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[2016] ZAGPPHC 750
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Marikana Motor Dienste CC v Joemat-Peterson and Others (70529/14) [2016] ZAGPPHC 750 (24 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER 70529/14
DATE:
24/8/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
MARIKANA
MOTOR DIENSTE
CC
Applicant
And
MS
TINA JOEMAT-PETERSON MP
NO
....................................................
First Respondent
R
T MAQUBELA
NO
...............................................................................
Second
Respondent
ELDORA
INVESTMENTS 5 CC
…............................................................
Third
Respondent
MIBBALL
BIZZ LIMPOPO CC
….............................................................
Fourth
Respondent
JUDGMENT
TOKOTA
AJ
[1]
The third respondent is a close corporation registered as such in
terms of the laws of this country. It is the owner of the
property
known as Portion 356 of the farm Rooikoppies 297 having bought the
property from De Beer Transport CC. This property was
previously used
to conduct a business of,
inter alia,
a trucking transport,
earthmoving and construction business known as De Beer Transport CC.
De Beer Transport CC applied, and such
application was approved on 4
November 2011, for the rezoning of the property from agriculture to a
business. The land use was
therefore altered to accommodate a petrol
filling station and sold to the third respondent by De Beer Transport
CC on 17 July 2012.
[2]
The third respondent (hereinafter referred to as Eldora) having
registered the property in its own name then applied for
environmental
authorisation for the establishment of a petrol filling
station. The authorisation was granted by the Provincial Department
of
Economic Development, Environment, Conservation and Tourism (the
department) on 16 February 2011. The site was then cleared in
preparation for the commencement of business.
[3]
Although this is not clearly set out in the papers it appears that
subsequent to the granting of environmental authorisation
Eldora
applied to the Department of Energy for a licence to undertake
petroleum retailing activities.
[4]
Pursuant to the application by Eldora an advertisement was published
in two news papers calling upon all interested persons
to lodge
objections, if any, with the Department of Energy within twenty days
of such publication. The advertisement was published
on 12 July and 2
August 2013.
[5]
The applicant had an interest in the application in that it is
conducting a business of a filling station in the same area in
Marikana trading as Marikana Motors. It lodged an objection to the
granting of the licence to Eldora on the basis that there were
already more than optimal number of filling stations in the area.
[6]
The second respondent is the officer in the department appointed by
the Minister in terms section 3(1)(a) of the Petroleum Products
Act
No. 120 of 1977 (the Act) as the Controller of Petroleum Products
(the Controller). He denies that the objection was received
by the
department. He avers that the email address, used by the attorney
acting on behalf of the applicant, was discontinued. Mr
Erasmus, who
is the attorney who lodged the objection on behalf of the applicant,
and who also appeared in court, stated that the
email address used is
reflected in the advertisement. Mr Erasmus also lodged an objection
on behalf of the fourth respondent but
used a different email
address. This objection was received and considered by the second
respondent. After the objections had been
lodged nothing happened
which was brought to the notice of Mr Erasmus who lodged the
objections.
[7]
Towards the end of May 2014 the applicant claims to have become aware
of the granting of the licence by "happenstance".
This was
noticed when the third respondent was busy clearing the site
preparing for the building of the petrol station. On the
assumption
that the licence was granted by the Controller, on 30 May 2014 the
applicant filed an appeal to the Minister in terms
of section 12A of
the Act against the decision of the Controller granting the licence.
The officials of the department decided
not to submit the appeal to
the Minister on the grounds thereof that it was a "preliminary
appeal" and that they would
wait for a "final appeal".
Despite this decision they allowed Eldora to go ahead with the
preparations for the filing
station. This decision was never conveyed
to the applicant nor was receipt of the appeal acknowledged.
[8]
On 9 September 2014 Mr Erasmus addressed a letter to Mr B Martins,
who was the then Minister and to Mr Sibiya, the then Controller
of
Petroleum Products, in which he pointed out that he has observed that
work has commenced on the site which was an indication
that the
licence must have been granted to Eldora. He lamented about the
failure to acknowledge the earlier objection and an appeal.
He
pointed out that on the assumption that the appeal and the objection
were unsuccessful, he had instructions to bring an application
for
review of the decisions in Court. He demanded reasons for the
approval and copies of applications, site visit reports and proof
of
submission of the appeal to the Minister. Furthermore he requested
that Eldora be directed to cease the work pending the review
application. A copy of this letter was sent to Eldora at the same
time requesting Eldora to cease the activities.
[9)
On 19 September 2014 the applicant brought an urgent application
seeking, inter alia, an interim order interdicting and restraining
Eldora from proceeding with the constructions pending the review
application. It is not clear from the papers what happened in
Court
but I was informed from the bar that the matter was settled on the
basis that Eldora would stop the construction work at
the site
pending the finalisation of the review application.
[10]
It transpired during the urgent application that the
appeal was never considered as it was never submitted
to the
Minister. This application therefore concerns a review of the
decision to grant the licence and the decision not to submit
the
appeal to the Minister. It is opposed by the department and Eldora.
[11]
The appearances for the parties were as follows; Mr Erasmus appeared
for the applicant, Ms Kriel appeared for the department
and Mr
Rossouw SC appeared together with Mr Venter for Eldora. Mr Rossouw
was not involved in the drawing of papers and heads of
argument.
[12]
Mr Erasmus submitted that the matter started as a review of the
decision of the Minister to dismiss the appeal. This has changed
immediately it became clear that the appeal was never submitted to
the Minister. He argued that the decision by the second respondent
not to submit the appeal to the Minister ought to be reviewed and set
aside and the matter be remitted to the Minister to consider
the
appeal. He further argued that the granting of the licence should be
set aside and be replaced with the refusal thereof.
[13]
Ms Kriel, conceded that there was a proper appeal in terms of the
Petroleum Products Act. She
contended that since the appeal has not
been considered the review application is premature and should be
deferred until the internal
remedies have been exhausted. On this
ground therefore, so the argument ran, the application should be
dismissed. Furthermore,
she argued that the fact that the appeal was
not submitted to the Minister was the result of the applicant's own
doing in that
the appeal was headed "preliminary". She
contended that this Court should refuse to entertain the review
application
on the basis that the applicant should first exhaust
internal remedies. In her view the fact that the appeal has been
launched
and not yet considered prevents the applicant from
approaching this Court for review. She referred me to section 7(2)(c)
of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA);
Nichol v
Registrar
of
Pension
Funds
2008
(1) SA
383
(SCA);
and Koyabe v Minister for Home Affairs
(Lawyers for Human Rights
as Amicus Curiae)
2010 (4) SA
327
(CC).
[14)
Mr Rossouw on behalf of Eldora also advanced the same argument that
the internal remedies have not been exhausted. The rhetorical
question is whether the failure to exhaust the internal remedies can
be said to be a fault which is attributable to the applicant.
Every
step that the applicant took was ignored. The department did not
fulfil its constitutional obligation towards the applicant
as
envisaged in section 195 of the Constitution of the Republic of South
Africa, Act 1996 (the Constitution).
[15]
In terms of section 195 of the Constitution the State is expected to
promote and maintain a high standard of professional ethics;
the
Constitution demands that public administration must be accountable;
there must be transparency which must be fostered by providing
the
public with timely, accessible and accurate information. The
department
failed
to fulfil this constitutional
obligation.
[1]
[16]
Mr Rossouw, however, took the argument a step further and maintained
that there was no objection lodged by the applicant in
that it was
filed late. Therefore, so the argument ran, there was nothing to
appeal against. He contended that the appeal ought
to be preceded by
an objection.
[17]
Mr Rossouw's argument appears to be attractive but the substance
thereof will be examined later in this judgment.
Failure
to exhaust internal remedies.
[18]
In my view the question of failure to exhaust the internal remedies
by the applicant should be viewed in the light of the second
respondent
having decided not to submit the appeal to the appropriate body
entrusted with the duty to consider the appeal in terms
of section
12A
of
the Act. When the second respondent decided that the appeal was
not going
to be submitted to the Minister he was not authorised by
any
legislation to do so. He does not have power to decide whether or not
the appeal is proper. He had a duty to submit the appeal
to the
Minister. It is the latter who would decide whether or not the appeal
was
defective.
There was therefore a dereliction of duty on the part of the second
respondent. The argument now presented to me seeks
to have the
respondents benefit from their own misconduct. It is a well
established
principle that a party should not be allowed to benefit from his own
wrong.
[2]
[19]
The second respondent did not even have a courtesy of acknowledging
receipt of either the objection (at least in respect of
the one
allegedly received) and the applicant was not even notified that the
appeal was not going to be submitted to the Minister
for whatever
reasons. If he decided not to process the appeal it would be expected
of
him
to inform the applicant as that decision affected the rights of the
applicant adversely.
[20]
There is a duty founded,
inter
alia,
in
the emphasis of accountability and transparency in section 195(1)(f)
and (g) and
the
requirement of a high standard of professional ethics in s195(1)(a)
of the Constitution. It has been said that public functionaries,
as
the arms of
the
state,
are
vested
with
the
responsibility,
in terms
of
s
7(2)
of
the
Constitution, to 'respect, protect, promote and fulfil the rights in
the Bill
of
Rights'. As bearers of this duty, and in performing their functions
in
the
public interest, public functionaries must, where faced with an
irregularity
in the public administration, seek to redress it. This is the
responsibility carried by those in the public sector
as part of the
privilege of serving
the
citizenry who invest their trust and taxes in the public
administration.
[3]
The
simple thing that the Controller should have done, if he was of the
opinion that the appeal was irregular, was to write a letter
to the
applicant advising it of his view of the appeal. The perception that
it was merely a "preliminary" appeal would
have been
corrected.
[21]
Furthermore section 33 of the Constitution provides that everyone
whose rights have been adversely affected by administrative
action
has a right to be given written reasons for the decision affecting
his rights.
22]
The decision by the second respondent was not authorised by
legislation, it was therefore procedurally unfair. I am therefore
not
persuaded that failure to exhaust internal remedies in this matter
can be a ground for refusing to entertain the matter. The
applicant
did what it had to do to exhaust the internal remedies but this was
frustrated by the departmental officials. In any
event it has applied
for exemption which, in the circumstances, establish exceptional
circumstances why the matter should be entertained.
Was
there an objection against the granting of the licence.
[23]
The first advertisement was published on 12 July 2013. The objection
by the applicant was sent on 1 August 2013. This objection
was
emailed to the address appearing in the advertisement. This is the
email which was alleged to have been discontinued and therefore,
so
it was alleged, the objection was not received. The objection by the
fourth respondent is dated 18 October 2013 and it was received
and
considered by the department. This 1s the objection which, it is
contended, was out of time.
[24)
Let me now examine the argument of Mr Rossouw. First, the objection
which was lodged on 1 August 2013 was within the twenty
day period.
The argument is that since it was never received it was never lodged.
Mr Erasmus argued that the email, which he used,
was in the
advertisement and therefore it does not lie in the mouth of the
second respondent to deny that he received it. Mr Rossouw
argued that
the address to which the objection should have been lodged is a
physical address of the department and not the email
address.
Therefore the applicant did not comply with the directive of the
advertisement. The email address is made available
for contact
purposes.
[25]
It is perhaps expedient at this point to quote the relevant portions
of the advertisement.
"The
purpose of the application is for the applicant to be granted
a
licence to undertake petroleum retailing activities as detailed in
the application. Arrangements for viewing the application
documentation can be made by contacting the Controller of Petroleum
Products by:
.
Telephone:
(012) 444-4444 or
.Fax
(012) 341 4228; or
.E-mail:
petroleum.controller @energy.gov.za
Any
objection to the issuing of
a
licence in respect of this
application, which
must clearly quote the application
number
above, must be lodged with the Controller of
Petroleum Products within
a
period
of twenty days (20)
working days from the date of publication of this
notice.
Such objection must be lodged at the following physical address:
Physical
address:
The
Controller of Petroleum Products
Department
of Energy 70 Meintjies Street Sunnyside
Pretoria
0002".
Postal
address
The
Controller of Petroleum Products Department of Energy
Private
Bag X 19 Arcadia
0007
[26]
In my view this argument that the use of email address renders the
objection invalid is to place form over substance. First,
the email
address can serve the purpose if the objection reaches the
Controller. He cannot simply ignore the objection because
it came to
him by an email.
[27]
Second, the objection which was sent in October 2013 using another
email address was considered in the decision making process.
[28]
Mr Rossouw argued further that the appeal can only be made by an
affected person who has lodged an objection. In his argument
a person
who has not lodged an objection cannot lodge an appeal because he is
not the person contemplated in section 12A of the
Act. Section 12 A
reads:"
"(
1) Any person directly affected by a decision of the Controller of
Petroleum Products may, notwithstanding any other rights
that such a
person may have, appeal to the Minister against such decision.
(2)
An appeal in terms of paragraph (a) shall be lodged within 60 days
after such decision has been made known to the affected person
and
shall be accompanied by-
(a)
a written explanation setting out the nature of the appeal;
(b)
any documentary evidence upon which the appeal is based.
(3)
The Minister shall consider the appeal, and shall give his or her
decision thereon, together with written reasons therefor,
within the
period specified in the regulations."
[29]
I must therefore decide, first, whether there was any objection
lodged, if so, whether such objection was lodged out of time.
Second,
if it was lodged out of time whether there can be any condonation for
the late filing thereof. Third, if I find that there
was no
objection, whether there can be any appeal against the decision of
the second respondent in the absence of such objection.
Fourth, if I
find that there was no objection in the sense that it was filed out
of time and there is no room for condonation whether
the section
precludes any appeal by any affected person other than the one who
has lodged an objection.
Was
there any objection lodged.
[30]
The process of arriving at the decision will involve an
interpretation of section 12A of the Act. I could not find any
provision
relating to the lodging of objections in the Act itself.
This is however provided for in the regulations.
Regulation
4 provides:
"4
Notice of application for site
licence
(1)
When an application for
a
site licence contemplated in
regulation 3 is
accepted, an applicant in respect of whom
section 20 of the Act is
not
applicable, must
have
a
notice of the application published in
a
prominent
manner, in at least two of the most popular
newspapers
circulating in the area of the proposed activity in two official
languages,
one of which
must be English.
(2)
The notice contemplated in subregulation (1) must
state-
(a)
the name of the applicant;
(b)
the application number issue by the Controller upon
acceptance of the
application;
(c)
the purpose of the application;
(d)
the place where the application will be available for
inspection by any member of the public;
(e)
the period within which any obiection to the issuing of the
licence
may be lodged with the Controller:
and
(f)
the
address of the Controller where
objections may be lodged.
(3)
The
place contemplated in subregulation (2)(d)
must be the
physical
address of the Controller's office where the
application
was
lodged.
(4)
The period contemplated in subregulation (2)(e ) must be at
least
20
working da ys from the date of publication of the
n
otice.
(5)
Proof of the publication of the notice of application
contemplated in
subregulation (1) must be submitted to the
Controller."
[31]
To the extent that the argument maintains that once the twenty day
period expires after the publication without any objection
having
been lodged the objector has no remedy, I cannot agree. Mr Rossouw's
argument seems to me to be founded on the premise that
the twenty day
period is the maximum period required and there is no provision for
condonation in the Act.
[32]
When interpreting any legislation section 39(2) of the
Constitution
enjoins courts, to developing the common law, to promote the spirit,
purport and objects of the Bill of Rights.
[4]
That requires courts,
when
interpreting a statute, to avoid an interpretation that would render
the statute
unconstitutional and to adopt an interpretation that would
better
promote
the
spirit, purport and objects of the Bill of Rights.
[33]
An interpretation that absolutely closes the door for an objection
by virtue
of the expired time limit would, in my view, not be in line with
the
provisions of section 39(2) of the Constitution.
[5]
To interpret regulation
4 so as
to close
the door for any objection would infringe upon the rights of the
applicant to a procedurally fair administrative action
as well as
the right
to have any dispute that can be resolved by the application of
law decided
in a fair public hearing before a court or, where appropriate,another
independent and impartial tribunal or forum. Furthermore,
the use of
the phrase "at least twenty days" in sub-regulation 3
presupposes
that twenty days is the lowest number of days not the maximum
number of
days. In my view therefore the objection can be lodged even on a
period longer
than
twenty
days.
[34]
The spirit, purport and objects of the Bill of Rights is to be
gleaned from the rights guaranteed in the Bill of Rights which
is the
cornerstone of our constitutional democracy. I conclude therefore
that the lodgement of the objections was not late.
[35]
A further argument is that in the absence of an objection there can
be no appeal. This argument is also not convincing. Nothing
in the
section suggests such an interpretation. Besides, to interpret
section 12A in that manner would offend against the provisions
of
section 39 of the Constitution. In any event having found that the
lodgement of the objection could be filed even beyond the
twenty day
period it is, strictly speaking, no longer necessary to decide this
issue.
[36]
Similarly, the question whether the only person who can appeal is the
one who lodged an objection need not be decided. But
I have
reservations in the correctness of such argument. The section refers
to
"any person directly affected by
a
decision"
and not to a person who has lodged an objection.
[37]
In the light of what I have discussed above the decision by the
second respondent was unlawful and falls to be set aside. It
must
follow therefore that the decision approving a licence cannot stand
as the process must take its course after the Minister
has taken a
final decision on appeal.
[38]
There is however one last aspect which I wish to highlight in this
matter. The papers were voluminous and plagued with unnecessary
annexures causing a bulky record. It is needless to restate the well
established principle that a party is not entitled to simply
annex
papers to
the
affidavit without identifying what portions it relies on for its
cause
of
action or
defence.
[6]
[39]
Parties should endeavour as far as it is humanly possible to assist
the Court and not make it difficult for the Court to identify
the
issues in dispute. The applicant is expected to set out its case in
chronological and understandable manner. The factual background
must
be limited to the facts which are relevant for the determination of
the issues. The cause of action must be clearly identifiable
and not
be left to Court to fumble in the forest of assorted trees.
[40]
The same principle applies to the respondent. The respondent must set
out succinctly what its basis of defence is even before
responding
the applicant's founding affidavit. It is unhelpful and time
consuming when the respondent simply responds to the paragraphs
of
the founding affidavit. In that event the Court has to trawl through
all the paragraphs trying to find out what the respondent's
case is.
[41]
In the interest of brevity and without prejudicing the issues, the
replying affidavit must, as far as this possible, be confined
new
issues that arose in the answering affidavit and should not be prolix
and repetitive.
[42]
In this particular case I struggled to find out the chronological
events that led to the granting of the licence to third respondent.
None of the parties were helpful in this regard. It is very important
that judgments must be based on true disputes that had to
be
resolved. Affidavits must therefore serve their purpose of defining
issues. Nothing would be more painful to the parties than
to base any
judgment on a wrong perception of the real issues between the
parties. Judges are human beings and can easily make
mistaken
formulation of the parties' case.
[31]
Having said all of the above I make the following order:
1.
The decision of the second respond not to submit the appeal to the
first respondent is reviewed and set aside;
2.
The granting of the licence to the third respondent is reviewed and
set aside;
3.
The matter is remitted to the Department of Energy and the second
respondent is directed to submit the applicant's appeal to
the
Minister for her decision.
4.
The respondents are ordered to pay costs of the application.
DATE
OF HEARING: 27 JULY 2016.
DATE
JUDGMENT DELIVERED: 24 AUGUST 2016.
Counsel
for the applicant: Mr G Erasmus (Attorney)
Instructed
by Erasmus Attorneys
For
the first and second respondents Adv C A Kriel
Instructed
by the State Attorney Pretoria
' . .
21
Third
respondent's Adv D P J Rossouw SC
P
A Venter Instructed by De Beer and Slabbert Attorneys
[1]
See Khumalo v MEC for Education, KZN
2014 (5) SA 579
(CC) (49)
[2]
See Magistrate Pangarker v Botha and Another
2015 (1) SA 503
(SCA)
para 34; NDPP v Phillips
2002 (4) SA 60
(W) para.43; Info D B
Computers v Newby
1996 (1) SA 105
(W) at 108A
[3]
.See Khumalo v MEG for Education, KZN
2014 (5) SA 579
(CC)
para.35
[4]
See Tshwane City v Link Africa and Others
2015 (6) SA 440
(CC)
para.123; Veldman v OPP, WLD
2007 (3) SA 210
(CC); Msunduzi Muni v
MEC for Housing, KZN
2004 (6) SA 1
(SCA) para.23
[5]
See Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC); Moise v
Greater Germiston TLC: Minister of Justice & Constitutional Dev
Intervening (Women's Legal Centre as Amicus
Curiae) 2001 (4) SA 491
(CC);
[6]
Swissborough Diamond Mines (Pty) Ltd v Govt of the RSA
1999 (2) SA
279
(T); National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) para 47: Helen Suzman
Foundation v President of the RSA
2015 (2) SA 1
(CC)
para.35