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2024
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[2024] ZAMPMBHC 16
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Rhino Fuels (Pty) ltd and Another v Maybach Oil and Gas (Pty) ltd and others (351/2024) [2024] ZAMPMBHC 16 (22 February 2024)
HIGH
COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
Case
No.: 351/2024
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE:
22/02/2024
In
the matter between:
RHINO
FUELS (PTY) LTD
FIRST
APPLICANT
RHINO
PETROLEUM (PTY) LTD
SECOND
APPLICANT
And
MAYBACH
OIL AND GAS (PTY) LTD
FIRST
RESPONDENT
NTANDO
ZWELIHLE MHLONGO
SECOND RESPONDENT
IMPI
NGWENYA
THIRD
RESPONDENT
MEMBERS
AND SUPPORTERS OF
THE
FIRST AND SECOND RESPONDENT
FOURTH
RESPONDENT
THE
STATION COMMANDER OF THE
SOUTH
AFRICAN POLICE SERVICES
MALELANE
FIFTH
RESPONDENT
MINISTER
OF POLICE
SIXTH
RESPONDENT
JUDGMENT
CORAM:
BHENGU AJ
[1]
This
is an urgent application in terms of Rule 6(12) of the Uniform Rules.
The Applicants seeks an interim interdict against the
First to Fourth
Respondents from unlawfully threatening, intimidating and harassing
the Applicants, its employees and or its suppliers
in relation to the
Applicant’s business operations. There is no relief sought
against the Fifth Respondent and the Sixth
Respondent except for the
Fifth Respondent to enforce the order against the Respondents.
Reference to the Respondents refers to
the First and Second
Respondent.
[2]
The
First and Second Respondents opposed this application and filed a
counter application for an order interdicting the Applicants
from
operating a petroleum wholesale business without a licence in terms
of section 2A(1)(b) of the Petroleum Act 120 of 1877.
No urgency is
claimed in relation to the counter application and as a such, the
counter application is referred for Judicial Case
Management.
Background
facts
[3]
The
Applicants and the Respondents are competitors in the petroleum
business. The dispute between the parties emanates from the
Respondents’ belief that the Applicants are operating a
petroleum wholesale business without a licence. The Respondents are
disgruntled with the low prices that the Applicant’s charges
for petroleum products as it affects their competitive advantage
in
the petroleum market. It appears that there have been previous
engagements between the parties relating to the business operations
of the Applicants which will not be referred to for purposes of this
matter.
Applicant’s
case
[4]
In
summary, in the Applicants’ founding affidavit deposed to by Mr
Kruger (a Director of the Applicants), it is averred that
on 24
January 2024, Mr Kruger had a meeting with Mr Mhlongo (the Second
Respondent and also a Director of the First Respondent).
Mr Mhlongo
accused the Applicants of trading as a wholesale petroleum business
without a licence thereby making it difficult for
the Respondents to
retain their clients. He informed him that he will stop his business
from operating. Mr Mhlongo told Mr Kruger
that if he does not adhere
to his demands, he could use violence if same is needed. According to
Mr Kruger, he perceived the utterances
from Mr Mhlongo to be threats
against him and his business.
[5]
On
26 January 2024, the Respondents visited the Applicants’
petroleum depot uninvited in three vehicles without number plates.
It
is alleged that the Respondents threatened the Applicant’s
employees with physical violence and ordered the employees
to close
down the depot. Further allegations were levelled against the
Applicants that they were conducting an illegal business
without a
license to trade. The Respondents further demanded that the
Applicants pay them money in order that they may leave the
premises
and stop their intimidating tactics. The Applicants then called the
South African Police Services (SAPS) Malelane for
assistance, but
they were told by the police that the police require a court order in
order to intervene. To try and defuse the
situation, Mr Kruger agreed
to meet with Mr Mhlongo on 29 January 2024. He then went to the
police station to make a statement
but was unable to do so on 26
January 2024.
[6]
On
28 January 2024, Mr Kruger filed a charge of intimidation with the
SAPS Malelane with case number: CAS 64/1/2024
[1]
.
A statement made to the police by Mr Nyambi
[2]
,
one of the Applicant’s employees stated that:-
“
On
Friday 2024-01-26 at approximately 12h00, I was on duty at Charmont
Mine …as a diesel attendant when I noticed a group
of about
eight African male who came with three bakkies and one of them said I
must stop operating. They ordered me to phone my
boss or supervisor
which I did… I became frightened and had to stop”.
[7]
After
opening the case with the SAPS, Mr Kruger was afraid to meet Mr
Mhlongo on 29 January 2023 as promised at the previous meeting
for
fear of retribution for opening a case against him. He was no longer
feeling safe around the Respondent because they had already
threatened him with violence. He then decided to cancel the meeting
with Mr Mhlongo. In response to the cancellation of the meeting,
Mr
Mhlongo sent a series of WhatsApp messages
[3]
and calls directed to Mr Kruger. In one of the WhatsApp messages, Mr
Mhlongo wrote:-
“
You
making a very big mistake, I will show you, you called the police?
I'm with the police now. Let's see what's going to happen.
(11h21)
“
You
buying smuggling fuel you killing my market and you operating without
a Wholesale License and you don't even have the EIA, you
stuffing the
market around for everyone. Trust me if you think I'm playing games,
you're going to regret all this. Believe me,
I don't lose
”
(12h02)
“
10:00.
On Monday at Wimpy Ferrera Street”
(19H09)
[8]
On
29 January 2024, Mr Mhlongo tried to call Mr Kruger and when he did
not answer his calls, he then sent him another WhatsApp message
complaining that he is making him an idiot. Mr Kruger then decided to
block Mr Mhlongo’s number on his phone.
[9]
The
Applicants thereafter installed further boom gates and posted guards
at the premises to ensure that the Respondent does not
gain access.
[10]
On
30 January
2024,
the Respondents gained access to the Applicants’ premises by
driving through the boom gate. The Respondents were accompanied
by members of the SAPS
[4]
.
Whilst at the premises, they intimidated and harassed the Applicants’
employees and forced them to cease operations. They
threatened that
physical violence would follow should their request not be adhered
to. The employees of the Applicants vacated
the business premises,
and the Respondents took control of the business premises. The
Applicants again called the SAPS for assistance,
and they were
advised to obtain a court order. The Applicants had to call a private
security company, Impi Consulting, to assist
in removing the
Respondents from the depot. A confirmatory affidavit deposed to by Mr
Mark Haarhoff, of the private security company
is filed in support of
this allegation
[5]
. Screenshots
of a video footage shows people entering the Applicant’s
business premises.
[11]
Mr
Kruger avers that the Applicants perceives the threats of the
Respondents to mean that the respondents would proceed to physically
harm the Applicants’ employees and infrastructure. The
Applicant’s employees are seriously scared, threatened and
intimidated by the actions of the Respondents. They are afraid that
the actions of the Respondent will escalate, that the infrastructure
of the Applicants and the lives of its employees are in danger. The
Applicants then launched this urgent application for an interdict
against the Respondents.
Respondent’s
case
[12]
The
Respondents deny any acts of harassment, intimidation or threats of
physical violence against the Applicants and its employees.
The
Second Respondent’s (Mr Mhlongo) version of events as stated in
his answering affidavit is as follows:
“
Firstly,
I contacted the deponent on the 20
th
January 2024 with the purpose of discussing the illegal operation…On
the 24
th
January 2024 we met and discussed…He then undertook to contact
me on the 25
th
January 2024 for feedback i.e. producing evidence that the
business operations are legal.
When
he failed to keep his undertaking…On 26 January 2024, I
reported the matter to the SAPS. The SAPS and I reported to
the
Applicants’ premises. The SAPS spoke to the Applicants
employees’ and requested to speak to their boss. I then
received a call from the deponent, and he asked me that I should not
involve the police as we can resolve this matter amicably…
He
proposed that we should meet on the 29th of January 2024. However,
when he did not show up on the 29th of January 2024, I then
sent a
WhatsApp message complaining of his conduct.
On
30 January 2024, I decided to go look for him at his premises
together with the SAPS”.
[13]
According
to the Respondents, the Applicants are conducting an illegal
wholesale petroleum business which is a criminal offense
in terms of
Section 2A(1)(b) of the Petroleum Act. The Respondents referred to an
email from the Department of Mineral Resources
and Energy (“DME”)
dated 01 February 2024 which confirms that there is a pending
application for a license lodged by
First Applicant on 31 January
2024 and that there are no records of the Second Respondent’s
license. The Respondents contend
that the Applicants are trying to
legitimize their illegal business through a Court order and that the
Court cannot issue an order
protecting an illegal business.
[14]
Counsel
for the Respondents argued that even if the tone of the WhatsApp
message from Mr Mhlongo dated 26 January 2024 seemed as
if he was
angry, he submitted that, however, there is no indication in the
WhatsApp message that he intended to cause harm to the
Applicant’s
employees. All that the Respondent wanted to see was the Applicants
complying with the relevant pieces of legislation.
He further
submitted that, Case Law dictates that, the Court should not be hasty
to make a finding of hate speech or violence.
He asked the Court to
look at the context when those messages were sent, including the
cordial discussion between the parties on
24 January 2024.
[15]
According
to the Respondents, their conduct is well within the law. They
averred that it is unlikely that Applicants would have
suffered
physical harm in the presence of the members of the SAPS. In
reference to the screenshot of a Video footage referred to
in
Annexure FA7 in the Applicants’ affidavit, The Respondent avers
that “
the
said photograph depicts
people
having a conversation in a civilized manner”
[6]
.
[16]
The
Respondent contends that the Applicants have failed to establish a
clear right in the absence of a trading licence. They dispute
the
validity of the wholesale licence submitted by the Applicants with
their replying affidavit and averred that even though the
registration number of the business is the same, but the licence was
issued in favour of a different company, Rumpet Oils. They
aver that
if the Applicants’ claims were true that the Respondent took
over the premises of the Applicants, then the correct
remedy for the
Applicants would have been a spoliation application to restore
possession.
Urgency
[17]
Rule
6(12)(b) of the Uniform Rules provides that, “
In
every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant must set forth
explicitly the circumstances which is averred that render the matter
urgent and the reasons why the applicant claims that applicant
could
not be afforded substantial redress at a hearing in due course.”
[18]
The
Applicants averred in its founding affidavit that the actions of the
Respondent are continuous and raises a serious threat of
irreparable
harm to the Applicants, its employees and its business
infrastructure. According to the Applicants if they were to
bring
this application in the ordinary course, opposed trial dates were
only available approximately more than 7 months from now
and he
believes that by which time the “
threats
of the respondent will, in all likelihood, have culminated in serious
harm for the applicants, its employees and infrastructure”.
The Applicants submitted that they will accordingly not receive
substantial redress if the matter is not heard as one of urgency.
[19]
The
Respondents disputed that the matter was urgent. They contended that
the urgency is self is self-created and that its intended
to silence
the Respondents and indirectly trying to legitimise the Applicant’s
illegal business through a Court Order. The
Respondents avers that
they were only having a peaceful engagement with the Applicants and
denied any threats of violence or physical
harm. They asked the Court
to view the application as an abuse of the Court process and that the
application be struck off with
costs on an attorney and client scale.
[20] This
matter concerns an alleged violation of the human right that is
protected in our Constitution.
I therefore find that any alleged
threat to this right should be afforded a hearing by the Court.
Analysis
on the merits
[21] In
paragraph 4 to 6.2 of the Applicants’ Notice of Motion, the
Applicants are seeking
that a Rule Nisi be issued calling upon the
Respondents to show cause why the interim interdict should not be
confirmed on the
return date. Respondents counsel argued that
the
Rule Nisi
procedure does not apply in this case because
there is no pending litigation between the parties and the operation
of the interdict
will have a final determination of the relationship
between the parties. The Respondents have been duly served with the
Application.
The Respondents have filed their answering affidavit and
the Applicants have also filed their replying affidavit. I fully
agree
with this argument. The next question then for determination is
whether the Applicants have made out a case for a final interdict.
[22]
Harms
[7]
provides that an interdict is final if the court order is based upon
a final determination of the rights of the parties to the
litigation.
The relief sought in this matter is a prohibitory interdict and if
granted, it will have a final effect on the Applicants
and the
Respondents. As such the requirements of Uniform Rule 6(12)(c) do not
apply
in
casu
,
I am of the view that the matter is ripe for determination for a
final interdict in that, even though the Applicants had sought
an
interim order, however, in their founding Affidavit
[8]
the requirements addressed are for a final interdict.
[23]
In
Setlogelo
v Setlogelo
[9]
the Court set out the following requirements for a final interdict,
and these have since become trite in our law:-
a)
A
clear right on the part of the applicant.
b)
An
injury actually committed or reasonably apprehended.
c)
The
absence of any other satisfactory remedy available to the
applicant.
Clear
right
[24] The
Applicants averred that the business and its employees have a clear
right not to be
prevented from executing its business operation and
economic endeavours. They have a right to conduct business unhindered
by the
unlawful conduct of the Respondents. The applicants’
employees have the right not to have their space of work, from which
they sustain their families unlawfully blockaded and shut down by the
Respondent. Counsel for the Applicants in his heads of argument
submitted that the Applicants and its employees have the right to
freedom from violence in terms of section 12(1) of the Constitution.
[25] The
Respondents argued that the Applicants do not have a clear right for
purposes of an
interdict because they do not hold a wholesale licence
to operate a petroleum business and that the law does not countenance
unlawful
conduct.
[26]
In
order to establish a clear right, the Applicants have to prove on a
balance of probability, facts upon which in terms of substantive
law
establish the right relied on.
[10]
Our country is a democratic state founded on the advancement of human
rights guaranteed in our Constitution and the rule of law.
The
Applicants’ right to freedom and security is guaranteed in our
constitution and constitute a clear right. The argument
by the
Respondents that a clear right is determined by means of possession
of petroleum wholesale licence is clearly misplaced.
Whether or not
the Applicants are in possession of a wholesale license or not cannot
be a requirement for them to protect their
rights entrenched in the
constitution. As averred by the Respondents, the petroleum business
is regulated by the Petroleum Act
under the Department of Minerals
Resources and Energy. Any noncompliance with the Act should be dealt
with by the relevant bodies.
An
injury actually committed or reasonably apprehended.
[27]
In
NCSPCA
v Openshaw
[11]
,
the SCA held that an interdict is not a remedy for a past invasion of
rights but is concerned with present or future infringements.
The
Court further held that:-
“
An
interdict is appropriate only when future injury is feared. Where a
wrongful act giving rise to the injury has already occurred,
it must
be of a continuing nature or there must be a reasonable apprehension
that it will be repeated”.
[28] The
Applicants averred that they fear for the safety of its employees and
destruction of
their infrastructure, there is also a real possibility
that there will be a significant loss in the Applicants revenue. It
is not in dispute that the Respondents sent all those WhatsApp
messages to the Applicants. The Respondents’ counsel submitted
that Case Law dictates that, the Court should not be hasty to make a
finding of hate speech or violence. He submitted that just
because
the tone of the message is angry, it does not necessarily mean that
violence or harassment is to ensue.
[29]
The
Respondent denies that he has threatened the Applicants or used any
violence against the employees. He described what had been
taking
place as “
people
having a conversation in a civilized manner”.
This shows a lack of insight on the part of Respondents as to how the
Applicants perceived his conduct.
Chief
Lesapo v North West Agricultural Bank
[12]
the Constitutional Court held that:-
“
The
right of access to court is indeed foundational to the stability of
an orderly society. It ensures the peaceful, regulated
and
institutionalized mechanisms to resolve disputes, without resorting
to self-help. The right of access to court is a bulwark
against
vigilantism, and the chaos and anarchy which it causes.
Construed in this context of the rule of law and the principle
against self-help in particular, access to court is indeed of
cardinal importance.
”
[30] I
mention this judgment taking into account that the Respondents are
trying to make sure
that the Applicants stop operations because they
believe that they do not have a Wholesale licence. It is important to
note that
the Respondents have visited the premises of the Applicants
twice already to demand that he produces a valid licence or close the
business. This function that the Respondents have taken upon
themselves is a function that falls within the regulatory body in
the
petroleum industry. This is tantamount to the Respondent taking the
law into its own hands which should not be allowed in a
country
governed by a rule of law.
[31] The
Respondents further argued that each time that they attended to the
Applicants’
premises, they were in the company of the members
of the SAPS. What is puzzling in this scenario, is that there is no
proof that
the Respondent opened any case against the Applicants at
the Police Station, yet the police accompanied them to the
Applicants’
business premises without a search warrant. In the
absence of a case docket opened or search warrant to enter and search
the premises
of the Applicants amounts to harassment. The members of
the police services must always operate with the confines of the
law.
[32] Further,
the fact that the Applicants had to call private security as
confirmed by Mr Mark
Haarhoff, to remove the Respondents from the
premises clearly shows the Respondents conduct cannot be associated
with people having
a conversation in a civilized manner. The WhatsApp
messages sent to the Applicant’s qualifies as a threat, for
example the
Respondent states that
“you are making a big
mistake, let’s see what is going to happen”
. Any
reasonable person receiving this kind of a message will not perceive
this message to be a peaceful engagement between two
business
persons.
[33] In
view of the above, I’m satisfied that the Applicants have
successfully proved on
a balance of probabilities that there is
reasonable apprehension of harm.
No
alternative relief
[34] It
was argued on behalf of the Respondents that the Applicants have
already reported the
matter to the police and that they need to allow
the police to do their job. The Applicants averred that there is no
alternative
remedy available as they have tried to reason with the
Respondents and there is no indication that the Respondents have any
intention
to desist from their current unlawful activities.
[35] I
take note of the fact that the Respondents’ visit to the
Applicants premises on
30 January 2024 was after the Applicants had
opened a charge of intimidation against the Respondent. The
Respondent seemed unmoved
by the fact the Applicants have opened a
case of intimidation against him. I therefore do not see how
reporting the case to the
police will assist the client in preventing
further altercations with the Respondents. I’m therefore
satisfied that the Applicants
have no other alternative remedy that
will sufficient redress for the infringements.
Conclusion
[36]
The
SCA in
Liberty
Group Ltd & others v Mall Space Management
[13]
the Court held that once the Applicant has established the three
requisite elements for the grant of an interdict, the scope, if
any,
for refusing relief is limited and that there is no general
discretion to refuse relief.
[37] In
the result, it is ordered that: -
1.
In
terms of rule 6(12) of the uniform rules of court, the matter is
allowed to be dealt with as an urgent application.
2.
The
First, Second, Third and fourth Respondents are interdicted and
restrained from unlawfully barricading, obstructing, interfering
with, threatening, intimidating, harassing or assaulting the
Applicants, its employees and labourers, its subcontractors and
suppliers
and all other personnel (collectively referred to as the
protected persons) in relation to the work of the applicants known as
Strathmore Farm, Kaalrug Road, Malelane, 1320, Chamotte Mine
(hereinafter “the Applicants’ premises) comprising of
bulk and retail sales in particular that:
2.1
Interdicting
and restraining the First, Second, Third, and Fouth Respondents,
collectively and individually, and any persons or
organizations
acting through, under or in concert with or acting in solidarity with
them from entering or interfering or otherwise
disrupting or causing
the cessation of the business and commercial endeavors by the
Applicants.
2.2
Interdicting
and restraining the First, Second, Third and Fourth Respondents,
collectively and individually and any persons or organizations
acting
through, under or in concert with or acting in solidarity with them
from
entering, or
blockading or obstructing the site of the Applicants at the business
premises of the Applicants or congregating within
500 metres of the
business premises of the Applicants or within 500 metres of any of
the Applicants’ employees working on
the Applicants business
premises.
2.3
Interdicting
and restraining the First, Second, Third and Fourth Respondents,
collectively and individually and any persons or organizations
acting
through, under or in concert with or acting in solidarity with them
from preventing the protected persons from entering
or leaving the
business premises of the Applicants and from holding hostage or
taking captive the business premises of the Applicants.
2.4
Interdicting
and restraining the First, Second, Third and Fourth Respondents,
collectively and individually and any persons or organizations
acting
through, under or in concert with or acting in solidarity with them
from
encouraging or
directing any persons to commit the acts as set out in any part of
this application or order.
2.5
Interdicting
and restraining the First, Second, Third and Fourth Respondents,
collectively and individually and any persons or organizations
acting
through, under or in concert with or acting in solidarity with them
from in any way disrupting the Applicants’ business
or economic
endeavours.
2.6
Interdicting
and restraining the First, Second, Third and Fourth Respondents,
collectively and individually and any persons or organizations
acting
through, under or in concert with or acting in solidarity with them
from tampering, damaging or destroying any of the Applicants’
property or infrastructure at the Applicants’ business
premises.
2.7
Ordering
the Fifth and Sixth Respondents to ensure compliance with the terms
of this order by the First, Second, Third or Fourth
Respondents or
persons or organizations acting through, under or in concert with or
acting in solidarity with them.
2.8
Interdicting
and restraining the First, Second, Third and Fourth Respondents
collectively and individually and any persons or organizations
acting
through, under or in concert with or acting in solidarity with them
from intimidating, harassing, verbally abusing, or threatening
the
Applicants, their employees as well as any clients or subcontractors
at the Applicants’ business premises.
3.
Directing and ordering the Fifth and
Sixth Respondents to:
3.1
Give
effect to the relief set out above.
3.2
Prevent
any of the Respondents from breaching the terms of this order.
3.3
Disburse,
remove, eject, or arrest persons who act in any unlawful manner
and/or contrary to this order and/or act in a manner as
to contravene
or reduce the effectiveness of this order.
3.4
If
necessary, utilize the service of the Public Order Policing Unit of
the SAPS to maintain law and order in the event of the Respondent’s
breach of this order.
JL
BHENGU
ACTING
JUDGE OF HIGH COURT (MPUMALANGA)
For
the Applicants:
Adv HF Fourie
Cronje
De Waal - Sikhosana Attorneys
For
the Respondents: Adv T
Ngwenya
Yethu
Lushaba Attorneys
Date
Heard
:
06 February
2024
Date
Delivered :
22 February 2024
[1]
Police
Docket, Case number: CAS 64/1/2024, Annexure FA 11
[2]
Statement
by Mr Nyambi, Annexure FA 11 p3
[3]
Respondents’
answering affidavit, Annexure NZ4
[4]
Screen
shots of a video footage showing the police, Respondents and other
unknown males at the Applicants depot, Annexure FA7
[5]
Confirmatory
affidavit by Mr Mark Haarhoff, p102-104 Applicants’ founding
papers
[6]
Respondent’s
answering affidavit, p19
[7]
D Harms Civil Procedure in the Superior Courts (2022 – Service
Issue 75) para A5. 2
[8]
Applicant’s
Founding Affidavit, para 88 - 101
[9]
Setlogelo v Setlogelo
1914 AD 221
at 227
[10]
D Harms Civil Procedure in the Superior Courts (2022 – Service
Issue 75) para A5. 3
[11]
NCSPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at para
[20]
[12]
Chief Lesapo v North West Agricultural Bank and Another
[1999] ZACC 16
;
2000 (1) SA
409
(CC);
1999 (12) BCLR 1420
at para 22
[13]
Liberty Group Ltd & others v Mall Space Management CC
[2019]
ZASCA 142
,
2020 (1) SA 30
(SCA) para 22