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[2013] ZAGPPHC 168
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Total South Africa (Pty) Ltd In re: BP Atlas Road and Another v Azitex CC and Others (55926/12) [2013] ZAGPPHC 168 (13 June 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 55926/12
DATE:
13 June 2013
TOTAL
SOUTH AFRICA (PTY)
LTD
.......................................................
INTERVENING
PARTY
In
re:
BP
ATLAS ROAD; trading name of
ALLADIN
SERVICE STATION
CC
…...........................................................
FIRST
APPLICANT
ROOKSANA
AND RASHID SOOBRAYAN
...............................
JOINT
SECOND APPLICANT
AZITEX
CC Reg No.
2010/153454/23
..................................................
FIRST
RESPONDENT
EDOPAX
CC Reg No.
2010/153457/233
..............................................
ALTERNATIVE
FIRST
RESPONDENT
STAND
13 EASTWOOD ROAD DUNKELD (PTY) LTD
Reg
No.
2000/003022/07
................................................................
SECOND RESPONDENT
ENGEN
PETROLEUM LIMITED
Reg
No.
1989/03754/06
.........................................................................
THIRD
RESPONDENT
THE
MEC; DEPARTMENT OF AGRICULTURE,
CONSERVATION
AND ENVIRONMENT;
GAUTENG
PROVINCIAL DEPARTMENT
........................................
FOURTH
RESPONDENT
EKURHULENI
METROPOLITAN MUNICIPALITY
.................................
FIFTH
RESPONDENT
THE
CONTROLLER OF PETROLEUM PRODUCTS
…....................
SIXTH
RESPONDENT
THE
MINISTER; NATIONAL DEPARTMENT OF
MINERALS
AND ENERGY
…........................................................
SEVENTH RESPONDENT
THE
MINISTER; NATIONAL DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS AND TOURISM
...................................
EIGHTH
RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO INTERVENE
MABUSE
J:
1.
This is an application brought under the provisions of Uniform Rule
12 read with Uniform Rule 6(14) in terms of which Total South
Africa
(Pty) Ltd (“Total”) seeks an order to intervene (“the
intervention order”) as the Ninth Respondent
in an application
issued out of this court on 27 September 2012 under case number
55926/12 (“the Main Application”)
by BP Atlas trading as
Al lad in Service Station CC, the First Applicant and Rooksana and
Rashid Soobrayan (“the Joint Second
Applicant”). For
reasons of convenience, I will refer to the First Applicant and the
Joint Second Applicant in the Main Application
as the “Applicants”.
2.
When the Total issued this application, it had sought, among others,
the following order:
“
The
costs of this Application be costs in the cause in the Main
Application, alternatively, the costs of this Application be paid
jointly and severally by all such parties as oppose the relief sought
herein."
Notwithstanding
the said prayer, the Applicants have seen it fit to oppose the
application to Intervene. They do so through the
opposing affidavit
of Rooksana Soobrayan which was supported by the affidavit of Yaseen
Soobrayan.
3.
I now proceed to deal with the circumstances that led to Total's
application to be part of the Main Application. The sequence
of the
relevant steps preceding the launch by Total of this application is
of some importance. Mrs. Rooksana Soobrayan and her
husband, Mr.
Yaseen Soobrayan, are both members of a closed corporation called
Alladin Service Station CC. Through this closed
corporation
they conduct a business of a petrol station and related activities in
Kempton Park under the name of BP Atlas Road.
4.
By way of notice of motion initially issued on an urgent basis on 27
September 2012 referred to as the main application, the
Applicants
seek firstly, a permanent and final interdict against the development
and operation of a retail fuel filling station
and the related
activities on Erf 1094 Parkhaven Extension 7, otherwise known as a
Portion of Portion 2000 of the Farm Witkoppies
No. 64 I. R;
hereinafter referred to as “the property" in so far as
such development and operation are based on:
1)
any licences issued by the Sixth Respondent;
2)
any rezoning by the Fifth Respondent; and,
3)
any Environmental Authorisation granted by the Fourth Respondent.
Secondly, they seek a declaration of invalidity of a decision
of the
Fourth Respondent taken on 13 September 2010 to the effect that the
Environmental Authorisation issued in respect of the
property in
terms of the Environmental Authorisation Act No. 73 of 1989 has not
lapsed; thirdly, a declaration of invalidity of
the decision of the
Fourth Respondent dated 6 December 2007 in which it granted the
Authorisation and the consequent declaration
of the invalidity of the
Authorisation itself; fourthly, and finally, they seek a declaration
of the invalidity and their setting
aside of any site and retail
licences issued by the Sixth Respondent in respect of the property
together with certain relief.
5.
It is clear, as it appears from the notice of motion in the Main
Application, that Total was not cited as a party in the Main
Application despite the fact that Engen Petroleum Ltd ('‘Engen’’),
a company which is a large distributor of
petrol in South Africa, was
cited therein as a party. Total contends that it would appear that at
the time the Applicants launched
the application the First and Second
Respondents had not provided full details to Total or the precise
details that the Applicants
sought. However the First and Second
Respondents had reassured Total that they had filed the papers
opposing the Main Application
and that they would in due course
report back to Total. Subsequently Total was informed by the First
and Second Respondents that
the Main Application had been dismissed
by the court due to lack of urgency.
6.
During the early part of 2013 it was ascertained that the Applicants
had set the Main Application down on the ordinary court
roll and that
it was accordingly still proceedings. Total made investigations and
requested from the Applicants’ attorneys
a copy of the
pleadings in the main action so as to enable it to peruse and
understand the matter and determine whether it needed
to intervene in
order to protect its interests. This was done on 15 of April 2013
when the Applicants' attorneys in the Main Application
provided Total
with a lever arch file containing the pleadings in the Main
Application. Attached to the pleadings was a covering
letter dated 11
February 2013. The said letter was written by the attorneys of the
Applicants. The said letter stated, among others,
that:
“
1.
We refer to the matter of BP Atlas Road trading as A!lad in Service
Station CC and Another v Azitex CC and Others, In the North
Gauteng
High Court, Case No. 55926/2012 where we act for BP Atlas Road
trading as AUadin Service Station CC and Rooksana and Rashid
Soobrayan (“client”).
2.
We attach hereto for your attention the full set of Court Papers in
the aforementioned matter.
3.
We do not believe you are a necessary party to the subject matter of
litigation and that there is any need for our client to
involve Total
South Africa (Pty) Ltd ("Total”), there being no
connection between Total and our client and we are of
the view that
Total has not committed in any overt action, so to justify their
citation as a Respondent.
4.
We, however, draw attention to paragraph 38.4 at page 179/180 of the
papers where Azitex CC and Stand 13 Eastwood Road, Dunkeld
(Pty) Ltd
have averred that Total should be joined.
5.
We reject the averment aforesaid as baseless. However, should Total
require to intervene in the manner we will not be opposed
to the
intervention.
6.
Kindly advise us within 3 (Three) working days from date of receipt
of this letter; whether you wish to intervene and wish to
file any
papers herein.
7.
We also include for your convenience, Heads of Argument filed by each
of the advocates and confirm that we are proceeding to
seek the
interdict and revocation of the Site and Retail Licences on the
grounds set out in the Applicants' Heads of Argument.
8.
in conclusion we point out that should Total proceed as suggested by
Azitex CC we might consider seeking damages from Total but
that would
be a matter of a separate and new action which will require Total to
be sued and summonsed. Yours faithfully Venn &
Muller Murray
Kotze."
7.
On 18 February 2013 a copy of the voluminous pleadings in the Main
Application was handed to one Gavin Schar, a director at Knowles
Husain Lindsay Inc (“KHL"), Total’s attorneys of
record in this matter. On the same date a formal letter was
immediately addressed by Total’s attorneys to the Applicants in
the Main Application which stated that Schar was in the process
of
considering the voluminous court papers with the view to advising
Total of its rights. KHL, Total’s attorneys made it
clear that
it would in due course revert to the Applicants’ attorneys.
They stated in the said letter as follows:
“
1.
We act for Total (Pty) Ltd.
2.
We refer to your letter to our client dated 11 February 2013. a copy
of which appears only to have been delivered to our client
on 15
February 2013.
3.
The writer today received a copy of our letter and a set of
voluminous court papers attached thereto. We are in the process of
considering same with the view to advising our client. In the
circumstances we shall revert to you in due course with respect to
our client s possible intervention in the matter.
4.
Naturally our client's rights remain strictly reserved.
Yours
Faithfully
Knowles
Husain Lindsay Inc."
8.
In order to enable KHL to attend to this matter properly they
proceeded to schedule a meeting with the appropriate Total
representatives
who were conversant with the matter in order to
responsibly discuss the matter and to determine the grounds on which
Total could
intervene in the Main Application and the necessity for
such an intervention. By way of an affidavit by its legal advisor,
one
Nonna Metja Donald Mahlafonya (“Mahlafonya”), Total
contends that it has a direct and substantial interest in the outcome
of the Main Application. The said direct and substantial legal
interest in the outcome of the Main Application is evidenced by
the
following that Total has:
1)
signed a long term lease agreement with the Second Respondent as the
owner of the premises, in terms of which Total, along with
the First
Respondent, is a joint lessee of the property;
2)
agreed to and has entered into a servitude in favour of Total over
the property enduring for a period of twenty (20) years which
prohibits the sale or distribution of petroleum products on or from
the premises other than those provided by Total;
3)
retained ownership of certain valuable assets some of which are of a
permanent nature that already have been installed on the
premises;
and,
4)
entered into a long term sales agreement with the First Respondent
for the delivery and sale of Total petroleum products on the
premises
9.
The said Mahlafonya contends furthermore in his affidavit that Total
stands to suffer severe prejudice if the relief it seeks,
that is of
intervention in the Main Application, is not granted. Total justifies
its Application for Intervention on the basis
that the Applicants
had, in the Main Application deemed it appropriate to cite Engen
Petroleum Ltd as the Third Respondent. They
are of the view that this
was done because at the time the Applicants launched their Main
Application, they had believed that the
First and Second Respondents
had contacted with Engen. It is clear on that point that they were
not aware that the arrangements
had in fact been done with Total.
Accordingly Total contends that once the Applicants became aware that
Total as a petroleum company
should be involved and not Engen, they
should have cited Total as an interested party. That was not done. It
was on that basis
that he had conversed extensively with his
colleagues and with Total’s legal representatives and where
after he made a decision
to intervene in the matter in order to
protect Total’s substantial interest. The reason they did this
was based on Total’s
rights to do so and was not intended to
sabotage the Applicants’ legal process.
10.
It is important, however, to point out that while the Applicants
admit that they had cited Engen as a party to the Main Application,
they, however deny vehemently that it was for the reasons mentioned
by Total. They contend that they had cited Engen as a party
to the
Main Application because Engen was a co-grantee, by name and title,
of the Environmental Authorization (“EA”)
issued by the
Fourth Respondent. The relevant EA is still the subject of the Main
Application according to them. The circumstances
under which the
relevant EA was issued to Engen are now known. They have been placed
on the record by the Applicants. It was never
argued by Mr. Du Toit,
counsel for Total, that the same circumstances that led to the
applicants citing Engen exist also in the
case of Total. Total does
not, apart from relying on the citation of Engen, claim entitlement
to be part of the main application
on the existence of similar
circumstances. I must therefore find that their reliance on the
citation of Engen is therefore without
any substance.
11.
By way of extrapolation, during the last quarter of 2011. Total was
approached by Carl Nord (“Nord”) who at the
time was
acting on behalf of the First and Second Respondents. He proposed to
develop certain filling stations in Gauteng in conjunction
with
Total. One such proposed filling station was to be developed on the
property. This approach eventually led to the conclusion
of
agreements and servitudes which I already have referred to herein
above in paragraph 8. On 26 January 2012 Nord sent an email
message
to Andre Cloete (“Cloete”) of Total, confirming that the
First and Second Respondents had received the requisite
Site and
Retail Licences for the premises and had started bulk earthworks at
the premises. Bulk earthworks involve, among others,
the levelling of
the land in preparation for construction thereof.
12.
Then in early 2012, Total commenced its detailed internal
investigation to determine the viability of the proposed filling
station. In doing so Total took into account, inter alia, the area in
which the proposed development was to take place, the prospects
of
doing business in that area, which of course included analysing the
historic growth and potential for the future growth and
development
area, the existing competitors in the area, the estimated fuel sales
by such competitors, the effect that the new proposed
site may have
on the competitors and whether it would attract business. Upon
completion of the aforegoing analysis, Total decided
during or about
July 2012 to proceed with the project and to engage formally the
First and Second Respondents. Accordingly the
parties commenced
negotiations in contemplation of concluding written agreements.
Finally on 22 February 2013 the signed agreements
were concluded
between the parties.
13.
The Lease Agreement between Stand 13 Eastwood Road, Dunkeld (Pty) Ltd
and Total South Africa (Pty) Ltd and Azitex CC attached
to the
Total's application an marked DM10, the Sale Agreement between Total
South Africa (Pty) Ltd and Azitex CC trading as Total
Atlas Road
attached to the application and marked DM11 as well as the Notarial
Deed of Servitude attached to the Total’s
Application for
Intervention marked as DM12, all illustrate and confirm Total’s
substantial and direct interest in the property
and in the outcome of
the Main Application. In his affidavit Mahlafonya pointed out that
the servitude agreement between Total
and the Second Respondent
provides, among others, the following that:
1)
no petroleum products other than products provided by Total shall be
installed, handled, sold or distributed on or from the premises
without Total’s prior written consent;
2)
no person shall occupy and/or take possession of the premises other
than Total or a nominee of Total;
3)
the premises shall not be transferred to any person who has not
undertaken in writing in a form satisfactory to Total to be bound
by
the lease agreement; and,
4)
the servitude, duly registered on 30 May 2013, in favour of Total
shall endure for a period of 20 years from the date of registration
thereof and shall be a restrictive burden and servitude over the
premises for the full period and shall be binding on the Second
Respondent and it successors entitled and assigned.
14.
According to Mahiafonya should the relief sought in the main
application by the Applicants not be granted, Total stood to suffer
severe loss, as illustrated herein below, of:
1)
the costs of installation referred to above of R1,550,000.00;
2)
R200,000.00 for the removal of the tanks which remain Total’s
property;
3)
R214,000.00 in respect of professional fees; and,
4)
A substantial amount as yet uncalculated in respect of the lost time
and expenses involved in the negotiations and preparation
of the
agreements.
15.
The Applicants opposed Total’s Application for Intervention
order on the grounds, firstly, that such an application is
baseless
and discloses no right of action. They contend so on the basis that
on 27 September 2012, that is the date on which the
Main Application
commenced, there existed no basis on which Total had any right to be
cited and furthermore that no such basis
has accrued or arisen since
then.
16.
Secondly, they contend that whatever agreements Total has concluded
with the other Respondents in the Main Application do not,
and
legally cannot, create any rights for the Applicant or in addition to
the rights held by such Respondents and already in issue
in the Main
Application; thirdly, that in view of the fact that the centrepiece
of the Main Application is the legality of the
licences referred to
in paragraph 4 supra, Total has in law, no say, no rights or no
standing and no legal interest. Fourthly,
and by way of adumbration,
the Applicants contend, firstly, that no one who manufactures or
wholesales petroleum products in this
country can per se have any
say, standing or rights in the retail sector or in any manner
affecting or stemming from the deployment
of the licences issued to
persons by the Sixth Respondent and furthermore that no such entity
which holds a wholesale licence issued
to it by the Sixth Respondent
may enter into any agreements to supply any retail site with
petroleum.
17.
The Applicants contend furthermore that Total’s claim that they
had initially cited Engen had no basis by reason of the
fact that the
citation of Engen depended on the fact that it was a co-grantee, by
name and title, of the Environmental Authorisation
(“EA”)
issued by the Fourth Respondent which is the centrepiece of the Main
Application.
18.
With regard to Total’s reliance on the letter dated 11 February
2013 which Total regards as a waiver of the Applicants’
right
to oppose any application by Total for Intervention, the Applicants
contend that the said letter, although containing an
invitation to
participate in the Main Application, was short-dated and was not
taken up by Total in the time allowed. Secondly,
about the said
letter, the Applicants contend that the said letter was not
unconditional and did not contain any acknowledgement
that the
Applicants were in any way prepared to show support to Total’s
participation unless that was done at Total's costs
and risk. The
Applicants contend furthermore that Total should have been seen the
said invitation as an attempt to open a door
for the two sets of
attorneys to open chance of negotiations.
19.
In order to succeed with its application for intervention, Total has
to satisfy the court that it has a direct and substantial
interest in
the order that the court might make in the Main Application. This
principle was stated in the following manner in Amalgamated
Engineering Union v Minister of Labour 1949(3) S.A. 637 AD:
“
If
a party has a direct and substantial interest in any order the court
might make or if such an order could not be carried into
effect
without prejudicing that party; it is a necessary party and should be
joint in the proceedings."
A
direct and substantial interest has been held to be "an interest
in the right which is the subject matter of the litigation
and not
merely financial interest which is only an indirect interest in such
litigation". See Henri Viljoen (Pty) Ltd v Awerbach
Brothers
1953(2) S.A. 151(0) at p. 169.
20.
Mr. Du Toit listed the following factors and argued that they
establish that Total has direct and substantial interest in the
Main
Application: that Total has a registered long term lease of the
property; that it has a registered servitude on the property;
and
thirdly, that it has invested in infrastructure on the property. He
also argued that the court should take into account the
fact that for
the duration of the long term lease Total shall have the right to be
the sole and exclusive supplier of petroleum
products to the premises
and the business conducted on the premises and other related terms.
21.
In the supporting affidavit by Mahlafonya dated 3 June 2013, it is
stated in paragraph 2 that: 7 depose to this affidavit in
order to
bring it to the above Honourable Court's attention that the filling
station on Erf 1094 Parkhaven Extension 7, commenced
trading on 8 May
2013!' In my view this creates a compelling case for Total to be
granted leave to intervene. It now has a vested
right in the business
of the petrol station.
22.
While I would concede that Total may have a commercial interest in
the Main Application to the extent that it is indirectly
and
financially interested in making sure that the First Respondent is at
liberty to continue honouring its contracts with it;
I am satisfied
though that Total has now, even more than before, a direct and
substantia! interest in the Main Application.
23.
Mr. Savvas, counsel for the Applicants, had argued, following the
contention of the Applicants in their affidavit, that Total
did not
have any right to participate in the proceedings of the Main
Application when it commenced on 27 September 2012. There
is, in my
view, no substance in this argument. I say so because Rule 12 of the
Uniform Rules of Court provides that a party may
join in as a
defendant or plaintiff "at any stage of the proceedings”.
24.
Total did not anticipate any opposition against its application for
intervention. It
relied
on a sentence in the letter dated 11 February 2013 from the
Applicants’ attorneys to it. Paragraph 4 of the said letter
created an impression that, if total brought an application the Main
Application as one of the parties to it, the Applicants would
not
oppose it. That part of the letter that created that impression is
the following:
‘
'However,
should Total require intervention in the matter, we will not be
opposed to the intervention"
This
sentence is as clear as crystal and contains no ambiguity. Contrary
to the Applicants' contention, this letter contains neither
proposition nor any invitation to open talks. While it set out the
Applicants' rejection of Nord’ statement in paragraph
38.4 oOf
the Main Application and the whole idea of Total joining it as a
party, it however at the made Total believe that there
would be no
opposition to an application by Total to join the Main Application.
25.
The argument that the said letter did not contain any unconditional
invitation carries, in my view, no substance. In paragraph
9 of the
opposing affidavit, it stated that: “ There never was any
acceptance or acknowledgement that / would be prepared
to accept the
risk of the Applicant's (referring to Total) costs and I reject such
a risk." This goes against the grain of
the sentence ! referred
to in the preceding paragraph and the fact that Total did not ask for
costs if the application had not
been opposed.
26.
In the result this application stands to be granted. Accordingly I
make the following order:
1.
Total is hereby granted leave to intervene as the Ninth Respondent in
the Main Application issued on 27 September 2012, under
case no.
55926/2012, by the First Applicant and Joint Applicants (“the
Main Application”).
2.
The First Applicant and Joint Applicant are hereby ordered to pay the
costs of this application jointly and severally.
P.M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counset
for the Applicants: Adv. B.G. Savvas
Instructed
by: Venn & Mu Her Attorneys
Counsel
for the 1st and 2nd Respondents: Adv. S.J. Grobler (SC)
Adv.
LGF Putter
Instructed
by: Hirshowitz FHonis Attorneys
Counsel
for the 5th Respondent: Adv. S Mitchell
Instructed
by: Matsemela, Krause & Ngubeni Inc.
Counsel
for intervening party: Adv. S. Du Toit (SC)
Adv.
J.J. Meiring
Instructed
by: Knowles Husain Lindsay Inc.
Date
Heard:10 June 2013
Date
of Judgment:13 June 2013