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[2018] ZAKZPHC 19
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A B M Motors v Minister of Minerals and Energy and Others (12126/2016) [2018] ZAKZPHC 19; 2018 (5) SA 540 (KZP) (28 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO:
12126/2016
In
the matter between:
A
B M MOTORS
Applicant
and
THE
MINISTER OF MINERALS AND ENERGY
First
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS Second
Respondent
MOVE
ON UP 1074
CC
Third to Tenth Respondents
AND
SEVEN OTHER OBJECTORS
ORDER
The
application is dismissed with costs.
JUDGMENT
Delivered
on:
28
May 2018
Ploos
van Amstel J
[1]
This is an application for the review of a decision by the Minister
of Minerals and Energy
[1]
in
terms of which she dismissed an appeal against a decision by the
Controller of Petroleum Products not to issue site and retail
licenses in terms of the Petroleum Products Act 120 of 1977 (‘the
Act’). The review was brought in terms of the Promotion
of
Administrative Justice Act 3 of 2000 (‘PAJA’).
[2]
The applicant is A B M Motors, a partnership which owns the site in
question in Newcastle. The first respondent is the Minister
of
Minerals and Energy, the second respondent is the Controller of
Petroleum Products, and the third to the tenth respondents are
corporate entities which trade as service stations in Newcastle. I
shall refer to the first two respondents as ‘the Minister’
and ‘the Controller’ respectively, and to the third to
the tenth respondents as ‘the respondents’.
[3]
During November 2014 the applicant lodged with the Controller
applications for a site licence and a retail licence as contemplated
in the Act and the regulations promulgated thereunder. Such licences
were required for the retail of petroleum products on the
site. The
respondents filed written objections to the applications.
[4]
By letter dated 2 July 2015 the Controller notified the applicant
that the applications had been unsuccessful, and set out the
reasons
for the decision. These were, in summary, that the Controller was of
the view that the granting of the licences would not
promote an
efficient retailing petroleum industry; that there were fifteen
existing filling stations that served the target market
of the
proposed business; that there was no indication of substantial
economic growth in the area to warrant a new filling station
that
would be commercially viable without having a negative impact on the
existing filling stations; that there was not enough
evidence that
the new business would be economically viable; that the site visit
and the documents submitted by the applicant did
not support the view
that the site would contribute towards achieving the objectives of
licensing set out in the Act; and that
there was no need for another
site in the area in question.
[5]
On 28 August 2015 the applicant submitted an appeal to the Minister
in terms of section 12A of the Act. The appeal was opposed
by the
respondents. Their grounds of opposition were set out in a letter by
their attorneys, dated 24 November 2015. The applicant
responded by
making supplementary submissions in a letter dated 1 December 2015.
[6]
On 11 May 2016 the applicant was informed that the appeal had been
unsuccessful and it was provided with the Minister’s
written
reasons. The application papers for a review of the Minister’s
decision were issued by the registrar of this court
on 28 October
2016. The Minister and the Controller delivered a notice on 22
November 2016, through the State Attorney, of their
intention to
abide by the decision of the court.
[7]
The respondents however contend, by way of a point in limine, that
the review proceedings were not instituted within the period
of 180
days referred to in section 7(1) of PAJA, as the application papers
were only served on them well after the expiry of that
period. If
this is correct then this court has no power to consider the merits
of the review.
[2]
[8]
Two questions arise with regard to section 7(1). The first is when it
can be said that the review proceedings were instituted.
The second
question is whether the purported service of the papers on the
attorneys who had represented the respondents in the
appeal to the
Minister, constituted good service.
[9]
It is not always clear when an application can be said to have been
brought, initiated or instituted. This may vary, depending
on the
context and the statutory provisions that apply.
[10]
Section 7(1) provides that any proceedings for judicial review in
terms of section 6(1) must be instituted without unreasonable
delay
and not later than 180 days after the date on which the person
concerned was informed of the administrative action, became
aware of
the action and the reasons for it or might reasonably have been
expected to have become aware of the action and the reasons.
[11]
Uniform Rule 53, which deals with reviews, provides, in summary, that
all review proceedings shall be by way of notice of motion
directed
and delivered to the decision maker and to all other parties
affected.
[12]
Uniform Rule 4(1)(a) refers to the service of any process of the
court and any document initiating application proceedings.
Uniform
Rule 6(5)(a) provides that every application other than one brought
ex parte
must be brought on notice of motion and true copies of the notice,
and all annexures thereto, must be served upon every party to
whom
notice thereof is to be given. The wording of the rule suggests that
the application cannot be said to have been brought until
it has been
served. See in this regard
Mame
Enterprises (Pty) Ltd v Publications Control Board
[3]
.
[13]
In
Tladi
v Guardian National Insurance Co Ltd
[4]
the applicant brought an application in terms of the Motor Vehicle
Accidents Act 84 of 1986 for leave to bring his claim after
it had
become prescribed. In terms of that Act he was obliged to make such
application within 90 days of his claim having become
prescribed. The
application papers were issued by the Registrar within the period of
90 days but only served on the respondent
some three weeks after the
expiry of that period. Botha J said it was therefore crucial to
establish whether an application can
be considered to have been made
if it had merely been issued but not served. Having considered a
number of reported cases he held
that the application had not been
made within the requisite 90 days. He said he did not think that it
is too onerous to require
of an applicant not only to issue his
application and file it with the Registrar but also to serve it. He
added that another reason
why service should be regarded to be the
minimum requirement for the making of an application of the kind in
question is that from
that stage on it is in the power of the
respondent to prevent any undue protraction. Also see
Mbatha
v Lyster & others
[5]
and
Taboo
Trading 232 (Pty) Ltd v Pro Wreck Scrap Metal CC & others
.
[6]
[14]
In
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd &
others
[7]
a judge had granted a temporary interdict pending the final
determination of review proceedings, on condition that the review
proceedings had to be initiated by a specified date. The application
papers were issued timeously but served one day late. It was
therefore contended in subsequent proceedings that the temporary
interdict had lapsed and that it did not prevent the granting
of
certain prospecting rights which occurred after the specified date.
The question that then arose for determination was whether,
in the
absence of service, the review proceedings had been initiated by the
specified date. The court below held that the lodging,
filing and the
issue of the application papers by the registrar had to be regarded
as the initiation of the proceedings envisaged
in the order. It held
that the service of such process was a further step to get the
respondent involved in the litigation.
[15]
On appeal Mhlantla JA said, in interpreting the order, that there
could be no doubt that the judge intended that the review
should
effectively proceed by the specified date. He said the judge could
never have intended for the review papers to be issued
and the case
number allocated by the registrar and thereafter remain supine. The
learned judge referred with approval to
Mame
and
Tladi
and held that the intention of the order was that notice of the
application had to be given to the registrar and the application
had
to be served on the affected parties by the specified date. He held
that the finding of the court below that the issue of the
application
papers had to be regarded as the initiation of proceedings could not
be sustained.
[16]
It was not contended by the applicant in the present matter that the
mere issue of the review papers by the registrar was sufficient
for
the review proceedings to be instituted. This accords with the
decisions in
Tladi
and
Finishing
Touch
.
[17]
Counsel for the applicant however submitted that the service of the
review papers on the Minister and the Controller occurred
within the
period of 180 days, that service on the decision makers sufficed and
that the review proceedings were instituted timeously.
[18]
The respondents had been involved in the matter from the outset –
they opposed the application for the issue of the licences
and they
opposed the appeal to the Minister. They were interested parties in
the review proceedings, as is demonstrated by the
fact that they were
cited as respondents. It makes no sense to me to hold that service of
the review papers on the decision maker,
but not on the other parties
affected, suffices for the review proceedings to be instituted. In
many cases, as in the present one,
it is not the decision maker who
opposes the review, but a third party who was involved in the
administrative action and who has
a direct and substantial interest
in the outcome of the review. This is why Uniform Rule 6, which
prescribes how an application
must be brought, provides in sub-rule
(2) that when relief is claimed against any person, or where it is
necessary or proper to
give any person notice of such application,
the notice of motion must be addressed to both the registrar and such
person, and why
sub-rule (5)(a) provides that every application other
than one brought
ex
parte
must be brought on notice of motion and must be served upon every
party to whom notice thereof is to be given. In
Finishing
Touch
,
at para 20, Mhlantla JA said notice of the application had to be
‘given to the registrar and the application served on
the
affected parties’
[8]
.
This means all the affected parties, not only the decision makers.
[19]
I do not consider that this approach will place an undue burden on
applicants for judicial review in terms of PAJA. In a case
where the
review papers were issued and served timeously, with the exception
of, say, one affected party, the court may in terms
of section 9
extend the period of 180 days where the interests of justice so
require.
[20]
Counsel for the applicant sought to overcome this difficulty by
relying on Uniform Rule 4(1)(aA), which provides that where
the
person to be served with any document initiating application
proceedings is already represented by an attorney of record, such
document may be served upon such attorney by the party initiating
such proceedings. The context here is as follows.
[21]
The application papers for the review were issued on 28 October 2016.
On 31 October 2016 the applicant’s attorney wrote
to the
attorney who represented the respondents in their opposition to the
application for the licences and the appeal to the Minister.
The
applicant’s attorney stated that he had made an application for
the review of the Minister’s decision and that
the respondents
had been cited in the review application. He asked to be advised
whether the respondents’ attorney would
be willing to accept
service of a notice of motion and supporting documents per courier or
whether he wanted the documents served
by the sheriff.
[22]
The respondents’ attorney replied that his involvement in the
matter pertained to the ‘internal objection’
and the
appeal process, that he held no further instructions in the matter
and that he was not mandated to accept service of any
further legal
processes in the matter. He said the applicant was required to comply
with the provisions of Uniform Rule 4 and effect
service on the
respondents directly. He said that in the event that he was
subsequently instructed in the proposed review application
he would
deliver a notice of appointment as attorney of record.
[23]
On 7 November 2016 the applicant’s attorney responded and said
he drew his counterpart’s attention to Rule 4(aA)
(sic) which
provides that the documents could be served at his offices. The
response by the respondents’ attorney on 11 November
2016 was
that he was well aware of the contents of Rule 4(1)(aA) and did not
agree that the review application could be served
at his offices. He
said he once again recorded that, as at that date, his offices were
not the attorneys of record in the review
application nor had he been
mandated to accept service of any process in the review application.
[24]
Undeterred, the applicant’s attorney wrote again on 18 November
2016 and recorded that as far as he was concerned the
respondents’
attorney had been properly served.
[25]
In argument before me counsel was hard pressed to explain on what
basis the attorney concerned could be said to have been the
respondents’ attorney of record in November 2016. He submitted
that as the attorney represented the respondents in opposing
the
applications for the licences and the appeal to the Minister, he
remained on record provided that his mandate had not been
terminated.
[26]
Firstly, there is nothing on the papers to suggest that after the
Minister dismissed the appeal the respondents’ attorney
remained ‘on record’ to deal with any review that may be
instituted. Secondly, this is not what ‘attorney of
record’
means in the context of Uniform Rule 4(1)(aA). In the context of the
Uniform Rules an attorney of record is one who
has formally placed
himself on record as representing a party in legal proceedings before
the court. In
BHP
Billiton Energy Coal South Africa Ltd v Minister of Mineral Resources
& others
[9]
the court said, with reference to Herbstein & Van Winsen
[10]
,
that it is apparent that Uniform Rule 4(1)(aA) applies to proceedings
already instituted, so that it in effect applies to ancillary
and
interlocutory applications.
[27]
The delivery of the review papers on the respondents’ attorney
in November 2016 was therefore of no effect. It follows
that the
review proceedings were not instituted within the period of 180 days
referred to in section 7(1)(b) of PAJA. There was
no application by
the applicant for an extension of the period in terms of section 9,
with the result that I have no power to consider
the merits of the
review.
[28]
In case another court takes a different view regarding the point in
limine, I record that I would have dismissed the application
on the
merits. In argument before me counsel for the applicant emphasised
two of the grounds relied upon for the review. He said
he did not
abandon the other grounds mentioned in the founding affidavit, but
did not wish to elaborate on them in argument.
[29]
The first point was a submission that the Minister had overemphasised
the status quo, which was that there were already fifteen
filling
stations in the area concerned, that there was no need for another
one, and that their economic viability would be jeopardised
if
another one were allowed. I am not satisfied that the Minister erred
in taking these considerations into account, or that she
overemphasised them. In terms of section 2B of the Act the objectives
which have to be given effect to in considering the issuing
of any
licences in terms of the Act, include the promotion of an efficient
retailing petroleum industry and facilitating an environment
conducive to efficient and commercially justifiable investment. In
addition, Regulation 18(2)
[11]
provides that in the case of an application for a retail licence the
Controller must be satisfied that the retailing business is
economically viable and that it will promote licensing objectives
stipulated in section 2B(2) of the Act.
[30]
The second point was that the Minister had taken into account
information which was not available to the applicant. This was
a
reference to the volume of fuel which had been pumped in 2014 by the
other filling stations in the area. This information was
obtained
from the fuel companies which supplied the filling stations, and
formed part of the documentation which was placed before
the
Controller when he considered the applications for the licences. The
information is also contained in the record which was
made available
in terms of Uniform Rule 53. I see no irregularity here and there is
no suggestion that the applicant requested
this information and that
it was withheld.
[31]
The other grounds of review mentioned in the application papers were
that the Minister did not consider afresh the merits of
the
applications; that she misconstrued the considerations that the
Controller was obliged to take into account in considering
the
applications; that she disregarded the evidence that had been put up
in respect of vehicle traffic counts; and that she disregarded
the
fact that when the applicant bought the site it was zoned for use as
a garage or service station. None of these grounds is
supported by
the evidence.
[32]
It follows that the application for a review cannot succeed. It is
dismissed with costs.
_________________
Ploos
van Amstel J
Appearances:
For
the Applicant
:
D Crampton
Instructed
by
:
Singh &
Gharbaharan.
c/o Mastross
Incorporated
Pietermaritzburg
For
the 3
rd
,
5
th
,
7
th
and 8
th
Respondent
:
U Lottering
Instructed
by
:
Gildenhuys
Malatji Incorporated
Pretoria
Date
Judgment Reserved
:
15 May 2018
Date
of Judgment
:
28 May 2018
[1]
I refer to the Minister as she is described in the
Petroleum
Products Act 120 of 1977
. She was incorrectly referred to in the
application papers as ‘The Minister of the Department of
Energy’.
[2]
Opposition to Urban Tolling
Alliance v SANRAL
[2013] 4
All SA 639
(SCA) para 41.
[3]
Mame Enterprises (Pty) Ltd v
Publications Control Board
1974
(4) SA 217
(W) 219H-220D
[4]
Tladi v Guardian National
Insurance Co Ltd
1992 (1)
SA 76
(T)
[5]
Mbatha v Lyster & others
[2001] JOL 7868 (LAC)
[6]
Taboo Trading 232 (Pty) Ltd v Pro
Wreck Scrap Metal CC & others
2013
(6) SA 141 (KZP)
[7]
Finishing Touch 163 (Pty) Ltd v
BHP Billiton Energy Coal South Africa Ltd & others
2013 (2) SA 204 (SCA)
[8]
My emphasis.
[9]
BHP Billiton Energy Coal South
Africa Ltd v Minister of Mineral Resources
&
others
2011 (2) SA 536
(GNP) 542F-543C. Approved, on this point, on
appeal in
Finishing Touch
.
[10]
Herbstein & Van Winsen
The
Civil Practice of the High Courts of South Africa
(5 ed) vol 1 at 343 and 359.
[11]
Regulation 18(2)
of the Regulations
regarding Petroleum Products Site and Retail Licences, GN R286,
GG
28665, 27 March 2006 (as amended).