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[2016] ZAGPPHC 1149
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Lepelle Industrial and Mining Suppliers CC v Streaks Ahead Investment (Pty) Ltd and Others (76409/14) [2016] ZAGPPHC 1149 (24 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
24/11/2016
CASE
NO: 76409/14
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
LEPELLE
INDUSTRIAL AND MINING SUPPLIERS CC
Applicant
and
STREAKS
AHEAD INVESTMENT (PTY) LTD
First
Respondent
SOROKA
FILLING STATION CC
Second
Respondent
THE
MINISTER OF ENERGY
NATIONAL
GOVERNMENT
Third
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
Fourth
Respondent
BA-PHALABORWA
LOCAL MUNICIPALITY
Fifth
Respondent
ERF
344 ONTWIKKELING (PTY) LTD
Sixth
Respondent
THE
MEC DEPARTMENT OF ECONOMIC
DEVELOPMENT,
ENVIRONMENT AND
TOURISM
Seventh
Respondent
THE
MEC FOR LOCAL GOVERNMENT
AND
HOUSING, LIMPOPO PROVINCE
Eight
Respondent
REGISTRAR
OF
DEEDS
Ninth
Respondent
Held
;
the applicant had satisfied the requirements for the granting of an
interim interdict which rendered the applicant entitled to
the relief
sought.
Annotations:
Unreported
Cases
Helen Suzman Foundation
and Another v Minister of Police and Others, case number: 23199/06
NGHC
Searle v Mossel Bay
Municipality and Others (case number: 1237/09, 12 February 2009 CPD
Reported
Cases
Setlogelo v Setlogelo
1914 (1) 221
Webster v Mitchell
1948
(1) SA 1186
(WLD)
L. F. Boshoff Investments
(Pty) Ltd v Cape Town Municipality
1969 (2) SA 256
(C) Da Silva v
Coutinho
1971 (3) SA 123
(A) 140
Unity Longhauls (Edms)
Bpk v Grindrod Transport (Pty) Ltd
1978 (2) SA 102
(T) 109
National Chemsearch (SA)
(PTY) Ltd v Barrowman
1979 (3) SA 1992
(T)
Silver Crystal (Pty) ltd
v Namibia Diamond Corporation (Pty) Ltd
1983 (4) SA 884
(D) 888- 889
Begeman v Cirota 1983 TP
(1) 270
Masuku v Minister van
Justice
1990 (1) SA 837
(A)
Knop v Johannesburg City
Council
1995 (2) SA 1
(A)
Transnet Bpk h/a Coach
Express en 'n Ander v Voorsitter, Nasionale Vervoerkomissie en Andere
1995 (3) SA 844
(T)
Radio Islam v Chairman,
Counsel of the Independent Broadcasting Authority
1999 (3) SA 897
(w)
Olitzki Property Holdings
v State Tender Board
[2001] ZASCA 51
;
2001 (8) BCLR 779
(SCA),
2001 (3) SA 1247
(SCA)
Ladychin Investments v
South African National Road Agency
2001 (3) SA 344
(NPD)
Ouderkraal Estates (Pty)
Ltd v City Of Cape Town and Others
2004 (6) SA 222
Thomson v Head of
the Department of Agriculture, Conservation, Environment and Tourism,
North West Province and Others
2008 (1) ALL SA 392
(T)
PS Booksellers (Pty) Ltd
and Another v Harrison and Others
2008 (3) SA 633
(C)
[2007] 3 All SA 552
Van der Westhuizen and
others v Butler and Others
2009 (6) SA 174
CPD
Camps Bay Residents and
Ratepayers Association and Others v Augoustides and Others
2009 (6)
SA 190
(WCC)
Van der Westhuizen v
Butler
2009 (6) SA 175
(C)
National Treasury and
Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA
223
(CC)
Statutes
Petroleum Products Act
120 of 1977 (
"PPA
")
National building
Regulations and Building Standards Act 103 of 1977
Environmental
Conservation Act 73 of 1989 ("
ECA
")
National Environmental
Management Act of 107 1998 ("
NEMA
") Promotion of
Administrative Justice Act 3 of 2000 ("
PAJA
")
Access to Information Act
2 of 2000 ("
PAIA
")
[1]
This is an application in which the appellant seeks a temporary
interdict against the first, second and sixth respondents in
terms
whereof the first, second and sixth respondents are prohibited from
taking any further steps to continue with construction
activities
and/or trading or retail activities and/or selling of petroleum
products, and/or conducting business of any nature whatsoever
on Erf
3465 situated in the Township of Namakgale B, district of Namakgale
held by the sixth respondent under the title deed TG
12564/2013 ("Erf
3465").
[2]
A further order is sought declaring that the temporary interdict
shall be valid and binding on all the parties to this application
pending:
2.1 the finalisation of the
applicant's review application against the decision of the third
respondent on appeal to grant a site
licence on Erf 3465 under
licence application F2013/02/050001, in respect of the first
respondent and a new retail licence under
application
F/2013/02/05/0002.
2.2 the applicant's internal appeal
that has been lodged with the fourth respondent pertaining to the
transfer of the site licence
in respect of Erf 3465 Namakgale B
Township, from first respondent to sixth respondent;
2.3 any review application that may
follow from the decision of the fourth respondent pertaining to
applicant's internal appeal
filed as referred to in paragraph 2.2
above;
2.4
final relief in terms of
Part B of this application.
2.5 Costs of Part A of this
application.
Background
[3]
The background to this matter is that the applicant is the owner of
Impala service station situated at corner Main road and
Gravelotte
Highway (R71) Namakgale.
[4]
The applicant's service station is located in close proximity to the
main entrance and exit from Namakgale Township directly
on the main
route to Phalaborwa which is the nearest town.
[5]
Due to its location, Namakgale Township constitutes the applicant's
main customer base, the only other competitor being the
old Sasol
garage which operates at or near the secondary entrance to Namakgale
Township.
[6]
A significant portion of the applicant's customer base is the taxi
operators by virtue of its business being located on the
main taxi
route.
[7] Within a radius of
less than two kilometres from the applicant's business is a property
known as Erf 3465 which is the subject
of this application and which
was previously owned by the Ba- Phalaborwa Municipality, the fifth
respondent herein.
[8]
Erf 3465 was transferred to the first respondent on 14 July 2008 by
the Department of Housing Affairs Limpopo and the first
respondent
made an application for business rights for the development of a
shopping centre in 2007 on the property in question.
[9]
On 2 September 2012 the first and sixth respondents concluded a sale
agreement for the purchase of Erf 3465 and subsequently
a lease
agreement was entered into between them on 25 November 2012 for the
purposes of trading as a filling station.
[10]
Despite the pending transfer of the property to the sixth respondent,
the first and second respondents proceeded to lodge applications
with
the Controller of Petroleum Products (fourth respondent) for a site
and retail licence for the establishment of a filling
station on Erf
3465 on November 2012.
[11]
The applicant is in possession of the applications made by the
respondents having obtained them from the fourth respondent's
office
in terms of the Access to Information Act 2 of 2000 ("PA/A").
[12]
From those applications it appears that the first and second
respondents omitted to mention the pending transfer of Erf 3465
from
the first respondent to the sixth respondent. Besides this omission
the applicant submits that the application for business
rights
regarding Erf 3465 is plagued by procedural irregularities which
render a number of the respondent's subsequent actions
unlawful, for
example:
12.1 The transfer took place on 21
February 2013 but the licences were only granted on 16 July 2013.
12.2 When the licences were granted,
the third and fourth respondents were not informed thereof.
12.3 In light of the failure to
disclose that the first respondent was no longer the owner of Erf
3465, persisting with the application
was in contravention of the
Petroleum Products Act 120 of 1977
in that it constituted a material
misrepresentation of the true facts which would have resulted in the
licence not being granted
if it was disclosed. The applicant submits
in this regard that the site licence was obtained through fraud which
should render
the granting of the said licence unlawful.
[13]
The applicant saw an advertisement relating to the first respondent's
site licence application in The Beeld newspaper on or
about 09 April
2013 and lodged an objection to it with the Department of Energy on 7
May 2013.
[14]
The applicant received no further correspondence from the fourth
respondent until he learnt of his decision upon making enquiries
on
15 August 2013. He learnt that the fourth respondent had granted the
first and second respondent's licences on 10 July 2013.
7.6 Streaks Ahead Investments (Pty)
Ltd have been advised that they must take the necessary steps to
amend the site licence to show
that Erf 344 Ontwikkeling (Pty) Ltd is
currently the owner of the site.
7.7 We submit that the site licence
should now be transferred from Streaks Ahead Investments (Pty) Ltd to
Erf 344 Ontwikkeling (Ptd)
Ltd. On a strict reading of
regulation 12
of the Regulations, the transfer cannot be done in terms of this
regulation as the licence was not issued to the owner of the site
at
the time of the licence and the 6 (six) month period referred to in
the Regulation has in any event lapsed.
7.8 The alternative is for Erf
3440ntwikkeling (Pty) Ltd to apply for a new site licence. We submit
that if this is indeed the preferred
procedure and if the filling
station is now to stop its retailing activity, it will most certainly
result in a material interruption
in the supply of petroleum
products.
7.9 That will compound the
situation further in that there are currently 32 (thirty two)
employees in the service of Boroka Filling
Station CC as the retailer
on the site. If the retailer is prevented from pursuing this
retailing activity, all these employees
and their families will
certainly suffer severe hardship.
7.10 In light of the
unfortunate oversight referred to above, Streaks Ahead Investments
(Pty) Ltd and Erf 344 Ontwikkeling (Pty)
Ltd request Department of
Energy's guidance on the way forward to rectify the position as far
as the site licence is concerned.
[18]
The applicant launched an application for a temporary interdict in
October 2014 and a review application against the Minister's
dismissal of the appeals was filed on 04 February 2016. Besides
raising the aforesaid contraventions of the PPA in the interdict
application the applicant also makes reference to other non
compliance issues by the respondents. The applicant averred that
the
filling station business was established on a property which had not
been zoned for such a business in terms of the town planning
scheme
of the fifth respondent. This is denied by the respondents who submit
that the attack on the zoning is founded on an incorrect
approach.
The respondents submit that they were entitled to establish a filling
in terms of an endorsement on the first respondent's
deed of grant in
terms of proclamation R293.
[19]
The applicant further attacks the validity of the environmental
authorisation issued in terms of the National Environmental
Management Act of 1998 ("
NEMA
"). The applicant
submits that the authorisation was issued regarding a property
described as "
Portion 1 of Erf 3465
" which does not
exist since it is common cause that Erf 3465 had never been
subdivided. The respondents submit that the phrase
"Portion
1
" was merely used as a description to distinguish the
filling station business area from the other portion on which a
shopping
mall is situated. They submit the phrase was not used in the
sense it is usually used regarding a subdivided property.
[20]
I have considered these matters and I am of the view that whilst they
are relevant and pertinent to the contested issues in
this
application, they do not take the real issue any further in light of
the admissions referred to above. The fact is, with these
admissions
on the table, no doubt can be thrown on the applicant's case, be it
from a factual or a legal basis.
[21]
The respondents admit that they acted contrary to the provision of
the PPA and what needs to be considered and decided is what
impact
that has on the licences. Is the second respondent trading unlawfully
or is the business
"
prima facie
lawfu
l'
as submitted by the respondents? I will return to this matter
(
infra
).
[22]
In her decision regarding the appeals, the Minister instructed the
fourth respondent to take action in terms of regulation
35 read with
regulation 29 (2) of the Act in order to address the contravention of
Section 2 A (4) (b) of the Act. Another process
pending is an appeal
regarding the transfer of the site licence by the fourth respondent
from the first respondent to the sixth
respondent. There are
therefore several procedures pending and it is in the light of those
that the present interdictory relief
is sought.
[23]
Section 2A of the Act expressly provides for the prohibition of
certain activities as follows:
"1)
A person may not -
a) Manufacture petroleum products
without a manufacturing licence;
b) Wholesale prescribed petroleum
products without an applicable wholesale licence;
c) Hold or develop a site without
there being a site licence for that site;
d) Retail prescribed petroleum
products without an applicable retail licence, issued by the
controller of petroleum products."
Evidently,
the aforesaid prohibitions are peremptory as Section 2 B (1)
stipulates that "
the controller of
petroleum products must issue licences in accordance with the
provisions of this Act.”
[24]
Further, Regulation 5 provides that the Controller, before he
accepts an application for a site licence must be satisfied that the
applicant is the owner of the site or has the written permission of
the owner where the site is "
publicly owned'
.
[25]
It is common cause that the first respondent was not the owner of the
site when the licence was granted and that the granting
of a licence
to it was as a result of misrepresentations made to the fourth
respondent.
[26]
It is also pertinent to bear in mind that retailing activities of
petroleum products have been and are still conducted on Erf
3465
without a site licence, since 2014.
[27]
The applicant submits and I accept that competition is unlawful where
a person trades in contravention of an express statutory
prohibition.
See
Silver Crystal (Pty) Ltd v Namibia Diamond
Corporation (Pty) Ltd
1983
(4)
SA 884 (D) 888-889;
Unity Longhauls (Edms) Bpk
v Grindrod Transport (Pty) Ltd
1978 (2) SA
102
(T) 109.
[28]
Everyone, including a rival trader, is entitled to protect him or
herself by approaching a court of law to prohibit loss which
is
caused by performance of an unlawful act of another.
See
Begeman v Cirota
1923 TP (1) 270,
Da Silva v Coutinho
1971 (3) SA
123
(A) 140;
Knop v Johannesburg City Council
1995 (2) SA 1
(A);
Olitzki
Property
Holdings v State Tender Board
[2001] ZASCA 51
;
2001 (8) BCLR
779
(SCA),
2001 (3)
SA
1247
(SCA).
Temporary
Interdict Requirements
[29]
It is trite that an applicant for a temporary interdict has to
satisfy the following requirements:
29.1 a prima facie right;
29.2 a well-grounded apprehension of
irreparable harm, if the interim relief is not granted and the
ultimate relief is eventually
granted;
29.3 that the balance of convenience
favours the granting of an interim interdict;
29.4 that the appellants have no other
satisfactory remedy available to them.
See
Setlogelo v Setlogelo
1914
(1) 221 at 227;
L. F. Boshoff Investments
(Pty) Ltd v Cape Town Municipality
1969 (2)
SA 256
(C) at 267
; Masuku v Minister Van
Justice
1990 (1) SA 837
(A);
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
(CC).
[30]
It is equally trite that due to the discretionary nature in granting
an interim interdict, the requisites enumerated (
supra
)
are not to be weighed in isolation but due weight must be given to
their inter-relatedness.
[31]
A brief discussion of the interim interdict requisites is apposite.
The primary requisite is a
prima facie
right, namely,
prima facie
proof of facts that establish the existence of a right
in terms of substantive law. The degree of proof has been formulated
as follows:
the right can be
prima facie
established even if open to some doubt.
Unlawful
Competition
The
basis of the applicant's claim is that his right to trade lawfully is
subjected to unlawful competition by the respondents in
that the
second respondent obtained a retail licence without being the owner
of that site as provided in the
Petroleum Products Act 120 of 1977
.
"Competition in conflict with a statutory provision is
considered to be unlawful in principle because it disturbs the so
called equality principle of the law of competition: the par
concurrentium
."
See
van Heerden-Neethling,
Unlawful
Competition
,
second
edition p253. The
locus classicus
for the recognition that competition in conflict with a
statutory prohibition is a form of unlawful competition is
Patz
v Greene & Co
1907 TS 427.
In that case
the applicant (appellant), who traded in the vicinity of a mining
compound, applied for an interdict against the respondents
who
carried on a similar business on claim land at the entrance of the
compound. The applicant based his application
inter
alia
on the fact that trading on claim land
was prohibited by statute. The application was dismissed in the court
a quo,
but the
applicant appealed with a measure of success. Solomon J formulated
the following rules:
"Everyone
has a right .... to protect himself by appeal to a court of law
against loss caused to him by the doing of an act
by another, which
is expressly prohibited by law. Where the act is expressly prohibited
in the interests of a particular person,
the court will presume that
he is damnified, but where the prohibition is in the public interest,
then any member of the public
who can prove that he has sustained
damage is entitled to his remedy."
The
proper approach is to consider the facts as set out by the applicants
together with any facts set out by the respondents, which
the
applicants cannot dispute and to decide with regard to the
probabilities and the ultimate onus whether the applicants should
on
those facts obtain final relief at the trial. The facts set up in
contradiction by the respondents should then be considered,
and if
they throw serious doubts on the applicant's case, the applicants
cannot succeed.
See
The Law of South Africa,
volume,
II 2nd Ed, p 420, para 404.
[32]
The second requisite is a reasonable apprehension that the
continuance of the alleged wrong will cause irreparable harm to
the
applicants. The test is objective and the question is whether a
reasonable man confronted by the facts, would apprehend the
probability of harm on a balance of probabilities. Actual harm need
not be subjective.
See
The Law of South Africa
,
volume II, 2nd Ed, p421, para 405
[33]
In the present case applicant has presented evidence that his sales
of petroleum products have deteriorated ever since the
second
respondent commenced its business operations. According to the
evidence tendered by the applicant, the impact on its filling
station
in economic terms was devastating. In January of 2014 the applicant
would sell about 449 223 litres of fuel per month -
until the second
respondent started trading on 22 May 2014. The impact on the
applicant's business can be seen in the monthly deterioration
of
sales that occurred thereafter with the result that by September of
that year the applicant could only sell 225 631 litres of
fuel.
According to the applicant petrol filling stations are expected by
the supplier (Total) to maintain a threshold of about
350 000 litres
per month and in so doing they can benefit through renovations to the
business operations by the supplier. Without
maintenance of the
threshold the business operation is put in jeopardy. The applicant is
currently suffering serious damages which
threaten the continued
existence of his business. Irreparable harm is therefore not just
reasonably apprehended but current and
actual.
[34]
The third requisite is that the balance of convenience must favour
the granting of the order. The court ought to weigh the
prejudice
which the appellants will suffer if an interim interdict is not
granted against the prejudice which the respondents will
suffer if it
is. The exercise of a court's discretion usually resolves itself into
a consideration of the prospects of success
and the balance of
convenience. The stronger the prospects of success, the less the need
for such a balance to favour the applicants.
The weaker the prospects
of success, the greater the need for it to favour the applicants.
In
casu
, the second respondent states that it has about 32 employees
whose families would suffer were they to lose employment. The
applicant
avers on the other hand that its business operations might
have to close down due to the activities of the respondents. Whilst
the parties might appear to be on par in this regard, the applicant
submits that a critical consideration is that the respondent's
business is operating unlawfully in that the second respondent ought
never to have been granted a licence to trade if the correct
procedures were followed and the correct disclosures made when it
presented its application for a licence.
[35]
The fourth and final requisite is that there must be an absence of
another adequate remedy. In this regard, the remedy must
be available
must comply with the following requirements:
35.1 Firstly, the remedy that is
available must be adequate in the circumstances.
National
Chemsearch (SA) (PTY) Ltd v Borrowman
1979 (3) SA 1992
(T).
35.2 The remedy must be ordinary and
reasonable.
33.3 It must be a legal remedy.
35.4 The remedy must grant similar
protection.
See
The
Law of South Africa,
volume, II 2nd Ed, p
423, para 407.
I have duly considered
the factual matrix of this case and it does not appear that the
applicant has available to it any other remedy
than the present
application.
[36]
As stated (supra) the applicant has made a reference to a number of
procedural irregularities in the process of granting a
site licence
to the first and second respondents. Whilst the respondents have
filed an opposing affidavit they have formally admitted
in detail the
veracity of the PPA irregularities referred to by the applicant.
[37]
In
Ladychin Investments v South African National Road Agency
2001 (3) SA 344
(NPD), the applicant applied for interim relief
pending an application to review a decision to allow the construction
of a toll
plaza in the intended position in circumstances where the
appellant alleged
inter alia
that there had not been
compliance with the requirements of the relevant legislation when
they considered the applicant's objections,
and that there had been
no proper consideration given to the applicant's rights when the
decision was made. After consideration
of the applicant's case, and
particularly the statutory principles of the Environmental
Conservation Act 73 of 1989, which had
not been complied with, as
well as the
National Environmental Management Act 107 of 1998
, the
court came to the conclusion that the applicant had established a
clear right of review, alternatively a right open to some
doubt, and
that the balance of convenience favoured the applicant. Interim
relief was granted by way of a temporary interdict prohibiting
the
construction of a toll gate.
[38]
Another decision in which issues similar to the present case were
discussed is that of Thomson v Head of the Department of
Agriculture,
Conservation, Environment and Tourism, North West Province and Others
2008 (1) ALL SA 392
(T), the court was faced with two applications.
In the first application the applicant sought an interdict preventing
the third
and fourth respondents from continuing with the
construction of a petrol filling station on a certain site. In the
second application,
the applicant sought to prevent the same
respondents from conducting business in all petroleum products
pending the outcome of
an application for a licence and from
competing unfairly with the applicant. The court found on the
evidence before it that the
relevant respondents were proceeding with
the construction of the filling station, in conflict with the
conditions imposed thereon.
That rendered the applicant entitled to
the relief sought in the first application. In the second
application, the applicant had
to prove his entitlement to a
permanent interdict, setting out the well-established requirements
for final interdicts. The court
found the applicant to have
established those requirements and the applicant succeeded.
[39]
In casu
I have considered the evidence tendered by the parties
and submissions by counsel. I have considered also the facts alleged
by
the applicant and admitted by the respondents. The admissions
contained in paragraph 7 of the respondent's answering affidavit
support the conclusion that the applicant has established a clear
right of review. In the circumstances the applicant is more likely
to
suffer prejudice than the respondents and I find that the balance of
convenience favours the applicant.
[40]
I have listened to a rather interesting application of the law to the
facts by respondent's counsel Wagener S.C. who has strenuously
argued
against the granting of an interim interdict whilst conceding that
the respondents had indeed acted in contravention of
the PPA. He
submits that the respondents cannot be said to be acting unlawfully
in continuing to conduct their business of a petrol
filling station
in competition with the applicant.
[41]
His contention is that the second and sixth respondents had been
granted retail and site licences by the relevant authorities
even if
they could be categorised as
"wounded'
or "
prima
facie
" licences. On the other hand, counsel for the
applicant Du Plessis S.C. contends that the said licences were
unlawfully issued
having been invalid ab initio. He submitted they
were invalid due to the fact they were granted when the site or
property in question
had already been transferred to the sixth
respondent creating a situation where the licences were granted "
in
vacuo
" hence the invalidity.
[42]
In supporting the argument for
prima facie
validity
respondents' counsel relies on the well-known decision of
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(at para 27) in which the validity of administrative actions were
declared to have legally valid consequences until set aside by
a
court by way of a review application.
[43]
As Howie P et Nugent JA stated the principle:
"[27] The
apparent anomaly (that an unlawful act can produce legally effective
consequences) is sometimes attributed to the
effect of a presumption
that administrative acts are valid, which is explained as follows by
Lawrence Baxter: Administrative Law
at 355:
"there exists an
evidential presumption of validity expressed by the maxim omnia
praesumumtur rite esse acta; and until the
act in question is found
to be unlawful by a court, there is no certainty that it is. Hence it
is sometimes argued that unlawful
administrative acts are "voidable"
because they have to be annulled.""
[44]
The applicant's counsel has sought to distinguish the Oudekraal
decision from the present set off facts in that the applicant
herein
does not seek to set aside the administrative decision by the
Controller and the Minister but to suspend it pending an internal
appeal and/or a review and that this distinction was recognised and
applied by the courts in the following cases:
Van der Westhuizen
and Others v Butler and Others
2009 (6) SA 174
CPD,
Camps Bay
Residents and Ratepayers Association and Others v Augoustides and
Others
2009 (6) SA 190
(WCC),
Ladychin Investments v South
African National Road Agency
2001 (3) SA 344
(NPD),
Transnet
Bpk h/a Coach Express en 'n Ander v Voorsitter, Nasionale
Vervoerkomissie en Andere
1995 (3) SA 844
(T).
[45]
In the Camps Bay matter, the applicants sought to interdict the
further construction on a building which was 95% complete due
to
alleged noncompliance with the relevant zoning scheme regulations.
The court per Dlodlo J at P196 J - 197 G:
"INTERIM
RELIEF FOR CESSATION OF BUILDING WORKS PENDING REVIEW PROCEEDINGS
[10] I am guided by a
series of decision of this division as to the manner in which
applications for the interim cessation of building
works pending
review proceedings are to be addressed. The manner in which the
courts in this division have addressed applications
for the interim
cessation of building works pending review proceedings is well
established. It has been laid down in a long series
of decisions.
Convenient examples include
Beck and
Others v Premier of the Western Cape
(CPD
case 12596/06, 11 October 1996, unreported, per Conradie J);
Camps
Bay Residents and Ratepayers Association and Another v Avadon
23 (Pty) Ltd and Another (CPD case No 17364/05, 18
March 2005, unreported, per Foxcroft J);
PS
Booksellers (Pty) Ltd and Another v Harrison and Others
2008 (3) SA 633
(C) ([2007]
3 All SA 552)
;
Van
der Westhuizen v Butler
2009 (6) SA
175
(C); and Searle
v Mossel Bay
Municipality and Others
(CPD case No
1237/09, 12 February 2009, unreported, per Binns-Ward AJ
).
What appears from this
line of decisions is the following:
1. The prospects of success in the
contemplated review proceedings represent the measure of the strength
or otherwise of the alleged
right that the applicant must establish
prima facie in order to obtain interim relief See:
Searle
supra in para 6;
Lady Chin Investments (Pty) Ltd
v South African National Roads Agency Ltd and Others
2001
(3) SA 344
(N);
Transnet Bpk h/a Coach Express en 'n Ander
v Voorsitter, Nasionale Vervoerkommissie, en Andere
1995
(3) SA 844
(T).
2. The stronger the prospects of
success in the review proceedings (ie the prima facie right) the
greater the subordination of prejudice
occasioned by a cessation of
the building work. Otherwise stated, the principle of legality tends
to operate decisively in this
context.
3. As Conradie J noted in Beck's
case supra, if applicants are likely to be proved right in the review
proceedings, 'it is desirable
that the building operations should be
stopped now, that is to say, sooner rather than later'.
4. Important purposes and functions
of granting interim relief in this context are that a respondent
'does not build himself into
an impregnable position by the time the
review comes to be heard' and, secondly, to prevent the bias
exercised by a completed (but
unlawful) structure towards the
favourable determination of a regularisation application so as to
'permit a result that would not
have been permitted if the factor of
a fait accompli had not been present'. See: Sear/e's case supra para
[11]."
[46]
Given the admitted irregularities which were committed by the
respondents which were put forth as the basis for the applicant's
case I am satisfied that the prospects of success in the contemplated
review proceedings do represent the measure of strength of
the right
that the applicant had to establish
prima facie
. I am also
satisfied that the principles set out in the Camps Bay decision are
applicable in the present application.
[47]
The Camps Bay case and the other cases referred to (supra) can
accordingly be distinguished from the principles established
in the
Oudekraal decision regarding administrative decisions.
The
Doctrine of Separation of Powers
[48]
The respondent's counsel submits that this court ought not to grant
the interim interdict as granting it would contravene the
doctrine of
separation of powers.
[49]
In support of that submission he made reference to the following
cases:
Helen
Suzman Foundation and Another v Minister of Police and Others
,
case number 23199/06 NGHC (an unreported decision para 12-13
),
National Treasury and Others v Opposition Tolling Alliance and Four
Others
[2012] (6) SA 223
(CC) para 43-44.
[50]
In the National Treasury matter Moseneke DCJ expressed the law in
this regard as follows:
"[43] A little
less than 40 years before the advent of our constitution, in Goo/, a
full bench of the Cape
Provincial Division was called upon to grant an interdict restraining
the Minister pendente lite from exercising
certain powers vested in
him by a statute. Ogilvie Thomson J, writing for a
unanimous Court,
considered the requirements for an interim restraining order
announced in Setlogelo and said the following:
"The
present is however not an ordinary application for an interdict. In
the first place, we are in the present case concerned
with an
application for an interdict restraining the exercise of statutory
powers. In the absence of any allegation of ma/a tides,
the court
does not readily grant such an interdict
."
And later the learned
Judge observed:
"The
various considerations which I have mentioned lead, in my opinion,
irresistibly to the conclusion that the court should
only grant in
interdict such as that sought by the applicant in the present
instance upon a strong case being made out of that
relief. I have
already held that the court has jurisdiction to entertain an
application such as the present, but in my judgment
that jurisdiction
will, for the reasons I have indicated, only be exercised in
exceptional circumstances and when a strong case
is made out for the
relief."
[44] The common law
annotation to the Setlogelo test is that courts grant temporary
restraining orders against the exercise of statutory
power only in
exceptional cases and when a strong case for that relief has been
made out. Beyond the common law, separation of
powers is an even more
vital tenet of our constitutional democracy. This means that the
Constitution requires courts to ensure
that all branches of
government act within the law. However, courts in tum must refrain
from entering the exclusive terrain of
the executive and the
legislative branches of government unless the intrusion is mandated
by the Constitution itself"
[51]
It is trite law that the requirements for the granting of an interim
interdict which were formulated in
Setlogelo v Setlogelo
1914
AD 221
and refined in
Webster v Mitchell
1948 (1) SA 1186
(WLD) were designed for and ideally suited for interdicts between
private parties.
[52]
It is common cause that the present application is essentially
between private parties, namely the applicant, the first, second
and
sixth respondents. The applicant cannot therefore be said to seek to
trespass in the exclusive domain of the Executive or the
Legislature.
On this basis therefore, the submission by counsel for the
respondents is not sustainable.
Delay
in Launching the Application
[53]
The applicant's counsel addressed this court at length regarding the
timeline regarding steps taken by the applicant from the
time it
became aware of the respondent's application for a retail and site
licence. Briefly stated, it is the applicant's case
that it was not
in possession of the relevant information with regards to the
applications, their compliance with the zoning requirements
of the
Town Planning Scheme and the National Environmental Management Act
(NEMA) (
supra
). The applicant had to collect and collate the
said information in order to bring the present application to court.
[54]
The respondent's counsel submits that the application was not brought
with reasonable expedition and that the review application
was
brought outside the 180 days period which is disputed by the
applicant.
[55]
In the Van der Westhuizen case (
supra
) the applicants launched
an application for the review of the local authority's decision to
approve the respondent's building plans
in terms of Section 7 of the
National building Regulations and Building Standards Act 103 of 1977
(the Building Act). Pending determination
of the review proceedings
and determination of a possible future application for the demolition
of the building on the respondent's
property, the applicants brought
an urgent application to interdict the respondents from proceeding
with any further construction
and from selling or alienating the
property. The respondents resisted the application on the basis of
urgency and that the applicants
had no
prima facie
right since
they would not succeed in the review application due to failure to
bring it within 180 days in terms of Section 7(1)
of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA).
[56]
The court held per Davis J with regard to urgency, that the 180 days
limitation under PAJA was not directly applicable to the
question of
urgency in respect of an application for interim relief. The
applicants had furthermore explained their delay in launching
the
application, which explanation was plausible.
[57]
Even in the present case, the applicant has put sufficient facts
before the court to indicate that any delay was not unreasonable
in
the circumstances especially considering the fact that the facts were
fairly complex and the applicant had to do research into
the many
issues of fact and law in regard thereto. There was also the need to
employ other experts in the field such as town planners
and to retain
the services of experienced and able counsel who are without doubt
extremely busy.
See
Radio Islam v Chairperson, Council of the
Independent Broadcasting Authority
1999 (3)
SA 897
(w) at p 908 and p 910.
[58]
Further, I find that it cannot be disputed that the applicant is
currently being prejudiced by the respondent's trading activities.
I
further accept that the first, second and sixth respondents have
brought about their current situation by committing acts which
they
knew or ought to have known are unlawful.
[59]
I also find that the requirements for the granting of an interim
interdict have been satisfied and that there are good prospects
of
success in the review application.
[60]
In the result the draft order handed in is made an order of court as
follows:
ORDER:
Having
heard counsel for both parties, the following order is granted in
terms of Part A of the Notice of Motion
60.1 That a temporary interdict be
granted in favour of the applicant against the first, second and
sixth respondents in the following
terms:
60.1.1 The first, second and sixth
respondents are prohibited from taking any further steps regarding
the construction of a filling
station on Erf 3465, extent 3.742ha
situated in Township Namakgale B, district of Namakgale held by the
sixth respondent under
TG12564/2013; and
60.1.2 The first, second and sixth
respondents are prohibited from any trading activities and/or retail
activities of petroleum
products of any nature whatsoever on Erf
3465, extent 3.3742ha situated in Township Namakgale B district of
Namakgale, held by
the sixth respondent under TG12564.2013.
60.2 The abovementioned temporary
interdict shall be valid and binding on all parties to this
application pending:
60.2.1 the applicant's review
application against the decision of the third respondent on appeal to
grant a site licence on Erf
3465 Namakgale B Township under licence
application F/2013/02/05/0001, in respect of first respondent and a
new retail licence
under application F/2013/02/05/0002;
60.2.2 the applicant's internal appeal
that has been lodged with the fourth respondent pertaining to the
transfer of the site licence
in respect of Erf 3465 Namakgale B
Township, from the first respondent to the sixth respondent;
60.2.3 any review application that may
follow from the decision of the fourth respondent pertaining to the
applicant's internal
appeal filed as referred to in paragraph 60.2.2
above;
60.2.4. final relief in terms of Part
B of this application.
60.3 Costs of Part A of this
application, including the costs of three counsels
_____________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
on:
31
October 2016- 02 November 2016
Delivered
on:
24
November 2016
For
the Applicant:
Advocate
R. Du Plessis S.C.
Instructed
by:
A.Kock
& Associates Inc
For
the 1
st
,
2
nd
and
6
th
Respondents:
A
dvocate
S. Wagener S.C.
Instructed
by:
Gerhard
Wagenaar Attorneys