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[2012] ZAGPPHC 88
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Malelane Garage (Pty) Ltd t/a Malelane Toyota and Others v Alzu Petrochemicals 2 (Pty) Ltd and Others (60892/2011) [2012] ZAGPPHC 88 (4 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
No. 60892/2011
DATE:04/06/2012
In
the matters between:-
MALELANE
GARAGE (PTY) LTD t/a MALELANE
TOYOTA
...............................................................................................................
First Applicant
MAS
CORPORATION (PTY) LTD t/a MASCOR
MALELANE
......................................................................................................
Second
Applicant
DORCOM
TRADING 199 (PTY) LTD t/a SASOL
MALELANE
..........................................................................................................
Third
Applicant
and
ALZU
PETROCHEMICALS 2 (PTY)
LTD
........................................................
First Respondent
TOPCOAT
INVESTMENTS 15 (PTY)
LTD
..................................................
Second
Respondent
TEDO
BELEGGINGS 79 (PTY)
LTD
..............................................................
Third Respondent
ME
TSELISO MAQUBELA IN HIS CAPACITY AS
CONTROLLER OF PETROLEUM
PRODUCTS IN THE
DEPARTMENT OF
ENERGY
........................................................................
Fourth
Respondent
MR
VUSANANIDLAMINI IN HIS CAPACITY AS
HEAD
OF THE MPUMALANGA DEPARTMENT OF ECONOMIC
DEVELOPMENT,
ENVIRONMENT AND TOURISM
........................................
Fifth
Respondent
TOTAL
SOUTH AFRICA (PTY)
LTD
................................................................
Sixth
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Van
der Byl. AJ:-
[1]
On 18 November 2011 I dismissed, with costs, including the costs of
two counsel, an application by the Applicants for an interim
order
ordering the First, Second and Third Respondents to cease all
retailing activities at both Nkomasi Toll Plaza filling stations,
pending an application for review and setting aside of the site
licences issued to the Second Respondent ( prayer 2.1.1 ), an
application to compel the Fourth Respondent to inform them of the
status of the various applications made by the First Respondent
(prayer 2.1.2) and, in the event of any licences having been granted
to the Respondents, an appeal against each decision in terms
of which
any such licences were granted (prayer 2.1.3).
[2]
In a Notice of Application for Leave to Appeal ("the Notice")
filed on 9 December 2011 the Applicants seek leave to
appeal against
my judgment and order on 15 grounds specified in the Notice.
[2]
On 21 May 2012, ie., two days before the hearing of this application,
a notice entitled "Additional Ground of Appear was
hand
delivered at my chambers in which it is contended -
(a)
that on 12 March 2012 the Fourth Respondent published a list of
applications from which it appears that the Second Respondent
on 17
August 2011 and 6 September 2011 applied for new site licences in
respect of the filling stations in question, being a fact
which was
allegedly not disclosed to this Court by either the Second or Fourth
Respondent and which was not known to the Applicants;
(b)
that, therefore, the making and acceptance of these applications
constitute admissions by the Second and Fourth Respondents
that
during August and September 2011 the Second Respondent was not in
possession of valid site licences in respect of the two
filling
stations;
(c)
that the Second Respondent was accordingly not entitled to have
commenced with the construction of the filling stations in question
and the First Respondent not entitled to have made application for or
to have been granted a retail licence.
After
counsel appearing on behalf of the Respondents noted their objection
against the application to advance further evidence without
having
afforded the parties a proper and timeous opportunity to respond
thereto, Ms. Janse van Nieuwenhuizen SC who appeared on
behalf of the
Applicants in this application withdrew the application and indicated
that she would restrict the Applicants' application
to the grounds
set out in the Notice.
[4]
To return to the Notice, the fact that the Notice was filed as far
back as 9 December 2011 calls for an explanation why this
application
was enrolled for hearing only on 23 May 2012.
[5]
At the time the Notice reached me, the judgment had not yet been
transcribed. The transcribed version reached me on 17 April
2012. I
was requested in an e-mail addressed to me by the Applicants'
attorney of record on 16 February 2012 to hold over the allocation
of
a date for the hearing of the application as he was still
communicating with the Respondents' representatives whereafter they
will ensure that I be provided with the court file timeously. On 11
May 2012 I received a letter from the Applicants' attorney
of record
requesting me to enrol the matter for 23 May 2012, being a date
convenient to all the parties.
[6]
Because of the delay of more than six months since I dismissed the
Applicants' application, I asked counsel whether the Applicants
have
in the meantime lodged any review application as envisaged in prayer
2.1.2 of the Notice of Motion or an appeal against any
decision of
the Fourth Respondent granting any licences applied for by the First
Respondent as envisaged in prayer 2.1.3 of the
Notice of Motion.
[7]
It would appear that no review application had been lodged because,
so it is contended on behalf of the Applicants, they are
first
required to exhaust their internal remedies as provided in section
7(2)(a) of the Promotion of Administrative Justice Act,
2000 (Act 3
of 2000).
[8]
As far as the Applicants' envisaged appeal against any decision taken
by the Fourth Respondent is concerned, Ms Janse van Nieuwenhuizen
informed me from the bar that such an appeal had been lodged on 24
October 2011 and that the appeal is still pending.
[9]
This information, however, gave rise to a heavy debate between the
parties as to whether or not this information forms part
of the
papers or whether or not this information is or can be substantiated.
[10]
What is apparent from the founding papers is that the Applicants, not
having been able to obtain copies of any applications
for retail
licences or temporary licences, on 25 September 2011 lodged
objections against the granting of any retail licences or
temporary
retail licences to the First Respondent.
[11]
As appears from the Respondents' papers -
(a)
site licences were issued to the Second Respondent on 3 August 2010
and 15 December 2010;
(b)
pending a decision on applications for retail licences submitted by
the First Respondent on 17 August 2011 and 1 December 2011,
temporary
licences were granted on 17 October 2011 and 24 October 2011 (of
which the Applicants were informed on 24 October 2011,
being the date
on which this application was launched).
[12]
No indication is contained in any of the further papers filed by the
Applicants, particularly, the Applicants' replying affidavit
filed on
10 November 2011, that an appeal has in terms of
section 12A
of the
Petroleum Products Act, 1977
{"the Act'), been lodged on 24
October 2011 or on any date thereafter. Such an averment was in my
view, particularly, if regard
is had to prayer 2.1.3 in terms of
which temporary relief was sought pending an appeal in terms of that
section, a necessary averment.
[13]
In terms of the said section 12A an appeal must be lodged within 60
days after the decision in question has been made known
to the
affected person and must be accompanied by -
(a)
a written explanation setting out the nature of the appeal;
(b)
any documentary evidence upon which the appeal is based.
[14]
The significance of these considerations is that, in so far as no
appeal has been lodged within the prescribed period or a
review has
not been launched with the period of 180 days prescribed by the
Promotion of Administrative Justice Act, 2000
, is that any appeal on
the dismissal of the Applicants' application for interim relief
pending any such appeal or review will have
no practical effect.
[15]
For this reason alone the application for leave to appeal cannot in
my view succeed.
[16]
In the course of argument it became apparent that this application
was restricted to the grounds set out in paragraphs 3, 4,5,10,11
and
12 of the Notice in that I erred -
(a)
not finding that the Applicants have a prima facie right to the
relief sought (paragraph 3 of the Notice);
(b)
not finding that the balance of convenience favoured the relief
sought (paragraph 4 of the Notice);
(c)
not finding that the Applicants have a reasonable prospect of success
in appealing the decision of the Fourth Respondent to
grant temporary
retail licences to the First Respondent in terms of
section 2B(5)
of
the
Petroleum Products Act, 1977
, in respect of filling stations that
had never been in operation (paragraph 5 of the Notice);
(d)
not attaching sufficient weight to the unlawful construction of the
filling stations (paragraph 10 of the Notice);
(e)
attaching too much significance to the fact that the filling stations
were already in operation (paragraph 11 of the Notice);
(f)
taking into consideration the situation of the third parties who were
not before Court (paragraph 12 of the Notice).
[17]
As is apparent from the grounds set out above, no reasons appear from
the Notice why it is contended that I erred in these
respects which
cast serious doubts on the validity of the Notice (see: Tzouras v SA
Wimpy (Pty) Ltd
1978 (3) SA 204
(W) at 205E; S v Maliwa and Others
1986 (3) SA 721
(W) at 726E; Molebatsi v Federated Timbers (Pty) Ltd
1996 (3) SA 92
(B) at 941; Songomo v Minister of Law and Order
1996
(4) SA 384
(E) at 3851] Van der WaltvAbreu 1999(4) SA 85 (W) at 94E).
In the absence of any reasons why it is contended that I erred in the
respects raised in the Notice, I was left completely in the dark to
determine exactly the bases on which it is contended that I
so erred.
The majority of the grounds raised are in any event misconceived.
[18]
In the event of I am being wrong in this regard, I will now turn to
the grounds raised in support of the application.
[19]
Firstly, I find it convenient to first deal with the contention that
I erred in holding that the balance of convenience favoured
the
Respondents. In this regard I held, as is apparent from my judgment,
considering the dire consequences various entities who
are not
parties to these proceedings (such as, Steers and Mugg & Bean,
conducting business on the premises, the approximately
130 employees
appointed by Alzu to serve at the filling stations and the other
facilities conducted by it on the premises) and
the First, Second and
Sixth Respondents will suffer if an interim order is granted, the
interests of the Respondents and the other
persons concerned by far
outweigh the interests of the Applicants.
Ms.
Janse van Nieuwenhuizen submitted that the arrangements which were
made and which had given rise to the consequences which weigh
heavily
against the interests of the Applicants were made before the
temporary retail licences were issued and that, therefore,
the
Respondents were the authors of their own situation..
This
is in my view an unrealistic submission.
As
appears from the provisions of the Act a retail licence or temporary
retail licence is not issued together with the issue of
a site
licence. The holder of a retail licence must obviously make, in
preparation of its envisaged business, various investments
most of
which resulted in the respects on which the balance of convenience
was determined. In any event many of the persons who
will be affected
by the interim order the Applicants sought were not parties to the
application to whom the submission made in
this regard cannot apply.
I
accordingly fail to see how another Court may on this finding come to
a different conclusion.
[20]
Secondly, the submissions made in relation to my finding on the
Applicants' prima facie case.
Relying
on the unreported judgment of Botha J delivered in this Court in the
case of Up & Under Motors and Another v The Controller
of
Petroleum Products and Another under Case No. 9365/07 on 30 March
2007 and on the decisions in Apleni v Minister of Law and
Order and
Others 1989(1) SA 195 (A) at 2001-201D and Zulu v Minister of Defence
and Others 2005(6) SA 446 (T), Ms. Janse van Nieuwenhuizen
submitted
that a Court considering an application for interim relief does not
have to make a final determination on a legal issue
in dispute. The
question in this matter is accordingly, so it was submitted, whether
I should have held that, on an interpretation
of the provisions of
section 2B(5) of the Act, the issue of the temporary retail licences
in this matter were on a prima facie
basis unlawfully issued.
In
my judgment I refrained from taking any decision on the precise
interpretation to be
[22]
For these reasons I am unpersuaded that this is a case where another
Court may come to a different conclusion.
In
the result the application is dismissed with costs, including any
costs, if any, that may have been incurred in respect of the
application to submit further evidence and, where applicable the
costs ofj|wo counsel.
P
C Van der Byl
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANTS: ADV. N JANSE VAN NIEUWENHUIZEN SC
On
the instructions of: VENN & MULLER ATTORNEYS
Venn
& Muller Suite 105
Club
Avenue Waterkloof Heights
PRETORIA
Ref: G Erasmus / 08053/mb
Tel:
(012) 346 0934
ON
BEHALF OF FIRST RESPONDENT: ADV J G BERGENTHUIN SC
On
the instructions of:VAN ZYL LE ROUX INC
1st
Floor, Monument Office Park, Block 3 cnr Steenbok Avenue Elephant
Road Monumentpark PRETORIA
Ref:
V Velden/AD/399337or birmans@mweb.co.za
Tel:
(012) 435 9444 or (013) 282 7515
ON
BEHALF OF THE SECOND AND THIRD
RESPONDENTS:ADV
J L VAN DER MERWE SC
MR
G WAGENAAR
ON
THE INSTRUCTIONS OF GERHARD WAGENAAR ATTORNEYS
Glenrand
Building 82 Glenwood Street
Lynwood
Glen
PRETORIA
RE: G wagenaar/GT 0038 Tel: (012) 361 0907
ON
BEHALF OF FOURTH AND FIFTH RESPONDENTS: ADV A M JOZANA
On
the instructions of:THE STATE ATTORNEY
8th
Floor,
Manaka
Heights 316 Andries Street cnr Andries & Schoeman Streets
PRETORIA
Ref:
Mr R Mosito Tel: (012) 309 1505
ON
BEHALF OF SIXTH RESPONDENT: ADV S DU TOIT SC
ADV
S K HASSIM SC
On
the instructions of: KNOWLES HUSSAIN LINDSAY
4th
Floor, The Forum 2 Maude Street Sandown
SANDTON
Ref:
Mr N D Taitz Tel: (011)669 6000
DATE
OF HEARING: 23 May 2012
JUDGMENT
DELIVERED: 4 June 2012