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[2022] ZAMPMBHC 61
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NAD Property Income Fund (Pty) Ltd and Another v Tivane and Others (2692/2022) [2022] ZAMPMBHC 61 (25 July 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 2692/2022
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:YES
REVISED: YES
In the matter between:
NAD
PROPERTY INCOME FUND (PTY) LTD
First
Applicant
ERF 6 HIGHVELD
TECHNOPARK
INVESTMENTS
(PTY) LTD
Second
Applicant
and
NELSON
WISANE TIVANE
First
Respondent
ELEGANT
FUEL (PTY) LTD
Second
Respondent
BUSHBUCKRIDGE
LOCAL MUNICIPALITY
Third
Respondent
MPUMALANGA PROVINCIAL
GOVERNMENT
DEPARTMENT OF
AGRICULTURE, RURAL
DEVELOPMENT,
LAND AND ENVIRONMENTAL AFFAIRS
Fourth Respondent
MINISTER OF ENERGY FOR
THE REPUBLIC
OF
SOUTH
AFRICA
Fifth
Respondent
CONTROLLER OF
PETROLEUM PRODUCTS
IN
THE NATIONAL DEPARTMENT OF ENERGY
Sixth Respondent
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
This application has been brought in two parts, A and B. The
Applicants seek relief
that pending finalisation of Part B of the
notice of motion, the First and Second Respondents (“the
Respondents”),
on urgent basis, be prohibited
from
proceeding with construction of a petrol filling station and
ancillary activities on property described as Stand No: 295, Tsakane,
Acornhoek, Bushbuckridge Local Municipality (“the
subject
property”)
and conducting
business of a petrol filling station and all subsidiary endeavors on
the subject property. Additionally, that costs
of Part A be borne by
the Respondents, jointly and severally, the one paying the other to
be absolved.
[2]
In terms of the notice of motion, the Respondents were directed to
deliver their opposing
affidavit at 12 noon on or before 6 July 2022.
Although it is trite that the time lines laid down in the notice of
motion are not
to be ignored without any justifiable reasons, the
Respondents failed to adhere to them. They joined the virtual
proceedings 20
minutes late. Other than advising them that the court
took a grim view of their acts, no negative consequence flowed
therefrom
and the matter continued notwithstanding the delay.
[3]
I feel constrained to mention that the Applicants’ notice of
motion was supported
by a 45-paged founding affidavit. The case
against the Respondents has manifest grave business repercussions
against them yet and
uncharacteristically in such circumstances, the
Respondents responded with a six-page document docketed, answering
affidavit. Woefully,
the answering affidavit is conspicuously
insufficient to address all the allegations made in the founding
affidavit. In short and
in view of the many averments which went
unchallenged, it is fitting to say that in large part, the matter is
unopposed.
FACTUAL MATRIX
[4]
The First Applicant owns Erf 930 Greenvalley Ext 1 Township,
Acornhoek, Bushbuckridge,
Mpumalanga for which it holds a site
license issued in terms of the Petroleum Products Act (“PPA”).
The Second Applicant
conducts a Puma fuel filling station business on
the First Applicant’s property in terms of a retail licence
issued in terms
of the PPA. The First Respondent is the beneficial
owner and ostensibly the holder of a permission to occupy (“a
PTO”)
stand 295 Tsakane, Acornhoek, Bushbuckridge, Mpumalanga.
The Applicants allege that the Respondents are in the process of
unlawfully
constructing a petrol filling station on the subject
property.
[5]
The Third to Sixth Respondents are organs of state with direct and
substantial interest
in the application especially Part B whose
objective is to review and set aside the administrative actions taken
by such organs
of state in terms of:
5.1
The National Environmental Management Act, 107 of 1998 (“NEMA”);
5.2
The PPA;
5.3
The National Building Regulations and Building Standards Act, 103 of
1977 (“the Building
Standards Act”); and
5.4
The Spatial Planning and Land Use Management Act, 16 of 2013
(“SPLUMA”).
[6]
The Applicants allege that they became aware that the Respondents
were in the process
of constructing a fuel filling station on the
subject property during the last week of May 2022. The Applicants
further mention
that while they may have been aware of the
construction prior to the period referred to aforesaid, they were
oblivious of the nature
and purpose of the structure. It was not
until they noticed the construction of a canopy and ground works to
establish the forecourt
that it dawned to them that a competitive
fuel filling station was in the process of being built on the subject
property, which
is situated approximately 2.4 Kilometres South of the
Applicants’ property.
[7]
It is alleged further that there were no notices displayed at the
subject property
to notify any member of the public, including the
Applicants, that a fuel filling station was in the process of being
developed.
As such, there has been a complete failure of crucial
public participation prescribed in each and every of the aforesaid
statutory
instruments. The failure also extends to the non-observance
of Section 33 of the Constitution of the Republic of South Africa and
Section 3 of the Promotion of Administrative Justice Act, 3 of 2000
(“PAJA”).
[8]
When it emerged that it was a fuel filling station that was being
constructed, the
Applicants caused investigations to be conducted at
the offices of the Third Respondent (“the Municipality”).
These
investigations uncovered that:
8.1
A “
consent use permit for a filling station”
was
issued subject to a site development plan being submitted within
twelve months, i.e. before the 20
th
of June 2018, failing
which the approval would lapsed;
8.2
An environmental authorisation had to be procured;
8.3
Consent had to be obtained from the South African National Roads
Agency Limited (“SANRAL”)
for access to the subject
property; and
8.4
A business license had to be applied for.
[9]
The Applicants claim that their investigations have exposed that none
of the aforegoing
conditions were satisfied. As such and insofar as
land use is concerned, the Respondents do not have the necessary
authorisation
to conduct their current activities on the subject
property. As though that was not enough, the unlawful nature of the
activities
of the Respondents are compromised by the fact that they
have commenced with construction activities in the absence of an
approved
site development plan and building plans required in terms
of Section 4(1) of the Building Standards Act.
[10]
The Applicants also allege that the subject property is still zoned
“
Agricultural”
and any consent that was seemingly
obtained is irregular in terms of the applicable town planning
scheme. To this end, the
Applicants have annexed to the
founding affidavit Extracts of the Town Planning Scheme to the
Founding Affidavit. On 10 June 2022
and following becoming aware of
the unlawful nature of the construction on the subject property and
investigations as aforesaid,
the Applicants caused a letter of demand
to be sent to the Respondents. An undertaking to cease all illegal
activities on the subject
property within 48 hours was demanded.
[11]
The Applicants also made telephonic contact with the project manager
of the Second Respondent
to persuade them not to proceed with their
unlawful conduct on the subject property. Such telephonic
conversations failed to yield
any positive results. Meanwhile, the
alleged unlawful construction persisted. An expert engaged by the
Applicants, Mr Krause, confirmed
the detrimental impact the envisaged
fuel filling station of the Respondents will have on the fuel filling
station of the Applicants.
Against the above background, the
Applicants approached this Court on urgent grounds seeking relief as
set out at the beginning
of this judgment.
ISSUES
[12]
The issues that stand for determination are firstly, urgency and
simply whether or not the Applicants
are entitled to an order in
their favour in Part A pending the review and setting aside of the
administrative action of the decision-maker.
That determination
cannot be made independently of the consideration of the prospects of
success of Part B. Thus, the question
is, have the Applicants
demonstrated that they are entitled to an urgent interim interdictory
relief in the terms proposed by them
on urgent basis.
[13]
To succeed, the Applicants ought to establish that (I) they have a
prima facie
right, (ii) an injury has actually been committed
or that there is a reasonable apprehension of it occurring, (III) the
balance
of convenience favours them and that they lack adequate
alternative remedy. The Applicants will be eligible to a relief in
the
terms sought by them if they can satisfy that they have met all
the requirements described above. Since urgency is challenged, I
deem
it fit to address it first.
URGENCY
[14]
I understood the Respondents to argue that the Consent Use Permit for
a Filling Station pertaining
to the subject property was granted as
far back as 2017 and that the Applicants have failed to challenge the
granting thereof timeously.
In other words, it is now unconscionable
for the Applicants to raise this matter almost five years after the
approval of the licenses
or that by implication, the urgency, if any,
has been self-created. The said the thing about this argument is that
it is not contained
in the opposing papers and as such, constitutes
litigation by ambush, which this Court is not at liberty to
countenance.
[15]
The second basis that I could decipher from the answering affidavit
is that the application should
simply not be regarded as urgent as it
lacks merit and is ‘not backed by facts and law that warrant
the Court to consider
it on urgent basis.’ This statement by
the Respondents is itself not backed by any facts or law justifying a
dismissal of
the application. For that reason, it is proper to ignore
it.
[16]
The Applicants are said to have failed to show a
prima facie
right
that deserves protection. This argument is advanced in the face of it
being trite that any party aggrieved or adversely affected
by an
administrative action must be afforded opportunity to approach the
decision-maker to vent his concerns to influence any decision
that
may be made. The Applicants being owners of the property situated
approximately 2.4 Kilometres from the subject property on
which they
operate a lawful fuel filling station, have a right to protect.
[17]
Lastly, the Respondents stated that the Applicants’ founding
affidavit is silent on why
the Court should allow their truncated
time lines and be heard on urgent basis. Again, this argument is not
in the papers of the
Respondents but I mention it for the sake of
completeness lest the Court is set not to have taken what was said in
Court into consideration.
I cannot entertain an argument that is not
in the papers of the Respondents as it will amount to allowing
litigation by ambush.
[18]
Besides, the Applicants have fully explained why they are of the
opinion that this matter cannot
wait for address in due course. It is
not without significance that the Applicants attached a report of an
expert, Mr Krause, who
says that operation of the new filling station
will have devastating consequences on the Applicants’ existing
business of
a fuel filling station. Sadly, and importantly, the
report of Mr Krause has not been contested at all. After a
consideration of
the above, I ruled that the matter was sufficiently
urgent warranting immediate attention of this Court.
LEGAL FRAMEWORK AND
ANALYSIS
[19]
Insofar as the
prima
facie
right is concerned, the degree
of proof required to establish it has been formulated as follows:
19.1
The rights can be
prima
facie
established
even if it is open to some doubt;
19.2
Mere acceptance of the applicant’s allegations is insufficient
but weighing up the probabilities of
conflicting versions is not
required;
19.3
The proper approach is to consider the facts as set out by the
Applicant together with any facts set out
by the Respondent which the
Applicant cannot dispute and to decide whether, with regard to the
inherent probabilities and the ultimate
onus, the Applicant should on
those facts obtain final relief at the trial;
19.4
The facts set up in contradiction by the Respondent should then be
considered and if they throw serious doubt
on the Applicant’s
case he cannot succeed. See,
Webster
v Mitchell
[1]
;
and
Gool
v Minister of Justice
[2]
.
[20]
A Court has a discretion whether or not to grant a temporary
interdict. Thus, in
Messina
(Transvaal) Development Co Lid v South African Railways and Harbours
[3]
Curlewis JA said:
“
In
an application for an interim interdict pending action, the Court has
a large
discretion
in granting or withholding an interdict.
Where there is merely a possibility, not
a practical certainty, of interference or injury, as in the present
case
,
the
Court will be reluctant to grant an interdict, especially if the
party seeking the interdict will have other means of redress
and will
not suffer irreparable damage.
And
the
Court
is entitled to and must regard the possible consequences, both to the
applicant
and to the respondent, which will ensue if an interdict be granted or
withheld.”
[21]
It is settled that any party that stands to be
materially and adversely affected by an administrative action should
be afforded
opportunity to make representations to the decision-maker
and be given time to state its concerns, if any, to influence any
decision
that may ensue. It is unquestionable that the First
Applicant, as the owner of the subject property and site license
holder and
the Second Applicant, as the owner of the fuel filling
station on the property, were not afforded the opportunity.
[22]
The PPA provides that owners of other fuel filling stations in the
vicinity of a property, as
parties likely to be materially and
adversely affected by the administrative action, such as the subject
property, must be notified
and given opportunity to express their
concerns to the decision-maker to influence the outcome. Their lack
of participation in
the process that led to the award of the site and
retail licenses to the First Respondent constitutes a direct
violation of their
right.
[23]
To the extent that it is apparent that firstly, the “
consent
use permit for a filling station”
has
lapsed due to lack of compliance with the condition that a site
development plan had to be submitted within 12 months being
on or
before 20 June 2018; secondly, an environmental authorisation was not
procured; thirdly, consent was not obtained from SANRAL
for access to
the subject property; and a business license was not applied for, the
process is tainted with illegality and the
rights of the Applicants,
as parties affected by the administrative action, necessarily
violated.
[24]
The above means that the construction work being executed at the
subject property by the Respondents
is unlawful and constitutes
criminal offences leaving no discretion to this Court but to direct
the activities to halt. See in
this regard, the case of
City
of Tshwane Metropolitan Municipality v Grobler
,
[4]
.
While the opposing affidavit purportedly seeks to raise the question
of lack of establishment of a
prima
facie
right, the Respondents have not elaborated how the Applicants have
fell short of showing this. In the result, I am satisfied that
the
Applicants have in fact gone beyond demonstration of a
prima
facie
right.
[24]
Turning to reasonable apprehension of harm.
This
entails a reasonable apprehension that the continuance of the alleged
wrong will cause irreparable harm to the Applicant.
See,
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
[5]
.
Irreparable
harm or loss is the loss of property (including incorporeal property
and money) in circumstances where its recovery
is impossible or
improbable. The loss need not necessarily be any financial loss, it
may consist of an irremediable breach of the
Applicant’s
rights. See,
Braham
v Wood
[6]
,
Cliff
v Electro
[7]
Nic
Media Network (Pty) Ltd and another.
[8]
[25]
Here the expert of the Applicants, Mr Krause, has prepared a report
outlining how devastating
the addition of competitor in the
environment will be on the fuel filling
[9]
station of the Applicants. The opposing affidavit takes no issue with
the report. As such, it stands as uncontested meaning of
course that
its contents are admitted as are. During argument in Court the
Respondents stated that they have invested a substantial
amount
[10]
to get the building where it is now. I understood this to mean that
on a grand scale they stand to lose far more than the Applicants.
In
the absence of a challenge to the report of Mr Krause, that argument
rings hollow.
[26]
Insofar as balance of convenience is concerned,
the
Court must weigh the prejudice to the Applicant if the interim
interdict is refused against the prejudice to the Respondents
if it
is granted. See,
Breedenkamp
v Standard Bank of South Africa
Ltd
and
Lieberthal
v Primedia Broadcasting (Pty) Ltd
[11]
.
The
enquiry is whether or not the Applicant can obtain adequate redress
in some other form of ordinary relief or an alternative
legal remedy.
See,
Camps
Bay Residents and Ratepayers Association v Augoustides
.
[27]
Usually this will resolve itself into a consideration of the
prospects of success in the main
action and
the balance of convenience. The stronger the prospects of success,
the less need for the balance
of convenience to favour the applicant.
The weaker the prospects of success, the greater the need for the
balance of convenience
to favour him. See, Breedenkamp
supra.
[28]
The Applicants submitted on balance of convenience that the question
of inconvenience does not
arise in circumstances where the
construction of the fuel filling station on the subject property is
illegal. This automatically
suggests that the prospects of success in
Part B are promising consequently the balance of convenience need not
be as overwhelming.
Even assuming that the inconvenience to be
suffered by the Respondents were the urgent relief to be granted was
pertinent, contended
the Applicants, such inconvenience would be
outweighed by the prejudice that the Applicants and numerous other
role players will
suffer if the Respondents were allowed to continue
with the unlawful activities pending the outcome of an application in
Part B
that is not on urgent basis.
[29]
It is highly probable that if the urgent interim relief is refused,
by the time Part B is concluded
the new unlawful fuel filling station
on the subject property will be fully operational. For these reasons,
the Applicants argued
that the balance of convenience favoured them.
Again and at least on the papers, these allegations were not
contested. As such,
the allegations of the Applicants ought to be
taken as they are.
[30]
Insofar as the absence of alternative adequate remedy is concerned,
the Applicants asserted that
there is no remedy that would yield
immediate results as can an urgent relief. The alternative to this
application would have been
to launch a normal application, as they
have done under Part B but without Part A. If they were to wait to
address the issues in
due course, the possibility that they might be
confronted with a fully functional unlawful fuel filling station at
the end is very
distinct. Additionally, it was clear that the Third
Respondent would not invoke its statutory powers to halt the illegal
activities
executed on the subject property by the Respondents. As a
result, there was no adequate alternative remedy to address the
situation.
[31]
Lastly, I turn to consider the prospects of success of Part B. Here I
need not dwell on the subject
for long. The Applicants have already
shown that the Consent Use Permit for a Filling Station was issued
subject to a Site Development
Plan being submitted within twelve
months being on or before 20 June 2018, failing which the approval
would lapse. The First Respondent
did not comply with this
requirement and the Consent Use Permit for a Filling Station has
therefore lapsed. Moreover, it was admitted
by the latter that the
environmental authorisation was not procured, the Consent for access
to the subject property was not obtained
from SANRAL and no business
license had been applied for. The erected structure or new filling
station is therefore illegal. Prospects
that Part B will succeed are
good.
[32]
Against that background, it is appropriate to grant an order in the
terms proposed by the Applicants,
which is as follows:
1.
Part A of the application is dealt with as
one of urgency and the Court condones the non-compliance of the rules
of this Honourable
Court in terms of Rule 6(12) of the Uniform Rules
of Court.
2.
The Respondents are interdicted, pending
the final resolution of Part B of the Notice of Motion, from
continuing with any further
construction and ancillary activities
aimed at the establishment of a petrol filling station on a property
known as Stand No. 295,
Tsakane, Acornhoek, Bushbuckridge Local
Municipality (“
subject property”
).
3.
The Respondents are interdicted, pending
the final resolution of Part B of the Notice of Motion, from
conducting the business of
a petrol filling station and all ancillary
or subsidiary activities on the subject property.
4.
The cost of Part A of this application
shall be paid by the Respondents, jointly and severally, the one
paying the other to be absolved.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be July 2022 at 10:00.
APPEARANCES:
Counsel for the
Applicants: Adv
JA Venter
Instructed
by: Ivan
Pauw & Partners
C/O
Caz Dry Attorneys
Counsel for the
Respondents:
Adv DJ Sibuyi
Instructed
by: Thobela
Sindy Attorneys
Date of Judgment:
25
July 2022
[1]
1948
1 SA 1186 (W)
[2]
1955(2)
SA 682 (C)
[3]
7929
AD 7 95 at 215 to 216
[4]
2005
(6) SA 61
[5]
1969(2)
SA 256 (C)
[6]
2005
(6) SA 61
[7]
1956
(1) SA 651
(D) at 655B
[8]
[2016]
2 All SA 102
(GJ) at Paragraph 27
[9]
2009(5) SA 304 (GSJ) at 314G
[10]
2009(6)
SA 190 (WCC) at 195I- 196A
[11]
2003 (5) SA 39
(W) at 43F