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 178
|
|
Highway Junction (PTY) Ltd and Others v DI-Thabeng Truck and Taxi (PTY) Ltd (5821/2021) [2022] ZAFSHC 178 (27 July 2022)
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: 5821/2021
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In
the matter between:
HIGHWAY
JUNCTION (PTY) LTD
First Applicant
SWINBURNE
VILLAGE HOME OWNERS
ASSOCIATION
NPC
Second Applicant
SWINBURNE
STORE CC
Third
Applicant
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 ECONOMIC, SMALL
BUSINESS
DEVELOPMENT, TOURISM AND
ENVIRONMENTAL
AFFAIRS
Sixth Respondent
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
Seventh Respondent
THE
MINISTER OF WATER
AND
SANITATION
Eighth
Respondent
THE
MINISTER OF MINERAL RESOURCES
AND
ENERGY
Ninth Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
Tenth Respondent
CORAM:
ZIETSMAN P, AJ
HEARD
ON
:
21 JULY 2022
DELIVERED
ON:
27 JULY 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 10h00 on 27 July 2022
[1]
This is an application whereby the Applicants apply for a final
interdict against the First to
Fifth Respondents (hereinafter
referred to as “
the Di-Thabeng Group”
), whereby
the First to Fifth Respondents are to be interdicted and/or
restrained from any further construction at the property
concerned,
Portion 5 of the Farm Franshoek No. 1861, Swinburne, Free State
Province until:
1.1
the necessary environmental approvals have
been obtained under the
National Environmental Management Act, 107 of
1998
;
1.2
a water use license has been obtained under
the
National Water Act, 36 of 1998
;
1.3
land-use approval has been obtained under
the Municipal Planning By-law of 2015; and
1.4
a building plan approval has been obtained
under the National Building Regulations and Building Standards Act,
103 of 1997.
[2]
Furthermore the Applicants also apply for an interdict against the
Di-Thabeng Group restraining
them from using the property referred to
above for any uses other than that of agricultural until:
2.1 the
necessary environmental approvals have been obtained under the
National Environmental Management Act, 107 of 1998
;
2.2 the
use of the land had been changed in terms of the provisions of the
Spatial Planning Land Use Management
Act, 16 of 2013 and/or the
Municipal Planning By-law of 2015; and
2.3 the
land use accords with the approved building plans on the property.
[3]
The further legal relief sought by the Applicants against the
Di-Thabeng Group is an interdict
from fuel retailing until a site and
retail license have been obtained under the
Petroleum Products Act,
120 of 1977
, that the Di-Thabeng Group be ordered to desist from
breaching their duty of care as envisaged by
Section 28
of NEMA and
Section 19
of NWA and lastly that the Di-Thabeng Group should pay the
Applicants’ costs, jointly and severally, the one to pay the
other
to be absolved.
[4]
It is to be noted that various other parties have also been joined in
the application, being the
MEC, Free State Provincial Department of
Economic, Small Business Development, Tourism and Environmental
Affairs, the Maluti-A-Phofung
Local Municipality, the Minister of
Water and Sanitation, the Minister of Mineral Resources and Energy
and the Controller of Petroleum
Products. None of these further
Respondents opposed the application, and in fact the Sixth, Eighth
and Ninth Respondents, being
the MEC, Free State Provincial
Department of Economic, Small Business Development, Tourism and
Environmental Affairs, the Minister
of Water and Sanitation and the
Minister of Mineral Resources and Energy filed a notice to abide the
decision of the Court.
[5]
It is firstly to be noted that this application was issued by the
Applicants on
14 December 2021
and various of the complaints
that the Applicants initially had became historic and can be regarded
as past transgressions.
[6]
Before arguments were raised by the respective parties before me, I
pointed out to them that in
my practice as an advocate at the Free
State Bar I did give advice to the Di-Thabeng Group at a stage in the
past, however on an
unrelated matter, and requested the parties to
indicate whether they have any objection against me sitting as the
Judge in this
matter. Both parties, Mr
Rip SC
and Mr
De
Waal SC
indicated that they do not have any objection.
[7]
Furthermore, the following issues were raised before arguments were
advanced:
7.1 At
a stage a notice of amendment in terms of
Rule 28
was filed by the
Applicants of their Notice of Motion, however was withdrawn when
objected to;
7.2 The
Di-Thabeng Group moved for the striking of certain paragraphs of the
founding affidavit, however did not
raise the striking issue during
argument that followed. I am therefore not of the intention to strike
any of the averments in the
founding affidavit;
7.3 I
also indicated to the parties that I have in the court file, it seems
to be original, building plans which
was apparently submitted to the
Maluti-A-Phofung Municipality for approval. The parties indicated
that approval has not taken place
yet;
7.4 The
Applicants furthermore handed up a Draft Order before any arguments
were advanced, which they furnished
to the Respondents the morning of
the hearing. Applicants indicated that they will argue, on the basis
that the Draft Order should
rather be granted which they will deal
with during argument which only entails a change in the wording and
the paraphrasing of
the Notice of Motion. The Di-Thabeng Group
through Mr
Rip SC
objected to the basis of such a Draft Order
as, according to him, various changes as to the original Notice of
Motion have been
effected to which they object. I therefore decided
to let the parties argue the matter and then adjudicate the matter
upon the
original Notice of Motion as it was filed by the Applicants.
[8]
Mr
De Waal SC
and Mr
Rautenbach
on behalf of the
Applicants, at the start of the proceedings indicated that there are
only four main issues which needs adjudication
and upon which they
will move for an interdict against the Di-Thabeng Group, being:
8.1 The
zoning of the property concerned;
8.2 The
unlawful retailing of petroleum products;
8.3
Environmental transgressions;
8.4 The
unlawful construction of buildings without the necessary approved
building plans.
[9]
For purposes of this judgment, I will also refer to as the parties
did, to the following abbreviations
and acronyms:
9.1
“
the By-law”
: the Maluti-A-Phofung Municipal Planning By-law of 2015.
9.2 the
“
NBRBS Act”
: National Building
Regulations and Building Standards Act 103 of 1977.
9.3
“
NBR”
: refers to the National
Building Regulations promulgated under the NBRBS Act.
9.4
“
NEMA”
:
National
Environmental Management Act, 107 of 1998
.
9.5
“
PPA”
: the
Petroleum
Products Act, 120 of 1977
.
9.6
“
SPLUMA”
: Spatial Planning and
Land Use Management Act, 16 of 2003.
9.7
“
the Scheme”
: the Harrismith,
Tshiame and Intabazwe Town-Planning Scheme, 51969.
[10]
According to Mr
De Waal SC
on behalf of the Applicants with
reference to the aforementioned four groups of transgressions, the
first two, being the zoning
of the property and/or the use of the
property contrary to the scheme and SPLUMA as well as the retail of
fuel contrary to the
fact that no retail license in terms of PPA has
been obtained, constitutes continuing transgressions for which the
Applicants have
made out a case according to Mr
De Waal SC
for
the interdict required against the Di-Thabeng Group as far as the
continuing transgressions in this regard are concerned. He
also moved
for an interdict for past transgressions, being the environmental
transgressions and the failing to have approved building
plans.
[11]
The basis of the interdict required regarding the past
transgressions, it was argued, is that the Di-Thabeng
Group will on
the probabilities again in future conduct in irregularities and
transgressions. Therefore, and an interdict is still
a requisite to
prohibit the Di-Thabeng Group from engaging in environmental
transgressions and/or continuing with building on the
site without
the necessary approved building plans. According to the Di-Thabeng
Group of Respondents there is no such evidence
that as far as the
aforesaid averred past transgressions are concerned, indeed
constituted transgressions, but even if the Di-Thabeng
Group
committed such past transgressions, there is not evidence that it
will be committed again or will be continued transgressions
by the
Di-Thabeng Group.
[12] I
am in agreement with the First to Fifth Respondents regarding the
aforesaid past transgressions, on the
basis that there is a clear
factual dispute as to whether certain environmental transgressions
have been committed, and is there
no evidence that even if it had
been committed, the Di-Thabeng Group will in future again commit such
transgressions relating to
the environmental activities. As far as
the building plans are concerned, it is common cause that the
Di-Thabeng Group indeed started
the building project on the property
concerned without the necessary approved building plans from the
Municipality. It is also
however common cause that the Di-Thabeng
Group stopped building and/or stopped the continuance of the
development pending the approval
by the Municipality of “
as
built”
plans which was submitted to the Municipality for
approval. There is in my view also no evidence that the Di-Thabeng
Group will
continue building despite not having the necessary
authorisation from the Municipality’s side. On the aforesaid
basis, I
am not going to deal further with the environmental
transgressions and/or the transgressions regarding the failure to
have the
necessary building plans approved in the circumstances.
[13] As
far as the continuing transgressions are concerned as averred by the
Applicants, I will deal with the
zoning of the site concerned herein
later and will start off by the argument relating to the retail of
fuel without a license by
the Di-Thabeng Group.
[14]
14.1 The Di-Thabeng
Group averred, and it was accepted as such by the Applicants, that it
indeed obtained a wholesale license
certificate issued in the name of
Di-Thabeng Fuel Supply (Pty) Ltd on
9 March 2020
by the
Controller of Petroleum Products in terms of the PPA.
14.2 According to
the Applicants in a reading or interpretation of the PPA, a licensed
wholesaler may only sell as minimum
of 1500 litres of petroleum
products per transaction and no lesser amount. If, according to the
Applicants, a lesser amount is
sold a retail license is required for
a specific premises where such fuel is sold. Accordingly, the
Applicants aver that a licensed
wholesaler would therefore not be
allowed to sell quantities of petroleum products in a quantity which
is less than 1500 litres
per transaction, whilst a licensed retailer
may indeed legally sell such lesser amount of petroleum products to
an end-consumer.
14.3 According to
the Di-Thabeng Group the interpretation as referred to above is that
a wholesaler may indeed only sell a
minimum of 1500 litres per
transaction, and that is precisely what the Di-Thabeng Group did.
They indeed informed their clients
that they are a wholesale licensee
and that a client may only transact with the group in transaction
intervals of 1500 litres each
paying in advance. Then thereafter
their client can collect whichever amount of diesel or petroleum
products it needs in the process.
In other words, the Di-Thabeng
Group issued an invoice to the client for at least 1500 litres of
petroleum products in advance,
payment by their clients for the total
of such at least 1500 litres of petroleum products take place and
thereafter the client
collects the petroleum products as needed,
which might entail for instance 200 litres of petroleum products per
day or 400 litres
of petroleum products per day, up until the 1500
litres. This, according to the Di-Thabeng Group, does not fall under
the requirement
of a retail license, in and because of the fact that
they still only sell in bulk transactions, for 1500 litres upwards
per transaction.
14.4 The question
here is what does a transaction means. In my view a transaction can
be interpreted to mean one transaction
whereby an invoice is issued
for the buying of at least 1500 litres of petroleum products to a
specific client and payment by that
client takes place for such 1500
litres of petroleum products or more on that invoice. The fact that
delivery of the products in
lesser amounts than 1500 litres of
petroleum products, as needed by the client does in my view not mean
that the wholesale license
is not complied with or transgressed,
however at least a
bona fide
dispute exists as to the
interpretation of one transaction I cannot therefore find that the
basis upon which the Di-Thabeng Group
transact with their clients is
employed to circumvent the legislation in that it was the intent with
such a license to prevent
less than 1500 litres petroleum products
per transaction, i.e. delivery of 1500 litres or less at a time.
[15] I
am therefore of the view that the Applicants should not be successful
in obtaining an interdict in relation
to the way in which the
Di-Thabeng Group utilizes their wholesale license certificate, which,
according to the parties may be utilized
from any premises in the
Republic of South Africa. I am therefore not convinced that the
Applicants have shown that it has a clear
right to obtain an
interdict against the Di-Thabeng Group as far as the selling of
petroleum products are concerned.
[16]
The only continuing transgression left, according to the Applicants,
is that the Di-Thabeng Group is continuing
to utilize the premises
being Portion 5 of the Farm Franshoek No. 1861, Swinburne, Free State
Province from where several operations
of the Di-Thabeng Group are
being conducted contrary to the zoning of the property concerned. In
this regard, the following are
of importance:
16.1 On
2
November 2020
a zoning certificate was issued to the owner of
Portion 5 of the Farm Franshoek No. 1861, Harrismith by the Chief
Town Planner:
SPLUM, Human Settlements and Traditional Affairs that
the current zoning of Portion 5 of the Farm Franshoek No. 1861,
district
Harrismith is as follows:
“
Zoning:
Agriculture
Permitted uses:
Agricultural use
Building restrictions:
None.
Additional rights as
per the title deed: Parking of trucks.”
16.2 Although there
are various conditions taken up in the title deed the important part
of the title deed is taken up in
paragraph 3(a) and (b) thereof,
which reads as follows:
“
3.
Onderhewig aan die volgende
voorwaardes ten gunste van Petrus Lafras de Jager, Identiteitsnommer
[....], getroud buite gemeenskap
van goedere, sy erfgename,
eksekuteurs, administrateurs of regsverkrygendes, soos uiteengesit in
Sertifikaat van Verenigde Titel
T [....]:
(a)
‘
The transferee undertakes not
to use the property hereby sold or allow it to be used in any manner
which would conflict with the
terms and conditions of the Notarial
Lease No. [....] or of Notarial Deed of Servitude No. [....] or allow
any activities on the
property hereby sold to conflict in any way
where the amenities presently enjoyed by the lessee of the property
to be used in a
manner that would detract from the viability,
aesthetics or amenities enjoyed by the said service station and
restaurant;
(b)
The property hereby sold may be used
as a parking area where the trucks may stop whether overnight or
otherwise, and for no other
purpose without the prior written consent
of the transferor, or his successors in title, which consent may not
be unreasonably
withheld. The property shall, however, not be used
for any purpose that may conflict with the service station and
restaurant on
the joining property as envisaged under any law’.”
16.3 According to
the Applicants, the property concerned is therefore zoned for
agricultural purposes as well as the parking
of trucks. According to
the Applicants the Respondents (the Di-Thabeng Group) are therefore
not allowed to utilise the premises
other than for the aforesaid
purposes and that before the Di-Thabeng Group may utilise the
property for other purposes, it must
either rezone the property or
obtain an extension of the activities conducted through the necessary
authorities being the Maluti-A-Phofung
Local Municipality and more
specifically SPLUMA.
16.4 According to
the Di-Thabeng Group (First to Fifth Respondents), the zoning
certificate they have indeed includes all
the conditions as set out
in the title deed, which includes the parking of trucks. According to
the Di-Thabeng Group the answer
lies in the Town Planning Scheme, No.
51969 of the Harrismith, Tshiame and Intabazwe Town Planning Scheme
which was issued in terms
of the By-laws published in Provincial
Gazette of
6 November 2015
which indeed contains various
definitions as to the arrangement of the scheme. The definitions are
taken up in paragraph 2 of the
Town Planning Scheme and nowhere
refers to a definition for the parking of trucks. It only refers to a
definition for “
truck stop”
. In the definition of
“
truck stop”
it was determined that such a
facility includes “
the parking of trucks and busses”
.
16.5 The Di-Thabeng
Group therefore argues that whereas the Town Planning Scheme referred
to above only refers to the parking
of trucks (which they are allowed
to do according to the zoning certificate) can only be entertained
under the definition of “
truck stop”
. Therefore,
the zoning certificate must be read with the definition of “
truck
stop”
.
[17]
The aforesaid argument however might be problematic insofar as the
definition of a “
truck stop”
in the Town Planning
Scheme is as follows:
“’
truck
stop’ means a facility where the use of land includes to the
following:
(a)
parking of trucks and busses;
(b)
ablution facilities, rest areas for
truck and bus drivers and storage facilities;
(c)
service station and fast food / shop
facilities;
(d)
office and/or administration
facilities;
(e)
caretaker and security housing;
(f)
overnight facilities for bus and
truck drivers;
and any use considered
by the Council to be ancillary to the uses referred to in (a), (b),
(c), (d), (e), (f) above or likely to
encourage the use of the land
for a truck stop.”
[18] In
this regard the Respondents (the Di-Thabeng Group) relies upon the
expert evidence of a certain Mr Peter
John Dacomb who is a
professional town and regional planner, in whose opinion the
Di-Thabeng Group are within the zoning scheme
if the zoning scheme
makes provision for the parking of trucks insofar as the only
provision therefor in the zoning scheme is that
under the definition
of a truck stop.
[19]
The Applicants’ view on this is that an expert witness in this
regard cannot interpret the By-laws
and/or Regulations. That is an
interpretation that the Court should make. The Di-Thabeng Group’s
counsel, Adv
Rip SC
agrees therewith, although argues that the
expert witness is only there to assist the Court in coming to an
interpretation.
[20] If
I go back to the zoning certificate read with the title deed, it is
clear that the property concerned
is zoned for agriculture and
agricultural activities, with an extension according to the title
deed of the parking of trucks. It
does not seem that the title deed
makes any further specific extensions other than the parking of
trucks. The restaurant and filling
station referred to in the title
deed are indeed a restaurant and filling station on an adjacent
property. Although there is a
confirmatory document by a Ms Christine
De Jager (apparently from the adjacent property) to give consent to
the Di-Thabeng Group
to do the business that they are presently
doing, including that of a Truckstop, the Applicants pointed out that
such consent form
is not in the form of an affidavit, is therefore
hearsay evidence and not to be allowed. It is furthermore clear that
Ms De Jager
is not at liberty to give consent contrary to the
specific zoning of the property. She has no authority to do so. Be
that as it
may, it is in my view not possible for such an owner of an
adjacent property to consent to the extension of the zoning of the
property
concerned insofar as the extension of the zoning in my view
does not go further than the parking of trucks.
[21] To
say that “
the parking of trucks”
is a category
which is not provided for in the Town Planning Scheme of the
Maluti-A-Phofung Municipality and therefore the fact
that it falls
under a “
truck stop”
means that the Respondents
can conduct business on the zoned property as if the zoning is one of
a truck stop, is in my view too
far stretched in the circumstances.
Where the extension made provision for the parking of trucks, it
certainly did not make provision
for ablution facilities, rest areas,
service station, fast food / shop facilities, office and/or
administration facilities, or
even overnight facilities for bus and
truck drivers.
[22]
The only extension, if it falls under the definition of “
truck
stop”
, can be that taken up in paragraph (a) of the
definition of “
truck stop”
.
[23]
In my view therefore the present zoning of the property being
“
Gedeelte 5 van die plaas
Franshoek 1861, distrik Harrismith, Provinsie Vrystaat”
does not make provision for anything else than
paragraph (a) under the definition of “
truck
stop”
and if the Di-Thabeng Group
(the First to Fifth Respondents) need or needed an extension as to
the zoning to make provision for
their present activities, they
should do so through the normal channels by way of an application for
the rezoning of the property,
alternatively
an extension of the present zoning to entertain or counter for
further facilities or business activities under the definition of
“
truck stop”
.
[24] On
the aforesaid basis I am of the view that, as the Notice of Motion
presently stands, the Applicants are
entitled to an interdict against
the First to Fifth Respondents only as far as paragraph 2, read with
paragraph 2.2, is concerned.
[25] As
far as the costs of the application is concerned, the Applicants are
partially successful which will usually
mean that the Respondents are
to be ordered to pay the costs of the Applicants. In my discretion
however, it seems to me that the
Applicants were throwing the
proverbial book at the Di-Thabeng Group in the hope that one of the
chapters will hit. The aforesaid
approach can sometimes be compared
and is known as a shotgun approach. Therefore, I exercise my
discretion on the basis that each
party shall be liable for its own
costs in the matter.
I
THEREFORE MAKE THE FOLLOWING ORDER
:
1.
The First to Fifth Respondents 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 had 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 to pay its own costs.
P
ZIETSMAN, AJ
On
behalf of the Applicants:
Adv HJ De
Waal SC
Adv
JS Rautenbach
Instructed
by:
Phatshoane Henney Inc.
35
Markgraaff Street
Bloemfontein
E-mail:
law@phinc.co.za
On
behalf of the Respondents:
Adv MM Rip SC
Adv L
Kotze
Instructed
by:
Graham Attorneys
14A
Torbet Street
Noordhoek
Bloemfontein
E-mail:
vanessa@grahamattorneys.co.za