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[2014] ZAGPPHC 257
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Business Zone 1010 CC t/a Emmarentia Convenience Centre v Controller of Petroleum Products and Others (7282/2013) [2014] ZAGPPHC 257; [2014] 3 All SA 94 (GP) (9 May 2014)
IN THE
HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE NO:
7282/2013
DATE:
9/5/2014
REPORTABLE
IN THE MATTER BETWEEN
THE BUSINESS ZONE 1010 CC
t/a EMMARENTIA CONVENIENCE
CENTRE
.............................................................
APPLICANT
AND
THE CONTROLLER OF PETROLEUM
PRODUCTS
........................................
1
ST
RESPONDENT
THE MINISTER OF MINERALS
AND ENERGY
.............................................
2
ND
RESPONDENT
ENGEN PETROLEUM
LIMITED
......................................................................
3
RD
RESPONDENT
JUDGMENT
PRINSLOO, J
[1] This is an application
to review and set aside a decision of the first respondent ("the
Controller") on 27 February
2012 in terms of which he refused a
request by the applicant to refer an alleged unfair or unreasonable
contractual practice by
the third respondent ("Engen") to
arbitration in terms of the provisions of section 12B of the
Petroleum Products Act,
Act no 120 of 1977 ("the Act").
[2] The applicant also
applies to review and set aside a subsequent decision by the second
respondent ("the Minister"),
on 6 November 2012, in which
she confirmed the Controller's decision.
[3] The applicant also
applies, if successful with the review applications, for this court
to refer the matter to arbitration in
terms of the aforesaid
legislation alternatively for the matter to be referred back to the
Controller for reconsideration.
[4] Before me, Mr Suttner
SC, with Mr Redman, appeared for the applicant.
Mr
Marcus SC, with Mr Thompson SC appeared for Engen.
There
was no appearance for the Controller and the Minister, who appeared
to abide the decision of the court.
Background
[5] It is common cause that
the applicant is a licensed retailer and Engen a licensed wholesaler
of petroleum products as defined
in the Act.
[6] It is also common cause
that the applicant and Engen had concluded various agreements in
terms whereof the applicant operated
an Engen filling station,
Quick shop and Woolworths store from the Engen premises situated
at the corner of Tana Road and
Barry Hertzog Avenue, Emmarentia,
Johannesburg. The property is also known as Erf1117, Emmarentia
Extension 1 Township and Engen
is the registered owner thereof ("the
premises").
[7] In 2005 the applicant
and Engen entered into a lease agreement in respect of the premises
("the first lease") and
in 2008, the parties concluded a
further agreement entitled "Agreement Of Lease And Operation Of
Service Station" ("the
agreement") which commenced on
1April 2008 and was due to expire on 31March 2015.
[8] Over a period of time
various disputes arose between the parties.
[9] On 22 0ctober 2010
Engen's attorneys addressed a letter to the applicant purporting to
cancel the agreement.
[10] The applicant disputed
Engen's right to cancel the agreement and remained in occupation of
the premises. Engen continued to
supply the applicant with petroleum
products up to 24March 2011.
[11] During March 2011
Engen terminated the supply of petroleum products to the applicant
and threatened to terminate the supply
of Woolworths products as
well.
[12] 0n 1 April 2011, the
applicant brought, and was granted, on an urgent basis, certain
interdictory and interim relief against
Engen ("the urgent
application").
The
order granted reads as follows:
"1.
Pending the determination of part B of this application
1.1
the respondent (Engen) be directed to continue to supply the
applicant with petroleum products in accordance with its standard
terms and conditions of sale and in accordance with the previous
practice between the parties;
1.2
that the respondent be interdicted and restrained from preventing
delivery of product by Woolworths (Pty) Ltd to the applicant's
business."
This interim relief,
granted pending the outcome of the partB relief, is still in force
because the outcome of the part B relief
has not yet been decided.
The part B relief was
formulated as follows in the notice of motion in the urgent
application:
"1.
The respondent be directed to continue to supply the applicant with
pretroleum products in accordance with its standard
terms and
conditions of sale and in accordance with the previous practice
between the parties:
1.1
pending the consideration by the Controller of Petroleum Products of
the applicant's request in terms of section 12B of the
Petroleum
Products Act, 120 of 1977 ('the Act'), and
1.2
pending finalisation of any arbitration proceedings in terms of
section 12B of the Act in the event of the Controller of Petroleum
Products referring the matter to arbitration."
[13] This relief is still
in place, the applicant is still in occupation of the premises and
Engen is still supplying the applicant
with petroleum products.
[14] This state of affairs
has now been prevailing for more than three years.
The pending proceedings in
the South Gauteng High Court were also extended in the sense that
Engen filed a counter-application for
the eviction of the applicant
from the premises on the ground of the alleged cancellation of the
agreement. All this is pending.
[15] What is also pending,
and worth mentioning, is that the applicant, as long ago as on 17
June 2009, also made a request to the
Controller in terms of section
12B, to refer certain other unfair and unreasonable contractual
practices to an arbitrator. This
request was granted, and the
arbitration is still pending before eminent Johannesburg senior
counsel.
For present purposes, the
progress and destiny of this first request for arbitration, and the
arbitration itself, are not of direct
relevance. What forms the
subject of this case, is the second request for arbitration ("the
12B request" or "the
12B application") which was
lodged with the Controller on 4 April 2011, a few days after the
urgent relief was granted.
[16] Some six months after
the applicant submitted the 12B request to the Controller, Engen
delivered an objection thereto running
into some 1644 pages. The
record of this application comprises some 4000 pages, some 1400 of
which are duplications.
The 12B
request, the decisions of the Controller and the Minister, now under
review, and some remarks about the Act
[17] The Act,
inter
alia
, governs the relationship between petroleum wholesalers
(like Engen) and retailers (like the applicant). The terms "retail"
and "wholesale" are also defined in the Act.
Part
of the long title of the Act reads as follows:
"...
to provide for the licensing of persons involved in the manufacturing
and sale of certain petroleum products;
to promote the
transformation of the South African petroleum and liquid fuels
industry
; to provide for the promulgation of regulations relating
to such licences; and to provide for matters incidental thereto."
(Emphasis added.)
[18] In section 3 of the
Act, provision is made for the Minister to appoint a Controller of
Petroleum Products ("the Controller")
which may be any
person in the public service and there is also provision for the
appointment of regional controllers and/or inspectors.
[19] Section 12B of the Act
("12B") reads as follows:
"
Arbitration
.
–
(1)
The Controller of Petroleum Products may on request by a licenced
retailer alleging an unfair or unreasonable contractual practice
by a
licenced wholesaler, or
vice versa
, require, by notice in
writing to the parties concerned, that the parties submit the matter
to arbitration.
(2)
An arbitration contemplated in subsection (1) shall be heard -
(a)
by an arbitrator chosen by the parties concerned; and
(b)
in accordance with the rules agreed between the parties.
(3)
If the parties fail to reach an agreement regarding the arbitrator,
or the applicable rules, within 14 days of receipt of the
notice
contemplated in subsection (1) -
(a)
the Controller of Petroleum Products must upon notification of such
failure, appoint a suitable person to act as arbitrator;
and
(b)
the arbitrator must determine the applicable rules.
(4)
An arbitrator contemplated in subsection (2) or (3) –
(a)
shall determine whether the alleged contractual practices concerned
are unfair or unreasonable and, if so, shall make such award
as he or
she deems necessary to correct such practice; and
(b)
shall determine whether the allegations giving rise to the
arbitration were frivolous or capricious and, if so, shall make such
award as he or she deems necessary to compensate any party affected
by such allegations.
(5)
Any award made by an arbitrator contemplated in this section shall be
final and binding upon the parties concerned and may,
at the
arbitrator's discretion, include an order as to costs to be borne by
one or more of the parties concerned."
[20] Section 12A ("12A")
reads as follows:
"
Appeal
.
–
(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 therefore,
within the
period specified in the regulations."
[21] Section 12C ("12C")
provides for appropriate regulations to be published by the Minister.
[22] 12A, 12B and 12C were
inserted into the Act in terms of section 13 of the Petroleum
Products Amendment Act no 58 of 2003 ("the
Amendment Act")
which came into effect on 17March 2006.
[23] The long title of the
Amendment Act reads as follows:
"To
amend the Petroleum Products Act so as to define certain expressions
and to substitute or delete certain definitions; to
provide for the
licensing of persons involved in the manufacturing or sale of
petroleum products;
to promote the transformation of the South
African petroleum and liquid fuels industry
; to prohibit certain
actions relating to petroleum products; to amend, substitute or
repeal obsolete provisions;
to provide for appeals and
arbitrations
; to authorise the Minister of Minerals and Energy to
make specific regulations; to substitute the long title; and to
provide for
matters connected therewith." (Emphasis added.)
[24] The Amendment Act also
introduced, as schedule 1 to the Act, the Charter for the South
African Petroleum and Liquid Fuels Industry
on Empowering
Historically Disadvantaged South Africans in the Petroleum and Liquid
Fuels Industry ("theCharter").
[25] Part of the preamble
of the Charter reads as follows:
"Mindful
of –
•
the imperatives of redressing historical, social and
economic inequalities as stated by the Constitution of the Republic
of South
Africa,
inter alia
section 9 on Equality (and unfair
discrimination) in the Bill of Rights, and section 217.2 on
procurement where the 'organs of
state' may implement a 'procurement
policy providing for categories of preference in the allocation of
contracts and the protection
or advancement of persons, or categories
of persons, disadvantaged by unfair discrimination';
•
the policy objective stated in the Energy Policy White
Paper to achieve 'sustainable presence, ownership or control by
historically
disadvantaged' South Africans of a quarter of all facets
of the liquid fuels industry, or plans to achieve this;
•
the Black Economic Empowerment Commission's definition
of empowerment as 'an integrated strategy aimed at substantially
increasing
black participation at all levels of the population'; and
noting
•
the enactment of the Preferential Procurement Framework
Act (no5 of 2000) (
my note
: and some other Acts as well) ...
The
signatories have developed this Charter to provide a framework for
progressing the empowerment of historically disadvantaged
South
Africans in the liquid fuels industry."
[26] The Charter is a
lengthy affair under various headings including "support of
culture", "capacity building",
"employment
equity", "private sector procurement" and so on. Under
the heading "retailing/wholesaling"
the following is said:
"the parties agree to create fair opportunity for entry to the
retail network and commercial sectors
by HDSA companies",
meaning companies owned or controlled by historically disadvantaged
South Africans.
[27] Engen is also listed
in the Charter as one of the companies that have participated in the
BEE process.
[28] Section 2C of the Act
(also inserted by the Amendment Act) reads as follows:
"
Transformation
of South African petroleum and liquid fuels industry
. –
(1)
In considering licence applications in terms of this Act the
Controller of Petroleum Products shall-
(a)
promote the advancement of historically disadvantaged South Africans;
and
(b)
give effect to the Charter.
(2)
The Controller of Petroleum Products may require any category of
licence holder to furnish information, as prescribed, in respect
of
the implementation of the Charter."
[29] "Charter" is
defined as the "Charter in schedule 1".
[30] Where counsel for the
applicant refer, in their heads of argument, to the Charter and
related provisions,
supra
, in support of their submissions as
to how 12B should be interpreted, I assume that the applicant is a
so-called "HDSA company".
It is represented by business man
Avishkar Harillal Dukhi and describes itself as "alicensed
activity, as defined in section
2D of the Act which has been
allocated a retail licence ..."
Section 2D follows on
section 2C, which I have quoted, and precedes section 2E which
foreshadows a system for the allocation of
licences which must be
based,
inter alia
, on the objective referred to in section 2C.
[31] In the 12B request,
the applicant alleged unfair or unreasonable contractual practices,
in the spirit of 12B, in addition to
those alleged for purposes of
the first request for arbitration which, as I have said was granted
and which arbitration is presently
pending.
Broadly speaking, these
alleged unfair or unreasonable contractual practices can be
summarised as follows:
•
Claim A
Engen's
persistent failure to provide the site with additional access points
despite a written agreement to do so.
•
Claim
B
Engen's
failure to provide the applicant with consent to effect the necessary
improvements to the property, Engen's purported termination
of the
agreement based on spurious and trivial grounds and Engen's practice
of serving notices of termination and cancelling agreements
with
retailers as a means of dissuading retailers from raising disputes
with Engen. It is the applicant's case that the improvements
were
required to legalise the premises which would otherwise have been
unlawful.
•
Claim
C
Engen's
conduct in negotiating, alternatively concluding, a lease agreement
with a tenant in respect of the selfsame property occupied
by the
applicant and contrary to the provisions of the agreement between the
applicant and Engen.
[32] Of course, as I
mentioned, Engen, six months later, opposed the request in no
uncertain terms, and over some 1644 pages. It
is not practical, or
necessary, to deal fully with the opposition to the 12B request, but,
in essence, the main thrust of Engen's
argument is that it had
purported to cancel the agreement (the cancellation is challenged in
the pending case before the South
Gauteng court) so that an
arbitrator appointed under 12B would not have the necessary
jurisdiction to arbitrate an alleged unfair
and unreasonable
contractual practice. Engen contended that it was a jurisdictional
requirement for a matter to be referred to
arbitration under 12B that
an "undisputed" contract existed between the parties. 12B
does not expressly require the existence
of such a contract.
Engen also argued that
because it had brought a counter-application for the eviction of the
applicant (some 3½ months after
the 12B request was filed) the
matter was "subjudice" and should accordingly not be
referred to arbitration under 12B.
[33] In turning down the
12B request, and clearly preferring the arguments presented by Engen,
the controller wrote the following
letter, dated 27 February 2012, to
the applicant's attorney:
"Dear Mr Naidoo
re
Request for arbitration in terms of section 12B of the Petroleum
Products Act, 1977 (Act no 120 of 1977) as amended: The Business
Zone
1010 CC t/a Emmarentia Convenience Centre versus Engen Petroleum
Limited
I
refer to your request for arbitration in terms of
section 12B
of the
Petroleum Products Act
...
I
have been advised of the matter between the above parties and after
careful consideration of the request for arbitration, our
position on
the matter is as follows: section 12B of the Act states thus –
'The
Controller of Petroleum Products may on request by a licensed
retailer alleging unfair or unreasonable contractual practise
(
sic
)
by a licensed wholesaler, or
vice versa
, require, by notice in
writing to the parties concerned, that the parties submit the matter
to arbitration.'
Before
a matter can be referred to arbitration, the Controller of Petroleum
Products (hereinafter referred to as 'the Controller')
must be
satisfied that the reason(s) for the request is as a result of the
alleged unfair or unreasonable contractual practice
by a licensed
retailer or wholesaler in the performance of an existing valid
contractual agreement in an ongoing business relationship.
The
information we have before us is that there is no longer a valid
agreement between Emmarentia and Engen. The agreement forming
the
basis of Emmarentia's allegations of unfair or unreasonable
contractual practice have been cancelled. Further, Emmarentia's
allegations of unfair or unreasonable contractual practice are
centered around the agreements which are currently under
consideration
by the South Gauteng High Court and as such, the matter
is therefore sub-judice and can no longer be considered for
arbitration.
In
light of the aforegoing, it is our considered view that in the
absence of an existing valid Agreement of Lease and Operation
of
Service Station, Emmarentia's request for arbitration does not
satisfy the minimum requirements in terms of section 12B of the
Act.
As such, the Controller has no basis for referring this matter to
arbitration because of the requirements in the regulatory
framework.
In
the spirit of facilitating a speedy resolution to the dispute we urge
parties to allow the South Gauteng High Court to give a
determination
on the validity of the agreements before the matter can be taken
further.
We
also encourage parties to use other dispute resolution forums which
dispose of disputes promptly as opposed to protracted court
proceedings.
It
will be in the best interest of all parties concerned if the matter
is resolved promptly and amicably.
Yours
sincerely
Mr
T Maqubela
Controller
of Petroleum Products"
[34] In terms of 12A, the
applicant took the Controller's decision on appeal to the Minister.
The appeal was also opposed. In a
letter dated 6 November 2012 the
Minister wrote the following letter to the applicant's attorney, Mr
Naidoo:
"Dear Sir
Appeal
to the Minister in terms of section 12A(1) of the Petroleum Products
Act, 1977 (Act no 120 of 1977) as amended and hereinafter
referred to
as the 'Act') by Business Zone 1010 CC
Licensed wholesaler: Engen Petroleum Limited
1.
I have, in terms of the provisions of section 12A of the Petroleum
Products Act, 1977 (hereinafter referred to as the 'Act'),
considered
the appeal lodged on behalf of your client, The Business Zone 1010 CC
t/a Emmarentia Convenience Centre, against the
decision of the
Controller of Petroleum Products to refuse your request for the
referral of the matter to arbitration in terms
of section 12B of the
Act.
2.
After careful consideration of all the facts and arguments presented
before me, I hereby confirm the decision made by the Controller
of
Petroleum Products refusing the submission of the matter to
arbitration in terms of section 12B of the Act.
3.
The reason for my aforementioned decision is that, in my opinion,
section 12B of the Act may only be applied in cases where there
is an
existing or continuing contract between the parties. Since the
validity of the termination of the contract by Engen Petroleum
Limited is disputed by your client, and the matter is currently
before a competent court, we believe that the arbitration under
section 12B of the Act would not be proper. I am advised further that
a single juristic act (the exercise of a legal right to cancel
a
contract) intended to terminate an agreement cannot, in law,
constitute or be characterised as 'an unfair or unreasonable
contractual
practice' for purposes of section 12B of the Act.
Therefore, an arbitrator would not have jurisdiction to determine the
validity
or otherwise of the cancellation of the agreement.
4.
I am also mindful of the fact that the Controller's powers to refer a
matter to arbitration in terms of section 12B of the Act
is a
discretionary power and I believe that, having considered the
circumstances and arguments submitted by both parties, the decision
of the Controller of Petroleum Products to refuse to submit the
matter to arbitration was justified in the circumstances.
Yours
faithfully
Ms
Dipuo Peters, MP
Minister:
Energy"
0verview
of Engen's argument
[35] Before the
commencement of the proceedings, I was informed that counsel for
Engen would be presenting three arguments, described
by counsel as
"insuperable obstacles" to the relief sought by the
applicant, and that all counsel were agreed that it
would be
appropriate for counsel for Engen to start with their submissions.
Although the arguments (with the exception of the first
one) were not
in the nature of points
inlimine
, I agreed that this procedure
could be followed.
[36] The three arguments
are the following:
1.
The decision by the Controller/Minister not to refer the request to
arbitration does not constitute "administrative action"
and
is therefore not reviewable in terms of the Promotion of
Administrative Justice Act 3 of 2000 ("PAJA").
2.
The Controller/Minister is vested with a discretion whether or not to
refer a particular matter to arbitration. In the present
case, both
declined to refer the matter on the basis that there was and is
pending before the High Court (South Gauteng) an application
which
will determine the validity of the contract on which the applicant's
request for referral is based. This was a proper exercise
of
discretion and cannot be set aside on review.
3.
The decision in
Engen Petroleum Ltd v Tlhamo Retail (Pty) Ltd
(unreported, South Gauteng case no 43846/09, dated 6 May 2010) was
binding on the Controller and the Minister. That decision is
correct
in law and is dispositive of the present review.
[37] I will deal with the
arguments in the same order.
The
argument that the decision not to refer to arbitration does not
constitute "administrative action"
[38] It was argued that
only decisions which fall within the definition of "administrative
action" are reviewable in terms
of PAJA. In order to constitute
"administrative action" the decision must be one,
inter
alia
, "which adversely affects the rights of any person and
which has a direct external legal effect".
[39] It was argued that, on
the facts, the decision by the Controller (and the Minister) to
refuse to refer the matter to arbitration
was purely preliminary in
nature.
The argument appears to be
based on the following utterance by the Controller (the full text was
already quoted):
"In
the spirit of facilitating a speedy resolution to the dispute we urge
parties to allow the South Gauteng High Court to
give a determination
on the validity of the agreements before the matter can be taken
further."
The argument, if I
understood it correctly, was that the Controller "left the door
open" for the possibility of entertaining
an application to
refer the matter to arbitration at a later stage. It was argued that
decisions of a preliminary nature do not
adversely affect the rights
of any person and do not have any direct external legal effect.
[40] Authorities quoted in
supplementary heads of argument on behalf of Engen, on this point,
were not helpful, in my view, but
during the hearing, MrMarcus
referred me to the judgment in
City of Cape Town v Hendricks
2012 6 SA 492
(SCA). Two informal traders conducted their businesses
from large, sturdy, temporary structures erected on pavements at road
corners,
with a portion of each structure encroaching onto a
neighbouring property where a mall was situated.
A warning/compliance
notice issued by the City and notifying the traders of their
contravention of a bylaw and calling upon them
to comply with the
bylaw in order to avoid legal action was found not to be
"administrative action" for the purposes
of PAJA.
At 495C-D the following is
said:
"It
is clear that the City did not take a decision that the respondents
are obliged to remove and rebuild their business structures
daily on
their trading sites, and that the notices cannot reasonably be
construed to mean that. The notices simply informed the
respondents
that they must comply with the law (ie remove the structures which
contravene the bylaws and the Ordinance) and informed
them of the
consequences should they fail to do so. This was not administrative
action as defined in PAJA."
[41] The relevant portions
of the definition in PAJA read as follows:
"'Administrative
action' means any decision taken, or any failure to take a decision,
by –
(a)
an organ of state ...
(b)
...
which
adversely affects the rights of any person and which has a direct,
external legal effect, ..."
[42] In my view, the
remarks referred to in
City of Cape Town
are distinguishable,
and deal with a different situation altogether. In
Viking Pony
Africa Pumps v Hidro-tech Systems
2011 1 SA 327
(CC) the
following is said at 341B:
"PAJA
defines administrative action as a decision or failure to take a
decision that adversely affects the rights of any person,
which has a
direct, external legal effect. This includes 'action that has the
capacity to affect legal rights'. Whether or not
administrative
action, which would make PAJA applicable, has been taken cannot be
determined in the abstract. Regard must always
be had to the facts of
each case."
- See the
authorities quoted in the relevant footnotes.
[43] Mr Suttner argued,
correctly in my view, that when considering the nature of the
decision taken by either the Controller or
the Minister, it is
essential to consider the statutory context in which the decision was
required to be made.
The text of 12A and 12B
has already been quoted.
12A provides in subsection
(1) that
"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
."
And in subsection (2) it is
stated:
"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 ..." (Emphasis added.)
[44] As far as the
Controller is concerned, it is clear that the Act enjoins him to
either refer a matter to arbitration or to decline
to do so. The
decision either way is required to be a final decision. The Minister
is required to consider an appeal against the
decision. The appeal is
against a final decision. In the absence thereof, there would be no
scope for an appeal.
The Minister is required
to decide the appeal. The decision of an appeal cannot be described
as a purely preliminary decision. It
is final in nature.
[45] The Act allows only
one way to get a dispute before an arbitrator. That is via 12B.
[46] With reference to the
passage from the Controller's letter,
supra
, on which the
counsel for Engen relies, it was submitted on behalf of the applicant
that it is not within the Controller's jurisdiction
to defer his
decision in this way or to subordinate it to a later decision which
may be made by a court.
[47] It is important to
consider the remarks of the Controller, in his letter, in totality.
He, for example, made a clear finding
that there is no longer a valid
agreement between the applicant and Engen. He found that the
agreement forming the basis of the
applicant's allegations of unfair
or unreasonable contractual practice "have (
sic
) been
cancelled". He also finds, as a matter of fact, that the
applicant's allegations of unfair or unreasonable contractual
practice "are centered around the agreements which are currently
under consideration by the South Gauteng High Court and as
such the
matter is therefore
sub judice
and
can no longer be
considered for arbitration
" (emphasis added).
He then goes on to say
"In
light of the foregoing, it is our considered view that in the absence
of an existing valid Agreement of Lease and Operation
of Service
Station, Emmarentia's request for arbitration does not satisfy the
minimum requirements in terms of section 12B of the
Act. As such, the
Controller has no basis for referring this matter to arbitration
because of the requirements in the regulatory
framework."
In my view, this is clearly
a final pronouncement. He also says all this before concluding with
the remarks relied upon by Engen,
namely that "in the spirit of
facilitating a speedy resolution to the dispute" the parties are
urged to allow the South
Gauteng High Court to "give a
determination on the validity of the agreements" before the
matter can be taken further.
He follows it up by encouraging the
parties to use other dispute resolution forums which dispose of
disputes promptly as opposed
to protracted court proceedings. In the
light of the final pronouncements made by the Controller, these last
remarks can be seen
as nothing more than gratuitous advice which
takes the matter no further.
[48] Turning to the
Minister's decision, already quoted in full, it is clear, that she
regarded the Controller's decision as a final
one and then she goes
on to "confirm the decision made by the Controller of Petroleum
Products refusing the submission of
the matter to arbitration in
terms of section 12B of the Act". After making some remarks
purporting to deal with legal issues,
the Minister then concludes
that the Controller's decision "to refuse to submit the matter
to arbitration was justified in
the circumstances".
[49] I fail to see how
these decisions by both the Controller and the Minister can be
described as "purely preliminary in nature".
In my view,
these decisions adversely affect the rights of the applicant, and
have a direct, external legal effect on the applicant,
so that they
amount to administrative action in the spirit of the PAJA definition.
Consequently, I see no basis for upholding the
first argument offered
on behalf of Engen.
The argument that the
Controller/Minister exercised a proper discretion
[50] It was argued on
behalf of Engen that it is clear from the terms of 12B that the
Controller enjoys a discretion whether or
not to refer a matter to
arbitration. The Act is silent on the factors which are relevant to
the exercise of the discretion. Provided
that the factors taken into
account were permissible and lawful, there can be no basis for
impugning that discretion.
It was argued that neither
the Controller nor the Minister can be faulted for taking into
account the fact that the validity of
the contract in issue was the
subject of a pending High Court application. It was argued that if
the contract has been lawfully
cancelled, and it is so held by the
High Court, and eviction follows, then it would be an exercise in
futility for the Controller
(and the Minister) to entertain the
matter at all.
[51] It is necessary, and
convenient, at this point, to embark upon a brief discussion of
arguments offered on behalf of the applicant
with regard to the
significance of the introduction of 12B (and 12A for that matter) as
well as the Charter and all related provisions
into the Act by the
Amendment Act. I have already dealt, in some detail, with the
Charter, the long title of the Amendment Act
and the effect it had on
the present wording of the Act.
[52] It was submitted on
behalf of the applicant that the purpose of the arbitration process
prescribed in 12B is to provide alternative
and enlarged access to
dispute resolution procedures which were previously unavailable. It
was submitted that the provisions of
12B cannot be interpreted in
isolation but should be interpreted having regard not only to the
context of the Act and the Amendment
Act but also to the larger
picture, including the Constitution and other relevant law. It was
submitted that the court must adopt
an interpretation of 12B that
will render that legislation effective.
[53] It was submitted that
both the Controller and the Minister overlooked the fact that all the
unfair and unreasonable contractual
practices complained of by the
applicant had taken place prior to the alleged cancellation.
[54] What is of the utmost
importance, for purposes of deciding this dispute, is the fact that
the courts do not have jurisdiction
to decide the issues of fairness
and equity underlying the concept of unreasonable contractual
practices as intended by 12B. This
much was common cause between
counsel before me.
[55] In
South African
Forestry Co Ltd v York Timbers Ltd
2005 3 SA 323
(SCA) the
following was said at 338H-339D:
"This
implied term, as formulated by SAFCOL, was said to have imposed an
obligation on York to act in accordance with the dictates
of
reasonableness, fairness and good faith when SAFCOL exercised its
rights in terms of clause 3.2 and 4.4 of the contracts.
York's
answer to these contentions, which found favour with the Court
aquo
,
was that they were in conflict with the judgments of this Court in
Brisley v Drotsky
2002 4 SA 1
(SCA) paragraphs [21] to [25]
and [93] to [95] and
Afrox Healthcare Bpk v Strydom
2002 6 SA
21
(SCA) in paragraphs [31] to [32]. In these cases it was held by
this Court that, although abstract values such as good faith,
reasonableness
and fairness are fundamental to our law of contract,
they do not constitute independent substantive rules that Courts can
employ
to intervene in contractual relationships. These abstract
values perform creative, informative and controlling functions
through
established rules of the law of contract. They cannot be
acted upon by the Courts directly. Acceptance of the notion that
judges
can refuse to enforce a contractual provision merely because
it offends their personal sense of fairness and equity will give rise
to legal and commercial uncertainty. After all, it has been said that
fairness and justice, like beauty, often lie in the eye of
the
beholder. In addition, it was held in
Brisley
and
Afrox
Healthcare
that – within the protected limits of public
policy that the Courts have carefully developed, and consequent
judicial control
and contractual performance and enforcement –
constitutional values such as dignity, equality and freedom require
that Courts
approach their task of striking down or declining to
enforce contracts that parties have freely concluded, with perceptive
restraint."
It is convenient to further
illustrate the point by quoting a few extracts from what is stated in
the judgment at 340A-E:
"To
say that terms can be implied if dictated by fairness and good faith
does not mean that these abstract values themselves
will be imposed
as terms of the contract."
And:
"The
question whether parties have complied with their contractual
obligations depends on the terms of the contract as determined
by
proper interpretation.
The Court has no power to deviate from the
intention of the parties, as determined through the interpretation of
the contract, because
it may be regarded as unfair to one of them
."
(Emphasis added.)
And:
"Once
it is established that a party has complied with his or her
obligations as properly determined by the terms of the contract,
that
is the end of the inquiry."
[56] It seems that, in the
case of some legislation introduced after 1994, including the
Amendment Act and the Act, the ball game
has changed.
[57] I find myself in
respectful agreement, by and large, with detailed submissions made in
this regard by counsel for the applicant
in their comprehensive heads
of argument, which I briefly summarise: 12B introduced the concepts
("abstract values" in
the words of the learned Judge of
Appeal in
York
) of fairness and reasonableness into the
contractual relationship between licensed fuel retailers and
wholesalers. The legislature
felt compelled to intervene in the
relationship between retailers and wholesalers. Prior to March 2006
(when the Amendment Act
came into operation) the contractual
relationship between a fuel retailer and a fuel wholesaler would have
been governed by the
common law and in accordance with the law of
contract.
The legislature appears to
have concluded that it was necessary to regulate agreements between
fuel retailers and fuel wholesalers
to prevent the parties from
treating one another unfairly or unreasonably, and to address the
historical imbalance between the
various stakeholders in the fuel
industry.
Generally, fuel retailers
are individuals (conducting business in their personal capacity or
through the vehicle of a corporate
entity). The fuel wholesalers, on
the other hand, are generally large multi-national corporations which
are in a position to dictate
the terms (often of a Draconian nature)
of the agreements concluded with the fuel retailers. The agreements
concluded are generally
all encompassing and far reaching.
The Lease and Operation of Service Station Agreement in this matter
prescribes to
the applicant terms relating to a myriad of subjects.
Engen reserves the right to terminate the supply of fuel to the
applicant
in the event of the latter failing to comply with any of
the terms of the agreement. 12Bprovides the parties to such an
agreement
with a forum to ventilate any disagreements arising out of
their relationship.
Importantly, it is
submitted by counsel for the applicant, and I agree with them, that
the forum provided by 12B has not been established
in order to
determine contractual disputes between the parties. The courts are
already vested with this power.
The forum has been
established under 12B to determine "unfair or unreasonable
contractual practices" which may include
the unfair or
unreasonable implementation of contractual terms or the inclusion of
unfair or unreasonable contractual terms in
the agreement.
As appears from
York
,
a court generally has no power to determine the fairness or
reasonableness of a contractual term or the fairness and
reasonableness
and good faith of the implementation of a contractual
practice and the courts are not vested with any remedial power in
terms of
12B. The 12B arbitrator, on the other hand, has extensive
remedial powers and is vested with the discretion to make an award
which
he or she deems necessary to "correct such practice"
– 12B(4)(a).
[58] I turn to the powers
of the Controller within the ambit of 12B.
All that 12B provides, is
that the Controller may on request of a retailer alleging an unfair
or unreasonable contractual practice
by a wholesaler (or
vice
versa
) require the parties by notice in writing to submit the
matter to arbitration.
I accept, because of the
use of the word "may", that the controller has a discretion
whether or not to grant the request
but the only jurisdictional
requirement for this process to be activated appears to be an
allegation by the retailer (or the wholesaler
for that matter) of an
unfair or unreasonable contractual practice by the other one and a
request by the aggrieved party for te
matter to be referred to
arbitration.
All that is required of
the Controller is to determine whether the applicant has alleged an
unfair or unreasonable contractual practice.
It seems to me that a
12B request ought only to be refused by the Controller in the
clearest of cases, for example, where the Controller,
on good
grounds, can conclude that what is alleged is clearly not, and can
never be, an unfair or unreasonable contractual practice.
It seems to
me that the Controller can arrive at such a conclusion only in the
rarest and most exceptional of circumstances because
it would amount
to pre judging the issue. This is particularly so if one has
regard to the provisions of 12B(4)(b) which opens
the door for the
arbitrator, upon considering the case, to decide whether the
allegations made by the aggrieved party were frivolous
or capricious
and, if so, to compensate the affected party by making an appropriate
award to the latter. Presumably, there could
also be formal
requirements which are not met by the complainant and which will
allow the Controller to turn down the request,
such as the absence of
a proper licence in the possession of the complainant, as
foreshadowed by 12B.
In this case, there is no
suggestion of a flawed licence or that the comprehensive allegations
made by the applicant, as detailed
above, could not amount to unfair
or unreasonable contractual practices. Moreover, the Controller
should have been alive to the
fact, and taken it into account, that
earlier complaints by the applicant had already been referred to
arbitration in terms of
the first 12B request and was pending as
such.
From the aforegoing, it
follows, in my view, that the threshold for an aggrieved applicant
for arbitration to cross, in order to
have the request granted, is
extremely low. What is plain, is that it is not for the Controller to
decide the dispute between the
parties.
What the Controller
certainly could not do, within the limited powers vested in him or
her in terms of 12B, was to decide "that
there is no longer a
valid agreement between Emmarentia and Engen" and "the
agreement forming the basis of Emmarentia's
allegations of unfair or
unreasonable contractual practice have (
sic
) been cancelled".
The same applies to the Controller's finding that the dispute can no
longer be considered for arbitration,
because of the pending dispute
in the South Gauteng High Court: as demonstrated earlier, the
arbitration forum established under
12B has the power to pronounce
upon "unfair or unreasonable contractual practices",
something which the courts, generally,
are not empowered to do, as
appears from
York
and other decisions. Indeed, on my
understanding of the present legal position, as will be described
hereunder, the arbitrator,
in a proper case, has the power to
pronounce upon the validity of the purported cancellation of the
agreement based on the terms
of the contract, and can even set aside
such a cancellation.
It is for this reason,
that it would, in my view, be procedurally more appropriate for an
arbitrator, if appointed, to first come
to his or her decision so
that the way forward for the case in the South Gauteng High Court can
be clearly mapped out. IfI understood
counsel correctly during my
debate with them, the High Court proceedings are being kept in
obeyance (and it is now three years
since they were instituted)
pending the outcome of this application.
[59] In all the
circumstances, I have come to the conclusion that the Controller
committed an error of law when basing his or her
decision to refuse
the request for arbitration on a number of findings which he or she
was not entitled to make within the powers
vested in him or her. The
decision taken by the Controller was, in these circumstances,
materially influenced by this error of
law and falls to be reviewed
in terms of the provisions of section 6(2)(d) of PAJA. In my opinion,
the decision of the Controller
also falls foul of the provisions of
section 6(2)(e) of PAJA in that it was taken – (i) for a reason
not authorised by the
empowering provision and because (iii)
irrelevant considerations were taken into account and/or relevant
considerations were not
considered.
[60] For the same reasons,
the decision of the Minister in endorsing the decision of the
Controller (by more or less adopting his
or her reasoning as her own)
also falls to be reviewed and set aside.
[61] I add, in passing,
that a 12B decision by a Controller is not the only decision by the
Controller that can be taken on appeal
to the Minister in terms of
12A. AController has different powers, duties and functions which may
be determined by the Minister.
This can be gleaned from a general
reading of, for example, sections 2B, 2C, 2E and 3 of the Act.
[62] I turn to the case of
Maphango and others v Aengus Lifestyle Properties (Pty) Ltd
2012 3 SA 531
(CC) ("
Maphango
"). In my view, this
judgment provides the principles and the guidance in terms of which
disputes such as the present one have
to be considered.
[63]
Maphango
deals
with the
Rental Housing Act 50 of 1999
which provides,
inter alia
,
for the protection of the rights of tenants, and landlords for that
matter.
In the preamble, the
provisions of section 26 of the Constitution, that everyone has the
right to have access to adequate housing,
are recognised and the last
two paragraphs of the preamble read as follows:
"And
whereas there is a need to balance the rights of tenants and
landlords and to create mechanisms to protect both tenants
and
landlords against unfair practices and exploitation;
And
whereas there is a need to introduce mechanisms through which
conflicts between tenants and landlords can be resolved speedily
at
minimum cost to the parties ..."
In terms of
section 4(5)(c)
of the
Rental Housing Act, the
landlord's rights against the tenant
include his or her rights to –
"(c)
terminate the lease in respect of rental housing property on grounds
that do not constitute an unfair practice and are
specified in the
lease."
In terms of the
Rental
Housing Amendment Act no 43 of 2007
, several new provisions were
introduced into the
Rental Housing Act. One
of those was a definition
for "unfair practice" which means –
"(a)
any act or omission by a landlord or tenant in contravention of this
Act; or
(b)
a practice prescribed as a practice unreasonably prejudicing the
rights or interests of a tenant or a landlord."
[64] In
Maphango
,
the landlord terminated a number of leases on the basis that the
existing leases did not allow the landlord to unilaterally increase
the rental to the levels needed and that the only way in which this
could be achieved was to cancel the existing leases. At the
same time
the tenants were invited to enter into new lease agreements. The High
Court endorsed the termination of the leases, also
finding that the
aggrieved tenants had not proved that the termination was contrary to
public policy. An order of eviction of the
tenants was granted
against ten of the tenants. With leave of the High Court, the matter
went to the Supreme Court of Appeal ("the
SCA") which
concluded that the tenants' security of tenure was circumscribed by
the leases themselves. It could therefore
not be said that
termination, in accordance with the leases, constituted an
infringement of their security of tenure – at
540B.
Significantly, the learned
Judge, Cameron J, writing for the majority of the Constitutional
Court, said the following at 540C D:
"The
tenants' contractual argument fared no better. The Supreme Court of
Appeal held that since reasonableness and fairness
are not
free standing requirements for the exercise of a contractual
right, a court cannot refuse implementation of a contract
simply
because the individual judge regards this as unreasonable or unfair
..."
This, it
appears, is in line with what was stated in
York
and other
cases.
[65] In terms of
section
13(1)
of the
Rental Housing Act, any
tenant or landlord or group of
tenants or landlords or interest group may in the prescribed manner
lodge a complaint with the Rental
Housing Tribunal (created in terms
of chapter 4 of the
Rental Housing Act)
in
respect of a matter
which may constitute an unfair practice
(emphasis added).
The tribunal can then
refer the matter to mediation or conduct a hearing itself in order to
decide the complaints.
[66] In my view, there is a
clear similarity between the spirit or intention behind the Act and
the Amendment Act on the one side
and the
Rental Housing Act on
the
other side, and disputes flowing from referrals to arbitration in
terms of the Act and referrals to the Rental Housing Tribunal
in
terms of the
Rental Housing Act, should
be governed by the same
principles. The fact that the Act does not contain a specific
definition for "an unfair or unreasonable
contractual practice"
should not, in my view, detract from this approach.
[67] In
Maphango
,
the issue for decision was described as follows by the learned Judge
at 542E:
"The
critical question is whether the landlord was lawfully entitled to
exercise the bare power of termination in the leases
solely to secure
higher rents. At common law, there can be no doubt that a lessor was
entitled with no let or hindrance to terminate
a lease on notice. But
even before the Constitution, rent control legislation heavily
clamped lessors' common law powers ..."
And at 543D
the learned Judge says:
"Before
1994 the only clogs inhibiting a lessor's common-law power of
termination were those expressly legislated. But the
Constitution has
fundamentally changed the setting within which the rights of both
lessors and lessees stand to be evaluated. Constitutionalism
has
wrought significant changes to private-law relationships ..."
At 550E the learned Judge
says that the question before the Constitutional Court was not
whether the Act prohibited the landlord
from terminating the tenants'
leases in order to secure higher rents, "but whether the
termination was capable of constituting
an unfair practice".
Perhaps the crux of the
case is summarised in these words by the learned Judge at 551E G:
"The
Act expressly provides that a landlord's rights against the tenant
include the right to 'terminate the lease ... on grounds
that do not
constitute an unfair practice and are specified in the lease'. 'And'
is not disjunctive. Itis conjunctive. It means
the Act recognises the
landlord's power to terminate a lease, provided the ground of
termination is specified in it but, in addition,
does not constitute
an unfair practice. Differently put, the Act demands that a ground of
termination must always be specified
in the lease, but even where it
is specified, the Act requires that the ground of termination must
not constitute an unfair practice."
[68] Perhaps more
importantly for present purposes, the learned Judge says the
following at 551F-552C:
"In
this way, the Act superimposes its unfair practice regime on the
contractual arrangement the individual parties negotiate.
That the
statute considers its unfair practice regime to be super-ordinate
emerges not only from the requirement that a lease-based
termination
must not constitute an unfair practice, but also from what the Act
enjoins the tribunal to take into consideration
when issuing its
rulings: these include 'the provisions of any lease', but only 'to
the extent that it does not constitute an unfair
practice'. The
effect of these provisions is that contractually negotiated lease
provisions are subordinate to the tribunal's power
to deal with them
as unfair practices.
It
follows that where a tenant lodges a complaint about a termination
based on a provision in a lease, the tribunal has the power
to rule
that the landlord's action constitutes an unfair practice, even
though the termination may be permitted by the lease and
the common
law ... This makes it even clearer that the statutory scheme does not
stop at contractually agreed provisions, and conduct
in reliance on
them. It goes beyond them. It subjects lease contracts and the
exercise of contractual rights to scrutiny for unfairness
in the
light of both parties' rights and interests."
[69] At 552G, Cameron J
held that the SCA applied an unduly constricted approach to the
question, which focused solely on the landlord's
common law
entitlement to cancel the leases. He held that the dispute could best
be approached through the generous and powerful
mechanisms of the
Rental Housing Act with
the result that leave to appeal was granted,
the appeal was postponed and the matter was referred to the Rental
Housing Tribunal,
with leave to re approach the Constitutional
Court for further directions. Aminority of three of the
Constitutional Court
judges held that the leases were validly
terminated – at 582I. And in another minority judgment,
Froneman J and Yacoob J
concurred in the majority judgment of Cameron
J, but added some further comments which I do not propose dealing
with.
[70] In the result, I
remain satisfied that the Controller erred in refusing the
application for an arbitration referral, did so
for reasons which
were beyond his or her powers to adopt and, in doing so, committed an
error of law which materially influenced
the decision, thereby
rendering it reviewable as already indicated. Ialso remain of the
view that the decision of the Minister,
in endorsing the Controller's
decision falls to be reviewed and set aside.
[71] I turn to the third
argument offered on behalf of Engen.
The
decision in
Engen Petroleum Ltd v Tlhamo Retail (Pty) Ltd
(South Gauteng case no 43846/09) was binding on the Controller and
the Minister, correctly decided and dispositive of the review
application
[72] In
Tlhamo
, the
operating lease had lapsed through effluxion of time at the end of
March 2008 so that there was no dispute flowing from any
cancellation
thereof. The respondent was forced to conclude an agreement ("FA5")
providing for the sale of the petrol
station by the applicant to a
third party. This agreement may have been entered into under duress
because the applicant threatened
to terminate the supply of fuel and
petroleum products and to evict the respondent from the petroleum
station.
There was another
agreement ("FA4") which was the so-called month-to-month
operating lease replacing the lapsed original
lease which was
terminable on the giving by the applicant to the respondent of 24
hours notice, which had been done. It was held
therefore that the
respondent had no right whatever to occupy the property and for that
matter to receive further fuels.
[73] The respondent argued
that the conduct of the applicant in cancelling both those agreements
was unfair and unreasonable and
constituted a contractual practice,
as intended by 12B, which was referable to the arbitrator.
[74] On pp10-11 of the
unreported judgment, the learned Judge says the following:
"The
exercise of a legal right to cancel or terminate a contract although
pertaining to a contract is not a 'contractual practice'.
It is a
single juristic act intended to terminate an agreement and cannot be
characterised as a practice (that is a hibitual doing
or carrying on
of something).
I
hold therefore that the termination of the month-to-month operating
lease agreement FA4 and the agreement FA5 does not constitute
a
contractual practice that is referable to the arbitrator in terms of
section 12B of the Act."
[75] In
Marievale
Consolidated Mines Ltd v President of the Industrial Court and others
1986 2 SA 485
(TPD) the learned Judge, Goldstone J, said the
following at 498A D:
"(b)
What
constitutes a 'practice'
In
my opinion, the reference to 'labour practice' in the definition of
'unfair labour practice' relates to a customary or recognised
device,
scheme or action adopted in the labour field. I am in no way
attempting to give an exhaustive definition to that phrase.
My
purpose is solely to indicate that it does not in any way relate to
hibitual or repetitious conduct on the part of a particular
employer.
Such an interpretation of the phrase does not appear to be a natural
one and is certainly not necessary, having regard
to the words in
their context. It would lead to the unhappy, if not absurd, result
that any employer can be a 'bad boy' once and
may be twice but not
thrice! That cannot have been the intention of the legislature. Ifind
no basis for upholding this submission
made on behalf of the
applicant."
It does not
appear as if the learned Judge in
Tlhamo
was referred to this
decision.
[76] In
Maphango
,
which, of course, was decided long after
Tlhamo
, the learned
Judge says the following at 553C-554A:
"I
also respectfully differ from the Supreme Court of Appeal's
conclusion that 'practice' envisages only 'incessant and systemic
conduct by the landlord which is oppressive or unfair' and cannot
consist in unacceptable conduct on an isolated occasion. It has
long
been established in our law that a 'practice' may consist in a single
act. This accords with one of the ordinary meanings
of the word (
my
note
: see footnote 108, which even demonstrates support for this
approach in the
Shorter Oxford Dictionary
). Thus, it was
decided early under the unfair labour practice jurisdiction in
employment law that a single dismissal may constitute
a labour
'practice'. That authority has never been doubted. It forms the
interpretive backdrop for understanding the use of the
word
'practice' in the Act. More importantly, the broader interpretation
accords with the Constitution. The Act is a post-constitutional
enactment adopted expressly to give effect to the right of access to
adequate housing. A cramped interpretation of 'practice' would
thwart
its good ends."
[77] For the above reasons,
I am obliged to come to the conclusion that the decision in
Tlhamo
,
on this point, was wrong. 0f course, the learned Judge did not have
the benefit of being referred to any of the two decisions
which I
quoted from.
[78] It follows that the
Minister, who adopted the reasoning on this point of the learned
Judge in
Tlhamo
, to fortify her decision to endorse the
Controller's decision, was also wrong, committed a further error of
law in this respect,
and that rendered her decision, also for this
reason, reviewable.
Should
this case be remitted to the Controller and the Minister in the
spirit of the provisions of section 8(1)(c)(i) of PAJA, or
is this an
"exceptional" case where this court can substitute the
administrative action reviewed and set aside with a
decision of its
own?
[79] This is a matter of
some substance, and the 12B request for a review was already filed on
4 April 2011, more than three years
ago.
It appears that an undue
delay, under these circumstances, has been held to be justification
for a court substituting the administrative
action through its own
decision in terms of section 8(1)(c)(ii) of PAJA – see
National
Tertiary Retirement Fund v Registrar of Pension Funds
2009 5 SA
366
(SCA) at 375F H;
ICS Pension Fund v Sithole
2010 3 SA
419
(TPD) at 442B D.
[80] With the 12B request
already having been filed more than three years ago, and the
Controller's decision having been handed
down more than two years
ago, on 27February 2012, and where it must be realistically
anticipated that there will be a further delay
if the matter were to
be referred back to the administrators, it seems to me that this is
an exceptional case which falls inside
the ambit of the provisions of
section 8(1)(c)(ii).
Costs
[81] I see no reason for
not applying the normal rule that the costs should follow the result
and, in this case, the costs of two
counsel are justified. Provision
will also be made for costs relating to unnecessary duplications in
the record to be disallowed
in terms of a discussion I had with
counsel during the hearing.
The order
[82] I make the following
order:
1.
The decision delivered by the first respondent on 27 February 2012 in
terms of which the applicant's request to refer an alleged
unfair or
unreasonable contractual practice to arbitration in terms of
section
12B
of the
Petroleum Products Act, no 120 of 1977
, was refused, is
reviewed and set aside.
2.
The decision delivered by the second respondent on 6 November 2012,
in terms of which the decision of the first respondent, described
in
1above
, was confirmed, is reviewed and set aside.
3.
The applicant's request for referral of an alleged unfair or
unreasonable contractual practice (as set out in annexure "O"
to the founding affidavit) is referred to arbitration in terms of
section 12B
of the
Petroleum Products Act, 120 of 1977
. The first and
second respondents are ordered to facilitate this referral, in terms
of
section 12B
, as a matter of urgency.
4.
The costs of the application, including the costs of two counsel, are
to be paid by the third respondent save for the costs referred
to in
5 hereunder
.
5.
The costs of 1397 pages of the record (being the duplicated pages)
are disallowed.
W R C PRINSLOO
JUDGE OF THE GAUTENG
DIVISION, PRETORIA
HEARD ON: 11 MARCH 2014
FOR THE APPLICANT: J
SUTTNER SC ASSISTED BY N REDMAN
INSTRUCTED BY: DES NAIDOO
ATTORNEYS
FOR THE 1
ST
AND
2
ND
RESPONDENTS: NO APPEARANCE
FOR THE 3
RD
RESPONDENT: G J MARCUS SC WITH A THOMPSON SC
INSTRUCTED BY: A D
HERTZBERG ATTORNEYS