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[2009] ZAGPPHC 331
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Gouws and Another v Gaddin and Others (57963/08) [2009] ZAGPPHC 331 (13 February 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA
CASE
NO: 57963/08
DATE:
2009-02-13
In
the matter between:
IVOR
GUSTAV GOUWS AND
IVORSON
FILLING STATION
CC Applicant
And
J
K GADDIN AND OTHERS
Respondent
JUDGMENT
LEDWABA
J:
The applicant filed an urgent
application in terms whereof, pending the finalisation of his review
application which I will hereinafter
refer to as “the main
application” issued on 10 December 2008 that the 3rd respondent
should be temporarily interdicted
and be prohibited from conducting
business under the Petroleum Product Act of 1977 on Erf 1017 at
Marble Hall.
The
application is opposed by the 3rd respondent only. The other
respondents indicated that they would abide by the decision of
this
Court. The order sought by the applicant in the main application
reads as follows:
1. “That the
decision of the 1sl respondent on appeal, to grant site and retail
licenses in respect of Erf 1017, Marble Hall,
to the 3rd or joint 3rd
respondents be reviewed and set aside in terms of Rule 53,
alternatively Rule 6.
2. That the decision of
the second respondent to refuse the 3rd or joint 3rd respondents site
and retail licenses be restored.
3.
That the record of decision by the Department of Agriculture and Land
Administration of the Mpumalanga Provincial Government
-
(17/2/4NK108) in favour of the 3rd or joint 3rd respondents in
respect of Erf 1017, Marble Hall be set aside ex tunct(?) and
be
declared and be declared nil and void.”
At
the hearing of this application the 1st, 2nd and 4th respondents had
not yet filed records of the proceedings and no opposing
papers by
the said respondents have been filed yet to the main application.
On
the facts in the papers, it is stated that at Marble Hall there are
four existing licenses for filling stations. Applicant owns
two
filling stations since about 1986 and thinks that the license issued
to the 3rd respondent would cause his filling stations
to lose
business and he would become bankrupt. He further states that he
would suffer serious and irrevocable loss and damages.
I
also need to mention that this application before me consists of 286
pages excluding 199 pages of the main application which the
applicant
incorporated into this urgent application.
The
applicant further alleged in this application that the grounds of
review set out in the main application are reaffirmed in this
application. Applicant’s submission is that the ROD from the
Provincial Government of Mpumalanga, the 4lh respondent, which
was
taken on 5 December 2006 by which the 4th respondent granted
authorisation to 3rd respondent in terms of section 22 of the
Environmental Conservation Act, 73 of 1989, to construct a filling
station is void. According to the applicant the ROD had to be
considered by the state department of the Limpopo Provincial
Government 10 and not the Mpumalanga Government.
Applicant
further submitted that it is a precondition to a legally cognisable
application to the 2nd respondent for a site licence
which is also a
'precondition to a valid retail licence.
It
is also stated in the papers that the retail licence of the 3rd
respondent was granted by the 1st respondent on appeal after
the
decision of the 2nd respondent to refuse the granting of the site and
retail licence to the 3rd respondent. It is also clear
on the facts
of this case that the construction of the 3rd respondent's filling
station commenced in about September 2008 and construction
continued
even during the December 20 holidays which is a clear indication that
the 3rd respondent would like to commence business
as soon as
possible. It was further submitted that the fuel for calibrating
pumps has been poured. This simply means that there
is fuel in the
tanks which are at the construction place.
The
3rd respondent in its answering affidavit to this urgent application
stated that he also represents the joint 3rt respondent
being Ivorson
Filling Station CC in which he holds 100% of the member’s
interest.
The
3rd respondent in the answering affidavit stated that the review
application was materially flawed in that the provisions of
section
7(1)
of the
Promotion of Administrative Justice Act, 3 of 2000
, which
is commonly known as PAJA, which states that the review procedure
must be instituted without reasonable delay and not later
than 180
days after the date was not complied with.
The
applicant’s counsel countered the argument by stating that
there is an affidavit under oath by one Mr Gideon Erasmus that
an
appeal has been lodged as an internal remedy in this matter. In one
of the letters attached to the application from EBB which
is an
institution of Mr G Erasmus, dated 16 October 2008 it was stated that
the MEC would be approached and be requested to withdraw
the ROD that
was issued to the 3rd respondent.
If
the applicant’s version that an appeal has been launched is
accepted this simply means that the internal remedies have
not yet
been exhausted when this review application was filed.
During
the submissions made to me, both counsel made detailed submissions
regarding section 1 of the Constitution’s 12th Amendment
Act,
205 on whether the Mpumalanga Province had the jurisdiction or not to
issue the ROD. The Court was given detailed heads of
argument which
dealt with that aspect. I am not going to decide on the said issue in
this matter.
In
my view the issue calls for a joinder of other relevant parties who
should make further inputs on the existence of the protocols
which
are referred to in the heads. This is an issue that I cannot make a
prima facie view upon or decide upon due to lack of time
and
information on the issue.
It
is clear that the 3rd respondent in commencing with the construction
of the business had obtained the required legal documents
which were
issued by government authorities and relevant bodies to be contacted
before a filling station can be established. Unless
such documents or
licenses are withdrawn by the relevant authorities the licenses
remain valid unless they are set aside by the
Court or unless they
are patently clear that they are void.
On
the papers before me I do not have enough information to form a prima
facie view on the applicant’s application for review
because
the record of the proceedings had not yet been filed and the
respondents have not yet filed their answering affidavit.
It is clear
on the application before me that as far as certain aspects are
concerned there are dispute of facts and in the presence
of such
dispute of facts I will refer to Reckitt Coleman SA (Pty) Limited v S
C Johnson and Son SA (Pty) Limited
1995 1 SA 725
(TPD) at 730B to C
wherein the Court said the following:
“
When
the applicant cannot show a clear right and more particularly where
there are disputes of fact relevant to the determination
of the
issues, the Court’s approach in determining whether the
applicant’s right is prima facie established, though
open to
some doubt, is to take the facts set out by the applicant, together
with any facts set out by the respondent, which the
applicant cannot
dispute and to consider whether, having regard to the inherent
probabilities, the applicant should and not could,
on those facts,
obtain relief a the trial of the main action. The facts set out in
contradiction by the respondent should then
be considered and if
serious doubt is thrown upon the case of the applicant it cannot
succeed.”
In
this matter I need to adopt a robust approach and weigh the balance
of convenience if the temporary interdict is to be granted.
The
3rd respondent, as I have earlier indicated, had the necessary
documents which allowed him to commence with the structure. I
was
told, and it has been stated in the papers, and there are photos also
showing how far the structure has commenced and from
those documents
it was submitted on behalf of the 3rd respondent that the structure
is now 80% complete. It was further submitted
on behalf of the
respondent that millions 10 of rands have now been spent on the
project which had already started in September
2008.
The
main application which has been filed by the applicant is still in
its initial stage and it may take about a year to two years
before it
is finalised. If this temporary interdict is not granted the
applicant may lose some customers who may go to the 3rd
respondent’s
filling station if it commences with business. However, I am not
totally convinced that a new filling station
would cause the
applicant to lose business to an extent that it would be bankrupt.
The
applicant has been running two filling stations at Marble Hall for
about 20 years. If he offered good services to his customers,
I have
got reason to believe that those customers would be loyal to him. The
question of job losses has also been raised by the
applicant that
should his filling station be bankrupt his employees would lose their
jobs. Such an aspect should also be weighed
against the job creations
that would be made by the 3rd respondent if it commences with the
business.
The
applicant has not, in my view, showed that he would suffer
irreparable harm if the interdict was not granted. What he just
alluded was that his business would be bankrupt without furnishing
more information which is material to support that allegation
and as
applicant has indicated that an appeal was filed herein, I am of the
view that the applicant has an alternative remedy in
this matter. The
appeal that he alleges that was filed may be pursued.
After
seriously considering all the facts and circumstances of this case I
am of the view that the balance of convenience does not
favour the
granting of the temporary interdict. I, therefore, make the following
order:
The
application is dismissed with costs.