
[5]
[6]
For the meaning of ‘appeal’
when used within the context of what is, in substance, a review, it
is helpful to consider
Trollip J’s observations:
‘
The
word “appeal” can have different connotations. In so far
as is relevant to these proceedings it may mean:
…
a
review, that is, a limited re-hearing with or without additional
evidence or information to determine, not whether the decision
under
appeal was correct or not, but whether the arbiters had exercised
their powers and discretion honestly and properly…’
[6]
[7]
Returning to section 12A of the PPA, an
appeal lodged in terms of sub-section (1) must be accompanied by: (a)
a written explanation
setting out the nature of the appeal; and (b)
‘any documentary evidence upon which the appeal is based’.
The contents
of (b) indeed suggest that the provisions give rise to a
wide appeal. However, it is not at all apparent that the provisions
provide
the fourth respondent with the functions and powers necessary
to review the third respondent’s decision. The text does not
permit such a broad interpretation.
[8]
The provisions of sections 2A(1)(c) and
(d), and 2B(3), take the matter no further. They merely indicate,
firstly, that the holding
or development of a site and the retail of
prescribed petroleum products are prohibited without a suitable
licence. They indicate,
secondly, that a licence issued by the third
respondent remains valid provided that certain conditions, as
stipulated, are met.
There is nothing in the above provisions to
rebut the presumption that the common law rule of automatic
suspension applies when
an appeal is lodged against an administrative
decision.
[9]
The court addressed the first and second
respondents’ arguments in paragraphs [48] to [59] of the
judgment. It stands by its
findings.
[10]
The first and second respondents also
contended, in argument, that the absence of any direct authority
regarding the interpretation
of section 12A meant that the matter
warranted the attention of an appeal court. This constituted a
compelling reason for why leave
to appeal should be granted. The
applicant, in contrast, pointed out that the first and second
respondents did not rely on this
as a ground for their application.
In any event, it said, if the first and second respondents’
contention was to be accepted
then it would imply that leave would
have to be given for a finding on any piece of legislation.
[11]
Van
Loggerenberg remarks that, as far as compelling reasons are
concerned, the merits and the prospects of success remain vitally
important and are often decisive.
[7]
A compelling reason includes the fact that the decision for which
leave to appeal is sought involves an important question of law.
[8]
[12]
The relevant provisions of section
17(1)(a)
of the
Superior Courts Act 10 of 2013
should be understood as
contemplating a situation where leave must be granted because the
circumstances constrain or force or oblige
the court to refer the
matter to an appeal court for hearing. The reasons for the referral
must be compelling. The threshold for
an application of this nature
is higher than before and a court cannot grant leave merely because
it would be useful to ascertain,
for example, whether an appeal court
would find that a well-established principle of the common law finds
application within the
context of a certain piece of legislation,
notwithstanding the findings already made by the court
a
quo
.
[13]
The present court is not persuaded that the
first and second respondents have demonstrated that there are
sufficient merits and
prospects of success in the intended appeal
proceedings. Based on the authorities considered in the judgment, a
rebuttable presumption
exists that the common law rule of automatic
suspension applies when an appeal is lodged against an administrative
decision, and
the presumption can be rebutted to the extent that the
empowering legislation indicates otherwise. The text of the PPA does
not
support the first and second respondents’ argument that the
effect of the third respondent’s decision has not been
suspended, pending the determination of the appeal to the fourth
respondent.
[14]
The court made the above finding in its
judgment. Such finding does not, in the circumstances, involve an
important question of
law that constrains, forces, or obliges the
court to grant leave to the first and second respondents.
[15]
Consequently, the following order is made:
(a)
the application for leave to appeal is
dismissed; and
(b)
the first and second respondents are
directed to pay the applicant’s costs.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCE
For
the applicant:
Adv
Venter,
Instructed
by
IC
Clark Inc,
East
London.
For
the 1
st
and 2
nd
respondents:
Adv
De La Harpe SC with Adv Watt,
Instructed
by
Drake
Flemmer & Orsmond Attorneys,
East
London.
Date
of hearing:
05/03/23
Date
of delivery of judgment:
06/06/23
[1]
It
is assumed that the first and second respondents intended to refer
to
section 2A(1)(c)
and (d).
[2]
See
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen
(unreported, LCC case no. LCC 14R/2014, 3 November 2014), cited with
approval in
The
Acting National Director of Public Prosecution v Democratic Alliance
(unreported, GP case no. 19577/09, 24 June 2016. Furthermore, see
Notshokovu
v S
(unreported, SCA case no. 157/15, 7 September 2016).
[3]
This was firmly recognized in
Tikly
v Johannes NO
1963 (2) SA 588
(T), at 590F-591A, as discussed further.
[4]
Ibid.
[5]
Cora
Hoexter
and Glenn Penfold
Administrative
Law in South Africa
(2022) 89.
[6]
Tikly v
Johannes
(note 3 above).
[7]
DE van Loggerenberg
Erasmus:
Superior Court Practice
(Jutastat e-publications, RS 18, 2022), A2-57. See, too,
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016 (3) SA 317
(SCA), at 330C; and
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA), at paragraph [2].
[8]
Caratco
(note 7 above).