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[2009] ZAGPPHC 107
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Cream Majenta 127 (Pty) Ltd t/a BP Linden Park v Shell South Africa Marketing (Pty) Ltd and Others (6629/2009) [2009] ZAGPPHC 107 (7 September 2009)
IN THE HIGH COURT OF SUID AFRICA
(NORTH GAUTENG HIGH COURT)
Case Number: 6629/2009
In the matter between:
CREAM MAJENTA 127 (PTY) LTD t/a BP LINDEN PARK APPLICANT
vs
SHELL SOUTH AFRICA MARKETING (PTY) LTD
…………………
1st RESPONDENT
GAUTENG DEPARTMENT OF AGRICULTURE,
CONSERVATION & ENVIROMENT
………………………………….
2nd
RESPONDENT
THE CONTROLER OF PETROLEUM PRODUCTS
……………….
3rd RESPONDENT
JOSEPH TSHOLOFELO RAMOTSHO
………………………………
4th
RESPONDENT
CITY OF JOHANNESBURG DEPARTMENT AND
PLANNING, TRANSPORTATION AND ENVIRONMENT
…….…..
5th
RESPONDENT
JUDGMENT
Delivered on: 07 September 2009
POTTERILL AJ
1. This application was struck from the urgent court roll due to lack
of urgency. Only the First Respondent is opposing the application
with all the other
respondents abiding by the Court's decision. The same application,
nonsupplemented, was then set down on the opposed motion
roll.
After argument the Court is requested to grant only the following
prayers as set out in the notice of motion:
"2 THAT an interim interdict be granted as against the First
Respondent ordering the First Respondent to cease and desist
from
continuing with the erection and establishment of a petrol service
filling station on the remaining extent of Erf 447, Linden
Extension,
Robindale, Randburg, Gauteng:
3 THAT an interim interdict be granted against the Fourth Respondent
not to operate or conduct the business of a retail outlet
for petrol
and ancillary sales.
6 THAT the interim interdicts contained in Prayers 2 and 3 above
shall remain in place until such time as the First and Fourth
Respondents have obtained all the authorizations and licences that
they require to hold and operate a petrol service filling station
at
the site, including but not limited to:-
6.1 A valid site licence;
6.2 A valid retail licence;
6.2 A valid Record of Decision from the Second Respondent;"
2. No argument was heard, and accordingly decision required, on the
application to strike out.
3. The applicant submits that it is entitled to the interdictory
relief claimed despite the first respondent's change in stance
in now
conceding they have no site licence. The applicant is seeking to
assert its right not to have to face illegal competition.
The
applicant has reasonable apprehension of harm because despite having
no site licence the attitude and modus operandi of the
first
respondent was to proceed with construction. An interdict is the only
remedy to safe-guard the applicant against the first
and fourth
respondents' unlawful conduct.
4. The first respondent submits that there is no genuine threat to
the applicant and accordingly no interdict could be granted.
The
first respondent as a leading petroleum supplier stated it has no
intention of acting illegally or to conduct the business
of a filling
station without the appropriate authorisation. It was argued if the
first respondent should proceed with construction
it would do so at
its own peril. Furthermore the applicant has an alternative remedy
for the offending ROD in that they can apply
for a review thereof.
The respondent argues that the interdict is in fact final relief
couched in terms which no court can grant;
the relief is seeking to
direct the respondents not to disobey the law.
5. Both parties request costs to include costs of two counsel.
6. The applicant must on the established facts show that it has
grounds for its fear. The applicant need not establish that on
a
balance of probabilities flowing from the undisputed facts that
injury will result. In prayer 2 the applicant is requesting "an
interim interdict to cease and desist from continuing with the
erection and establishment of a petrol service filling station on
the
remaining extent of Erf 447." It is never denied that already
during October 2006 there was activity on the site. This
led to the
applicant writing a letter to the first respondent on 23 November
2006 with content that the construction of a filling
station was not
to commence without all relevant authorization and that the applicant
is directly affected by the proposed activity.
The first respondent
notes the content of this letter. Paragraphs 112.1 and 115.1 of the
opposing affidavit by the first respondent
respectively read as
follows:
"The First Respondent admits that it has been and continues to
build the garage filling station in accordance with the approval
granted it.";
The construction continued again after the builders' holiday period."
In paragraph 44 of the opposing affidavit first respondent states:
"the First Respondent has all approvals it requires to
complete
the construction of the garage filling station."
This is simply not true; the first respondent does not have a valid
site licence. In terms of Section 2A(1)(c) the First Respondent
may
not ...".or develop a site without there being a site licence
for that site. The first respondent may not construct on,
or develop
the site. The first respondent will not only be doing it at their own
peril, they will be acting unlawfully. On the
facts set out above the
first respondent was developing the site and the applicant had a
well-grounded apprehension that they would
continue and needed to be
stopped. Despite an undertaking by the respondent that it will
refrain from any alleged wrongful conduct
the court is not precluded
from granting an interim interdict; Mcilongo NO v Minister of Law and
Order
1990 (4) SA 181
(E). The issue is whether it would be
reasonable for a man in the position of applicant to nevertheless
apprehend injury despite
the undertaking or assurance by the
respondent that the alleged infringements will not incur. The first
respondent's conduct over
a long period does not inspire confidence
that it will refrain from developing the site. In paragraph 44 of
the affidavit it was
prepared to tell half-truths to the court and
the applicant has a well-grounded apprehension of injury.
7. An interlocutory interdict may be granted to restrain a breach of
a statutory provision. In Glas v Glas
1980 (3) WLD 263
on p266 C-E it
is set out as follows:
"The only basis on which a person can approach the Court to
obtain an interdict, be it a prohibitory or a mandatory one, to
protect statutory rights is that set forth in two leading cases, Patz
v Greene
1907 TS 427
and Roodepoort -Maraisburg Town Council v
Eastern Properties (Pty) Ltd
1933 AD 87.
The effect of these cases,
which have firmly laid down the law in this regard, is adequately
summarized by McKerron in the Law
of Delict 7th ed at 282 where,
referring to the judgment of Stratford JA in the
Roodepoort-Maraisburg Muncipliality case, the learned
author says:
"He then repeated with slight modifications the rule laid down
in Patz v Green. The rule as amended by Stratford
JA may be stated in
the form of two propositions:
(1) where it appears, either from a reading of the enactment itself,
or from that plus a regard to surrounding circumstances, that
the
Legislature has prohibited the doing of any act either wholly or
partly in the interests of any person or class of persons,
any such
person can claim an interdict to enforce the prohibition without
proof of damage;
(2) where the doing of an act is prohibited in the public interest,
any member of the public who can prove damage or a well founded
apprehension of damage, can claim an interdict to enforce the
prohibition."
In casu the Legislature has prohibited the development of a site
until one is in possession of a site licence. The applicant can
claim
an interdict to enforce the prohibition.
8. As for the ROD it is true that the applicant did have an
alternative remedy to have this process reviewed. This however would
not have prohibited the first respondent from developing the site.
The first respondent started to do so without a site licence.
The
review process was thus not a bar to obtaining an interdict.
9. I accordingly make the following order:
9.1 THAT an interim interdict be granted as against the First
Respondent ordering the First Respondent to cease and desist from
continuing with the erection and establishment of a petrol service
filling station on the remaining extent of Erf 447, Linden Extension,
Robindale, Randburg, Gauteng:
9.2 THAT the interim interdict contained in Prayers 9.1 shall remain
in place until such time as the First Respondent has obtained
all the
authorizations and licences that it requires to hold and operate a
petrol service filling station at the site.
9.3 THAT the first respondent is to pay the costs, including costs of
two counsel
S Potterill
Acting Judge of the High Court
Attorney for the Applicant: HENDERSON KUIPER ; ISAACSON &
ROOSEBOOM ATTORNEYS (Ref: BP0001/GR/RVN) Pretoria Tel: 012 460 7660
Attorney for the 1st Respondent: CLIFFE DEKKER HOFMEYER ATTORNEYS
(Ref: A H CHRITODULOU/01900224) Tel: 011 290 7366; C/O SOLOMON
NICHOLSON REIN & VERSTER INC (Ref: Mr. Sto\plRose/Z.7962)
Pretoria Tel: 012 343 22711 535 8000.