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[2015] ZAGPPHC 462
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Golden Falls Trading 116 (Pty) Ltd v Minister of Energy National Government and Others (27743/2015) [2015] ZAGPPHC 462 (5 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NUMBER: 27743/2015
I
n 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 BP
THIRD
RESPONDENT
SOURTHEN
AFRICA (PTY) LTD
FOURTH
RESPONDENT
SONITA
PETROLEUM (PTY)
LTD
FIFTH RESPONDENT
JUDGMENT
MAVUNDLA
J;
[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 [............], Kungwini, also known as Erf [….] of the
Remainder of Portion [….] of the [……....]
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 May 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 May 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 11May 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 applicant
ADV M M RIP SC
Instructed
by
A KOCK & ASSOCIATES INC
For
the respondents
ADV A R BHANA SC / ADV J MITCHELL (4TH 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]
1
992
(3) SA 500
at 502E-503
D.