Du Toit and Another v Hentiq 1083 (Pty) Ltd and Others (2078/2021) [2022] ZAFSHC 19 (11 February 2022)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 19
|

|

Du Toit and Another v Hentiq 1083 (Pty) Ltd and Others (2078/2021) [2022] ZAFSHC 19 (11 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Case
no:
2078/2021
In
the matter between:
JAN
JACOB STEPHANUS DU
TOIT
1
st
Applicant
AFDT
EIENDOMME (PTY)
LTD
2
nd
Applicant
and
HENTIQ
1083 (PTY)
LTD
1
st
Respondent
THE
MEC: ECONOMIC, SMALL BUSINESS DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS, FREE STATE
2
nd
Respondent
NKETOANA
LOCAL
MUNICIPALITY
3
rd
Respondent
CORAM:
JP
DAFFUE J
HEARD
ON:
10
February 2022
DELIVERED
ON:
11 February 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 16:30 on 11 February
2022.
I
INTRODUCTION
[1]
The owners of two immovable properties situated on the corner of
Voortrekker
and Du Plessis Streets in the small town of Petrus Steyn
are at loggerheads with each other.  Both properties, adjacent
to each
other with Voortrekker Street separating them, are being used
for commercial purposes as will be explained later herein.  The
use of the one property in alleged contravention with certain
conditions imposed on the owner when Environmental Authorisation was
granted to it is the focal point of the parties’ contentions.
II
THE PARTIES
[2]
The first applicant is Jan Jacob Stephanus du Toit, the owner of the
immovable
property described as erf 381, Petrus Steyn which he
developed by erecting buildings for commercial use.  The
property was till
recently zoned for residential purposes.
[3]
The second applicant is AFDT Eiendomme (Pty) Ltd, a company that
conducts
business as OK Mini Market and OK Liquor Store on the
aforesaid premises.  It is the first applicant’s tenant.
[4]
The first respondent is Hentiq 1083 (Pty) Ltd, a registered company
and
owner of Erf 599, Petrus Steyn on which property the Q4 Riemland
Country Stop and Filling Station business is conducted.
[5]
The MEC:  Economic, Small Business Development, Tourism and
Environment
Affairs, cited as the second respondent and the Nketoana
Local Municipality cited as the third respondent have not played any
role
in the opposed proceedings before me.  No relief was sought
against the third respondent whilst the matter between the applicants
and the second respondent was settled as will be shown later herein
III
THE RELIEF SOUGHT
[6]
The following relief was sought in the notice of motion:
“
1.
That the First Respondent comply with the approval conditions of
Environmental Authorisation no:
EMB/51/18/52 by erecting and
keeping displayed, within 21 days from date of this order, signs to
prohibit entrance to the Filling
Station situated on Erf 599, Petrus
Steyn, from Voortrekker Street, Petrus Steyn and to take all
reasonable measures to prevent vehicles
from entering the filling
station from Voortrekker Street, Petrus Steyn.
2.
That the second respondent enforce full compliance by the First
Respondent with the Environmental Authorisation
No.
EMB/51/18/52 immediately and to monitor compliance on an ongoing
basis.
3.
That the Second Respondent consider the impact of the Environmental
Authorisation on the municipal infrastructure
and traffic impact in
and on Voortrekker Street, Petrus Steyn and to report back to the
Court thereon, with copies of the report
to e provided to all
parties, within 60 days from this order.
4.
That the Applicant be granted leave to approach the Court on the same
papers, duly amplified, for further
and, or ancillary relief if
necessary.
5.
That the First Respondent pay the costs of the application,
alternatively that the First Respondent and
such other Respondents
opposing the application pay the costs, jointly and severally, the
one to pay, the other to be absolved.”
[7]
Prayers 2, 3 and 4 have become academic insofar as the applicants and
the second respondent
have settled their disputes.  As
requested, the draft order handed up from the bar by Mr Rautenbach on
behalf of the applicants
at the onset, confirmed by Ms Ngubeni on
behalf of the second respondent was made an order of court.  The
agreement reads as
follows:
“
The following
order is made by agreement between the applicants and the second
respondent in respect of the applicants’ application
against the
second respondent:
1.
The second respondent shall monitor the compliance by the first
respondent with the Environmental
Authorisation no.
EMB/51/18/52.
2.
Each party to pay its own costs.”
For clarity purposes the relief
agreed upon will be inserted in the final order to be made herein.
[8]
Consequently, I was requested to adjudicate only the dispute between
the applicants and first respondent
pertaining to prayer 1 of the
notice of motion and to make an appropriate costs order.
IV
HISTORICAL BACKGROUND
[9]
After the first applicant purchased his immovable property in 2016 he
started to develop
the property in order to rent it out for
commercial purposes.  The OK Mini Market and OK Liquor Store are
being operated on
the premises by the second respondent.  These
businesses are accessed by patrons from Voortrekker Street and for
that purpose
a parking area has been created in front of the
businesses.
[10]     A filling
station was already being operated on erf 599 across Voortrekker
Street, albeit on a much smaller
scale than today.  During or
about 2018 the first respondent intended to extend its business
operations by installing five new
underground fuel tanks and by
undertaking new internal and shop layouts to the administrative block
and commercial building on the
property.
[11]     The
first respondent was required to obtain Environmental Authorisation
from the second respondent in
terms of the provisions of the National
Environmental Management Act (“Nema”).
[1]
[12]     In
order to obtain Environmental Authorisation, the applicants as
affected parties were provided with
a draft Basic Assessment Report
compiled on behalf of the first respondent, inviting them to comment
thereon.  The first respondent
duly commented on 19 September
2018,
inter alia
indicating that it did not have objections against the suggested
development, but against the impact of the enlarged operations on
the
road network.
[2]
[13]     The
first respondent’s application for Environmental Authorisation was
ultimately approved by the second
respondent on 26 April 2019.
[3]
[14]     On
13 May 2019 the first applicant submitted an appeal against the
Environmental Authorisation to the
second respondent, relying on
several grounds of appeal, which I do not deem necessary to either
quote or summarise.
[4]
This appeal was eventually dismissed without providing any
reasons.
[5]
[15]
However, at a later stage a site inspection was held at the first
respondent’s property as arranged
by the second respondent’s
office.
[16]     It
is the applicants’ case that the first respondent is allowed to
conduct its activities at the filling
station contrary to the
conditions imposed.  Reliance is placed on the following:
“
The new layout
and the re-design of the filling station allows for cars and bikes
entrance and exit only from Du Plessis Street.
Trucks may only
enter from Du Plessis Street, and may only exit into Voortrekker
Street”
[6]
[17]   Despite numerous
complaints brought to the attention of first and second respondents,
it is the applicants’ case
that trucks are still entering the
filling station from Voortrekker Street on a daily basis.
[7]
Proof of the alleged contravention is provided in numerous paragraphs
of the founding affidavit and it is specifically placed
on record
that no warning signs have been erected by the first respondent at
the entrance in Voortrekker Street to prevent trucks
from entering
the filling station from that street.
[8]
[18]
Insofar as neither the first, nor the second respondent adheres to
requests that measures be put in place
to prevent the alleged
unlawful entrance of trucks to the filling station from Voortrekker
Street, no proper responses were received
and consequently, the
application was filed.
V
THE DISPUTE
[19]
The first respondent disputes that the applicants are entitled to the
relief claimed
in paragraph 1 of the notice of motion quoted above.
It is submitted that the “
relief
is so vague and uncertain, that it should be dismissed for that
reason alone.”
[9]
[20]
It is specifically pointed out that Voortrekker street is a public
road and that the
first respondent is not entitled to erect and
display any traffic signs at this specific entrance as it wishes and
furthermore, that
it is not entitled to regulate traffic.
[21]
It is also submitted by the first respondent that Petrus Steyn is a
small town and
there is not really an issue of peak traffic as the
applicants want to place on record.  In any event, the decision
of the MEC
was never taken on review to the High Court.
[22]
Furthermore and specifically pertaining to the merits, it is the
first respondent’s
case that the applicants read into the
Environmental Authorisation conditions that do not exist.
[10]
[23]
Notwithstanding the first respondent’s comments it is admitted that
the tankers that
have to refill the fuel and diesel tanks at the
first respondent’s premises arrive at the premises at most three
times a week and
enter from Voortrekkers Street to enable it to fill
up the fuel and diesel tanks.  The tankers’ equipment and gear
are situated
on the left hand side thereof, making it impossible to
do refilling if entering from Du Plessis Street.
[11]
All other patron heavy duty vehicles enter from Du Plessis Street and
exit at Voortrekker Street, the reason being that the
first
respondent has erected a gate which is operated by a gate control
motor and remote at the exit point in Voortrekker Street,
disallowing
trucks to enter the filling station from Voortrekker Street without
prior arrangement.
[12]
VI
EVALUATION OF THE SUBMISSIONS IN LIGHT OF THE AUTHORITIES
[24]
It is the applicants’ case that the first respondent has at least
admitted to illegal
conduct by allowing breach of the approval
conditions insofar as diesel and fuel tankers are allowed to enter
the premises from Voortrekker
Street.  Mr Rautenbach on behalf
of the Applicants relied heavily on this alleged illegal conduct with
reference to
Lester v
Ndlambe Municipality and Another,
[13]
confirming the principle laid down in
Perry
Urban Areas Health Board v Sandhurst Gardens (Pty) Ltd)
[14]
that
“
where the breach
of law interdicted is a breach of a statute a stricter approach is
adopted.”
[15]
[25]
It is trite that where the law maker has prohibited the doing of an
act in the interest
of a person or class of persons, such person may
enforce the prohibition without proof of special damage.  I
refer in this regard
to
Patz
v Greene and Co
[16]
cited with approval in
Roodepoort-Maraisburg
Town Council v Eastern Properties (Pty) Ltd.
[17]
Even where the nuisance or harm caused to an applicant is minimal,
the innocent applicant will be entitled to relief in the
form of an
interdict.
[26]
In
Independent Outdoor
Media (Pty) Ltd v City of Cape Town
[18]
the court stated:
“
In my view, there
is no reason why an interdict should not be granted to stop unlawful
signs being displayed in breach of the Bylaw,
and while a criminal
prosecution may well follow upon an offender making itself guilty of
unlawful conduct, it would be a sad day
if the criminal courts were
to be clogged by a vast number of cases of such a nature.  The
court a
quo
was quite
correct to have granted the interdict that it did.”
[27]
O’Regan J held as follows in
Walele
v City of Cape Town and Others:
[19]
“
The result of a
zoning scheme is thus to restrict the rights of all owners in an
area.  Yet zoning schemes also confer rights
on owners, because
owners are entitled to enquire that neighbouring owners comply with
the applicable zoning scheme.  Where
an owner seeks to depart
from the scheme, the rights of neighbouring owners are affected and
they are entitled to be heard on the
departure.”
[28]
Mr Rautenbach has conceded that the Environmental Authorisation does
not require signs
indicating the prohibition of trucks from entering
the premises of the filling station from Voortrekker Street.
However, based
on the first respondent’s transgression of this
condition, the applicants had no other option than to apply for
relief in order
to obtain a practical enforcement of the approved
condition.
[29]
It is also conceded by Mr Rautenbach that a court order must be
framed unambiguously
and be of practical effect and enforceable.
[20]
However, he failed to present the court with a draft order and
merely placed the ball in the Court’s court in order for the
court
to graft an enforceable and practical order. I decided to consider
the request in fairness to both parties and shall soon deal
with this
aspect.  I shall bear in mind that “
court
orders are intended to provide effective relief and must be capable
of achieving their intended purpose….”
[21]
[30]
Mr Reinders on behalf of the first respondent pointed out
emphatically that the first
respondent made it clear in its answering
affidavit filed as long ago as 11 June 2021 that the Environmental
Authorization does not
contain a condition that first respondent
should erect and keep display signs or road signs as suggested.
[22]
As correctly pointed out, the applicants unequivocally conceded this
in their replying papers.
[23]
[31]
Mr Reinders submitted that in the light of this concession that
should have been the
end of the matter.  However, the applicants
failed to withdraw the application and now suggest that “
the
Court may decide to issue the relief in prayer 1 of the notice of
motion in the form of a direct
mandamus
,
which is alternative relief to which the applicants will be entitled
to.”
[32]
I agree with Mr Reinders that the mere fact that the applicants
request the court to
prepare a suitable order in order to assist them
boils down to what first respondent originally complained of, namely
the relief
sought is so vague and uncertain that it should be
dismissed for that reason as well.  However, the point raised by
Mr Reinders,
to wit that the recommendations and mitigation measures
set out in the Environmental Authorisation cannot be described as
conditions,
appears to be without any merit.  The Environment
Authorisation must be interpreted by considering the full document,
including
the Basic Assessment Report which forms part and parcel
thereof.  Interpretation of the document must comply with the
guidelines
enunciated in several judgments of the Supreme Court of
Appeal and the Constitutional Court.
[24]
An expansive approach to interpretation has been laid down in
Endumeni
,
the effect being that the words of the document must be read in
context whilst the purpose and background information play an equally
important role.  As mentioned by the Constitutional Court in
University of
Johannesburg
a unitary
exercise should be adopted and interpretation should be approached
holistically.  Therefore, a court interpreting
a contract (in
submission also legislation or statutory authority as in this case)
must consider the factual matrix in which the
document came into
existence, its purpose, the circumstances leading up to its
conclusion, and the knowledge at the time of those
who negotiated and
produced the document.
[25]
[33]
Mr Reinders submitted that this court should not act in a consulting
or advisory capacity
and to issue an order making use of its own
initiatives in a situation where the applicants do not even suggest
how the order should
read.  I have considered the matter
thoroughly and am convinced that the order to be granted will be fair
to the parties and
in line with what the applicants had in mind.
There can be no prejudice to the first respondent.  In fact,
insofar as
Mr Rautenbach has conceded that tankers may still be
allowed to use the Voortrekker Street entrance, the first respondent
is in a
much better position as suggested by its own environmental
experts and which forms part and parcel of the Environmental
Authorisation.
The order to be granted will therefore strictly
speaking be in conflict with the Environmental Authorisation, but the
only entities
complaining about the issue at present are the two
applicants who have now conceded that the court may grant an order in
such terms.
It is not for the court to advise litigants, but
the first respondent will be well advised to ask for a suitable
amendment of the
Environmental Authorisation.
VII
CONCLUSION
[34]
I conclude that the applicants should have more carefully considered
the relief sought against
the first respondent.  More
importantly, when they realised their predicament as pointed out in
the first respondent’s answering
affidavit, they should have
considered either withdrawing the application against the first
respondent, or amending the relief claimed
to prevent any vagueness
or uncertainty.  Having said this, it is clear that the first
respondent conceded transgression of
the condition imposed in the
Environmental Authorisation as a consequence of the report of its own
environmental specialist, Batho
Earth in the final Basic Assessment
Report.  In the exercise of my discretion I have decided to
penalise the applicants by not
granting them all the costs of the
application.
VIII
ORDERS
[35]     1.
By agreement between the applicants and the
second respondent the
following orders are issued:
1.1
The second respondent shall monitor
the compliance by the first
respondent with the Environmental Authorisation no.
EMB/51/18/52.
1.2
Each party to pay its own costs.
2.
The following further orders are made:
2.1
The First Respondent shall comply with the approval conditions of
Environmental
Authorisation no:  EMB/51/18/52 by attaching a
notice board to the Voortrekker Street exit gate on Erf 599, Petrus
Steyn within
21 days from date of this order, which contains a
legible notice in capital letters in the English, Afrikaans and
Sesotho languages,
the notice to read in English as follows:
NO
ENTRANCE. PLEASE USE ENTRANCE AROUND THE CORNER IN DU PLESSIS STREET
,
and to take all reasonable measures to prevent vehicles, excluding
tankers that deliver fuel and diesel to the premises, from entering
the filling station from Voortrekker Street, Petrus Steyn.
2.2
The first respondent shall pay 50% of the applicants’ costs of the
application.
JP
DAFFUE J
On behalf of
applicants:
Adv JS Rautenbach
Instructed
by:
Hill, McHardy & Herbst Inc
BLOEMFONTEIN
On behalf of 1
st
respondent:          Adv
SJ Reinders
Phatshoane Henney
BLOEMFONTEIN
On behalf of 2
nd
respondent:         Adv T
Ngubeni
State Attorney
BLOEMFONTEIN
[1]
Act
107
of 1998
[2]
Founding
affidavit para 38 pp 20 & 21
[3]
Founding
affidavit para 42 pp 22 & 23
[4]
Founding affidavit p
ara
46 pp 23 - 25
[5]
Founding
affidavit paras 61 & 62 pp 28 & 29
[6]
Founding
affidavit para 76 pp 32 & 33 & the Basic Assessment Report
on p 54, read with para 1.17 of the Environmental Assessment,
p 78
[7]
Founding
affidavit para 79 p 33
[8]
Founding
affidavit paras 80 – 95 pp 33 - 38
[9]
Answering
affidavit para 4 p 149
[10]
Opposing
affidavit para 37 p 161
[11]
Opposing
affidavit para 7.3 p 153
[12]
Opposing
affidavit para 7.4 p 154
[13]
2015
(6) SA 283 (SCA)
[14]
1965
(1) SA 683
(T) at 685 A
[15]
At p
ara
23
[16]
1907
TS 427
[17]
1933
AD 87
at 96; see also
Laskey
v Showzone CC
2007 (2) SA 48
(C) at para 17
[18]
[2013]
2 All SA 679
(SCA) at para 36
[19]
[2008] ZACC 11
;
2008
(6) SA 129
(CC) at para 130
[20]
Carter v Hayworth
2009
(5) SA 446
(SCA) at para 12
[21]
SOS Support Public
Broadcasting Coalition and Others v South African Broadcasting
Corporation (Soc) Ltd and Others
2019
(1) SA 370
(CC) at para 52
[22]
Answering
affidavit para 4.3 p 150
[23]
Replying
affidavit para 41 p 228
[24]
Capitec Bank Holdings & another v Coral Lagoon Investments &
others
2022 (1) SA 100
(SCA) at para 38 and further; KPMG Chartered
Accountants v Securefin Ltd
2009 (4) SA 399
(SCA); and University of
Johannesburg v Auckland Park Theological Seminary & Another 2021
(6) SA 1 (CC)
[25]
University of Johannesburg at paras 65 & 66