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[2015] ZAGPPHC 365
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Golden Falls Trading 116 (Pty) Ltd v Minister of Energy National Government and Others (27743/2015) [2015] ZAGPPHC 365 (5 June 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 27743/2015
DATE:
05 JUNE 2015
In
the matter between:
GOLDEN
FALLS TRADING 116 (PTY)
LTD
................................................................
APPLICANT
And
THE
MINISTER OF ENERGY NATIONAL GOVERNMENT
...................
FIRST
RESPONDENT
CONTROLLINER
OF PETROLEUM PRODUCTS
................................
SECOND
RESPONDENT
MJW
ONTWIKKELINGS (PTY)
LTD
.........................................................
THIRD
RESPONDENT
BP
SOURTHEN AFRICA (PTY)
LTD
........................................................
FOURTH
RESPONDENT
SONITA
PETROLEUM (PTY)
LTD
...............................................................
FIFTH
RESPONDENT
JUDGMENT
MAVUNDLAJ;
[1]
The applicant applied for condonation
for noncompliance with Uniform Court Rules, in terms of rule 6(12)
and that an interim interdict
that the third, fourth and fifth
respondents be prohibited with immediate effect from continuing to
construct a filling station
at Erf 678 Willow Acres Ext 13, Kungwini,
also known as Erf 3 of the Remainder of Portion 12 of the Farm
Zwartkoppies 364 JR ("the
property'') or to conduct the
retailing of petroleum products from such premises; with ancillary
reliefs be issued pending finalisation
of Part B of this application.
The application was opposed by fourth and fifth respondents.
[2]
Although the application was set down on
the urgent roll of the 19 May 2015, it only got the attention of this
Court on the 21 May
2015, when it was struck from the urgent roll for
lack of urgency, with punitive costs order on attorney and client
scale, which
costs to include the costs of two counsel where
applicable and costs of senior counsel, where one counsel was
employed. The reasons
were not given at the time but are chronicled
herein below.
[3]
The
Court has a discretion to condone noncompliance with Uniform Court
Rules. However, such indulgence is not there for a take.
It is trite
that an applicant in an urgent application may depart from abiding
with and abridge the prescribed form and time frames
prescribed in
rule 6(5).
[1]
The applicant in an urgent application must set forth explicitly the
circumstances which he avers render the matter urgent and
the reasons
why he claims that he could not be afforded a substantial redress at
a hearing in due course.
[2]
[4]
The
question of abridging the prescribed time frames in Rule 6(5), is
dictated upon by the exigency and circumstances of the particular
case. The Courts have warned that an applicant who believes that the
matter is urgent, must truncate the period afforded to the
other
party, mindful of and proportionate to the degree of urgency. Not
every matter is urgent and therefore a kneejerk approach
in
truncating the period will not be tolerated;
vide
Gallagher v Norman's Transport Lines (Pty) Ltd.
[3]
[5]
The application was served on the
respondents on the 8 IVlay 2015 and set down on the urgent roll on
Tuesday, 19 May 2015. The respondents
were invited to file their
notice of intention to oppose the application on or before 12h00 on
Tuesday, 12 Msy 2015, and to file
their opposing affidavits on or
before 12h00 on Wednesday 13 May 2015, where after the applicant was
to file its replying affidavit
on Thursday, 14 May 2015. According to
the fourth respondent the applicant's papers only reached its in-
house legal division on
Monday 11 May 2015, thus affording it
virtually 3 days to file its opposing affidavit in a complex and
voluminous matter.
[6]
The application was prolix, consisting
of at least 632 pages, before the filing of the opposing affidavits
and replying affidavit.
After all set and done, there were 12 volumes
consisting of 894 pages, contrary to the practice directive that in
an urgent application
papers must be limited to 500 pages, otherwise
the matter must be set before a special court, which was not the case
in
casu.
The day on which the papers
were served on the respondents fell on a Friday, therefore excluding
the weekend, the respondents had
one day and few hours to consider
the voluminous papers and take a decision to file a notice to oppose
on Tuesday the 12 May. They
then had to file their opposing affidavit
on Wednesday 13 May at 12h00, giving them virtually one day. In my
view the circumstances
in
casu
, assuming that the matter
was urgent, which was not, did not warrant such an abridgment of time
frames to a bare minimal hours
to comply with the time frames decided
by the applicant. The conduct of the applicant was, in my view, "the
illogical knee-jerk
reaction" referred to in the Gallagher v
Norman's Transport Lines (Pty) Ltd matter, and unreasonable such as
to demand the
Court's displeasure expressed in the form of a punitive
costs order against the applicant, as was granted.
[7]
In arriving at the conclusion that the
matter was not urgent, let alone being extremely urgent, I took into
account the following
factors. The applicant's interim relief sought
was to halt further construction of a filling station by the fourth
respondent,
and the "selling" of petroleum products from
such premises by the fifth respondent. Whatever harm the applicant
was afraid
of, which could have had negative impact on his business,
was in my view, of a commercial nature. That envisaged harm, in my
view,
could hardly be said to lie in the construction of the building
per se,
but the functionality after the completion of the building when the
petrol station could be operational. On a more practical level,
until
such time the building could be operational, then there is no danger
of harm eventuating. This, in my view, determines the
existence or
nonexistence of urgency and the degree thereof in
casu.
[8]
It is common cause that the applicant
has an Engine filling station situated at Silver Lakes Convenient
Centre on the corner of
Lynnwood Road and Hans Strydom Drive (now
renamed Solomon Mahlangu Drive), Silver Lakes, and Pretoria. MJW
"third respondent's"
site which is the subject of this
matter is situated a 3 kilometre radius from the applicant's site,
namely 1.8 kilometres.
[9]
It is common cause that the third
respondent lodged a new licence application in respect its aforesaid
site, and a corresponding
retail licence application during 2009 in
terms of
Petroleum
Products Act,
Nr 120 of 1977,
which licences were granted. The applicant,
inter
alia,
lodged an appeal against
the grant of the said licences to the third applicant. The appeals
were lodged on the 3 January 2011.The
decisions on the appeal were
not made until 12 April 2015.
[10]
The fourth respondent in the meantime
bought the aforesaid site from the third respondent on 13 May 2013.
The site was registered
in the name of the fourth respondent on 19
September 2013, which in turn applied for a transfer of site licence
from the third
respondent into its own name. The fifth respondent
applied for a retail licence to retail petroleum products from the
aforesaid
site. The licences were granted and the applicant and
others lodged an appeal against the grant of these licences.
[11]
The applicant in its papers stated,
inter
alia,
that "the third and
fourth respondents discontinued construction activities on the
relevant property during December 2014,
after having been instructed
to do so by the Controller." It can be safely accepted that the
construction must have commenced
much earlier than December 2014. If
the applicant was aware of the fact that the site was registered in
September2013, it must
also have been aware that the construction
started much earlier, and I find that it did, and the applicant
conveniently refrained
to take the court into its confidence in this
regard to disclose when it became aware for the first time thereof.
Surely,
if the perceived harm the applicant was trying to avert lied in the
construction
per se,
then
there is no reason why the applicant did not bring this application
much earlier than December 2014, even so, much earlier
than the 8 May
2014. It certainly could have brought this application to stop the
construction and or retailing of any petroleum
product, pending the
outcome of the determination of its appeal and or review against any
adverse decision regarding the appeal
much earlier than it did.
[12]
It is also common cause that on the 5
December 2014 the applicant sought an undertaking within three
working days from the fourth
respondent that it would discontinue or
not re-commence with the construction on the site. It would seem that
three days went by
without any undertaking, yet the applicant decided
not to actuate its threat. The applicant decided, however, to still
seek clarity
on the 18 December 2014, although it observed that
clearance of the site has commenced. If, indeed urgency lied in the
construction,
in my view, once the undertaking was not forthcoming;
there was no need to wait for any further clarification before
bringing this
application, and by so doing lost urgency.
[13]
In my view, any other subsequent
perceived urgency could not stand in the light of the pre-existent
urgency and loss thereof discussed
herein above. In my view, the
above limited aspects are dispositive of the aspect of the alleged
urgency and the degree thereof.
[14]
I therefore hand down the reasons for
the order granted on 21 May 2015.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the applicantADV M M RIP SC
Instructed
byA KOCK & ASSOCIATES INC
For
the respondentsADV A R BHANA SC / ADV J MITCHELL (4™
RESPONDENT) Instructed by NORTONS INCORPORATED Date of hearing 21
MAY
2015
Date
of Judgment 05 JUNE 2015
[1]
This rule prescribes 5 days after services of the application for
filing of notice of intention to oppose and
thereafter
fifteen days to file opposing affidavit.
[2]
Rule 6(12)(b) is peremptory.
[3]
1992
(3) SA 500
at 502E-503 D.