IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NUMBER: 3424/2024
In the matter between
PETREFUEL (PTY) LTD APPLICANT
Formerly Quest Petroleum (Pty) Ltd
Registration Number 2013/056996/07
and
TARSICA INVESTMENTS NO 7 CC FIRST RESPONDENT
(Registration number 2002/043557/23)
PANDELIS STERIANOS SECOND RESPONDENT
CONSTANTINOS PSOMAS THIRD RESPONDENT
SHERIFF OF THE HIGH COURT, MALMESBURY FOURTH RESPONDENT
JUDGMENT
Date of hearing: 8 November 2024
Date of judgment: 11 November 2024
BHOOPCHAND AJ:
1. The Applicant , a fuel wholesaler , previously known as Quest Petroleum,
seeks a declaration that the First to Third Respondents are in contempt of the
order of this Court issued on 28 February 2024 (“the original order” ). The
original order emanates from an application to vindicate the Applicant’s four
petrol pumps, three underground tanks (‘the equipment”) and branding
material from a petrol station in Avondale, Atlantis, Cape West Coast, owned
by the First Respondent (“Tarsica”). The Applicant supplied petroleum
products exclusively to Tarsica under a retail fuel supply agreement (“RSA”)
concluded on 1 March 2018 . It was common cause that the Applica nt owned
the equipment.
2. The Second and Third Respondents, Pandelis Sterianos (“Sterianos”) and
Constantinos Psomas (“Psomas”) are brothers. They manage the petrol
station. The brothers obtained their fuel from an alternate supplier for an
undefined period, culminating in the cancellation of the RSA at the beginning
of 2024. They continued to use the Applicant’s branding and equipment . The
First to Third Respondents shall be referred to collectively as Tarsica unless
the context requires each to be named. The Fourth Respondent is the Sheriff
of the High Court, Malmesbury, against whom the Applicant seeks no redress.
In addition to the declaration of contempt, the Applicant seeks a wholly
suspended imposition of a fine against Tarsica and 30 days of incarceration
for Sterianos and Psomas.
3. The original order enabled the Applicant to access the petrol station's
premises and remove its branding and equi pment. The Applicant has since
removed its petrol pumps and branding material. This application pertains to
the three underground tanks . The presence and removal of the tanks are
controlled by statute. The owner, in this instance, the Applicant, bears the risk
for any leaks and spillage of fuel into the ground. Removing the tanks is an
expensive process. Municipal and provincial approval ha s to be obtained, and
a controlled process has to be followed.
4. Tarsica sought leave to appeal the original order to this court and the
Supreme Court of Appeal without success . An appeal to the Constitutional
Court is pending. 1 In the interim, Tarsica invited the Applicant to remove the
tanks, subject to advanced notification and a rollout programme. With the
assistance of the Sheriff, the Applicant had placed locks on the entry hatches
to the underground tanks only to find that Tarsica removed them . Tarsica
continues using the tanks.
INTERPRETATION OF THE ORDER
5. The original order was followed by the written reasons provided on 22 March
2024 (“the original judgment”). The core issue in this application arises from
the meaning attached to the phrase “secure and/or remove” as it is used in
paragraph 3 of the original order:
“Following the expiry of a period of thirty calendar days from the date of this
order, the Applicant is entitled to secure and/or remove all of its equipment at
the premises, and the First Respondent must afford the Applicant reasonable
access to the premises in order to do so.”
6. The Applicant relies upon a disjunctive interpretation , whereas Tarsica
contends for a conjunctive one. Interpretation begins from the outset . The
proper approach to interpretation is to read the words used in the context of
the document as a whole and in light of all relevant circumstances attendant
upon its coming into existence .2 The court in Endumeni explained that this is
how people use and understand language. The court gave the example of a
nanny holding a baby over a tub of water who is asked to “drop everything
and come running”. The nanny would know that the instruction was not meant
to apply literally to the circumstances. 3 Whatever the nature of the document ,
consideration must be given to the ordinary rules of grammar and syntax , the
context in which the provision (the phrase in the circumstances of this case)
1 The Applicant alleges that the leave is defective as it is out of time
2 Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13;
[2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012) at para 24
3 Endumeni at footnote 34
appears, the apparent purpose to which it is directed and the material known
to those responsible for its produ ction. Where more than one meaning is
possible, each possibility has to be weighed against a ll these factors . The
process is objective , not subjective. A sensible meaning is preferred to one
that leads to insensible or unbusinesslike results or undermines the apparent
purpose of the document.4 Construction is a unitary exercise.5
7. The principles of interpretation in Endumeni apply equally to the interpretation
of judgments and orders .6 In interpreting a judgment or order, the court’s
intention should be ascertained primarily from the language of the judgment or
order. As in the case of interpreting a document , the judgment or order and
the court’s reasons for giving it must be read as a whole to ascertain its
intention.7 The intention of the Judge giving the order has to be established
from the judgment itself. It serves no purpose to second guess the thinking of
the Judge when he made the order. The starting point is to determine the
manifest purpose of the order.
8. It is necessary to place the order in proper perspective and to consider the
context in which it was made .8 There is no essential difference between an
‘order’ and a ‘judgment’. In some cases, an ‘order’ refers to a decision given
upon relief claimed in an application on notice of motion, petition or other
machinery recognised in practice. In contrast, a ‘judgment’ refers to a decision
given upon relief claimed in an a ction. When used in the general sense, the
word' judgment' comprises both the reasons for the judgment and the
judgment or order.9
4 Endumeni at para 18
5 Endumeni at para 19
6 HLB International (South Africa) v MWRK Accountants and Consultants (113/2021) [2022]
ZASCA 52; 2022 (5) SA 373 (SCA) (12 April 2022)
7 HLB at para 26
8 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012]
ZASCA 49; 2013 (2) SA 204 (SCA) para 14; Van Re nsburg and Another NNO v Naidoo and Others
NNO; Naidoo and Others NNO v Van Rensburg NO and Others [2010] 4 All SA 398 (SCA); 2011 (4)
SA 149 (SCA) para 43 et seq, HLB supra at para
9 Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (AD) at 715B-F
9. The manifest purpose of the judgment is to be determined by considering the
relevant background facts that culminated in it s being made.10 A fairly recent
illustration of the linguistic, contextual and purposive approach to the
interpretation of a judgment or order is to be found in Elan Boulevard (Pty) Ltd
v Fnyn Investments (Pty) Ltd, in which it was said that ‘[a]n order is merely the
executive part of the judgment and, to interpret it, it is necessary to read the
order in the context of the judgment as a whole’.11
10. The verb “secure” means to fix or attach something firmly so that it cannot be
moved or lost. An alternate meaning is to suc ceed or obtain something ,
especially when it is difficult . The meaning of “remove” is to take something
away or off from the position occupied . Both words can have other meanings,
emphasising the importance of context when seeking the definition of words.
The definitions of these words were unashamedly sourced from Google’s
Oxford Languages Dictionary in line with the exhortation to attach the ordinary
meaning to words. “And” and “or” serve as conjunctions in a sentence. The
word “and” in a sentence combin es things or elements, connects ideas, or
adds emphasis. The word “or” presents alternatives, indicates uncertainty or
introduces consequences.
11. The Applicant introduced “to secure and/or remove” in paragraph 2.1 of its
notice of motion to the original application. The Applicant sought immediate
access to the petrol station to secure and/or remove all of the Applicant’s
branding and equipment within the meaning of the RSA . In paragraph 2.2 of
the relief sought, the Applicant ask ed, on no less than 48 hours’ notice after
that, further access to the premises to remove any of the branding and
equipment that the Applicant could not remove the first time around. 12 The
Applicant’s intention, as evinced in the notice of motion, was to remov e the
equipment within a specified period.
10 Cross-Border Road Transport Agency para 22, see also Speaker, National Assembly and
Another v Land Access Movement of South Africa and Others [2019] ZACC 10 (CC); 2019 (6) SA 568
(CC) para 43, HLB at para 27
11 Elan Boulevard (Pty) Ltd v Fnyn Investments (Pty) Ltd [2018] SCA 165; 2019 (3) SA 441
(SCA) at para 28
12 Para 9 of the judgment
12. In evaluating the merits of the relief sought by the Applicant, the Honourable
Saldanha J state d that he was “more than satisfied that the Applicant
established its right t o remove its branding and equipment as a result of the
termination of the RSA ” and so too based on the common law. The relief
granted by the court was made on that premise, i.e., that the Applicant would
remove its equipment.13
13. The judgment considered Counsel's submission that the tanks could only be
removed once permission and clearance were obtained from the municipality
and provincial government to ensure that it was done safely and there was no
environmental contamination. Applicant’s Counsel asked that Tarsica be given
30 days to obtain alternate equipment and permission for its use. The 30 days
were also intended for the Applicant to obtain the statutory clearance for the
lawful extraction of the tanks from the ground. The Court requested the parties
to agree to a schedule for the safe and lawful removal of the equipment. The
parties were unable to broker a mutually acceptable arrangement. Tarsica’s
Counsel contended that in the absence of agreement, the relief had to be
equitable, i.e., both parties' interests had to be considered . It was left to the
Court to craft the final equitable order, which incorporated part of the relief
sought in the Applicant’s notice of motion, including the impugned phrase. The
Court was “particularly mindful” of giving Tarsica time to source its equipment
as it used the tanks to store fuel from its alternate source. The Court added
paragraph 5 to the order to ensure the Applicant could access the tanks and
monitor their safe usage. 14
14. On reading the judgment as a whole, it is clear that the relief sought in the
notice of motion was directed at securing and removing the tanks. It is also
apparent from the judgment that the relief was directed at removing the tanks.
Removing the tanks required reciprocal obligation s, i.e., the procurement of
alternative equi pment by Tarsica and the Applicant obtaining the necessary
permissions. The judgment envisaged a situation where the tanks would be
13 Paras 83 and 84 of the judgment
14 Para 84 of the judgment under the heading: “The Relief”
removed after a mutually agreed plan was in place . The plan could only be
effected once the statutory clearances were obtained.
THE CONTENTIONS OF THE PARTIES
15. The Applicant identified three meanings of the phrase “to secure and/or
remove”: i.e., to secure, to remove, and to secure and remove. The applicant
contended that the 30 days prescribed in the original order had expired, and
Tarsica prevented the Applicant from securing its tanks . Tarsica had also
impeded the Sheriff from rendering the Applicant assistance under paragraph
4 of the order. The Applicant contended that Tarsica had acted in contempt of
the order since 19 August 2024, when it had learnt that the Supreme Court of
Appeal had refused to grant Tarsica leave to appeal the original judgment.
16. In its answer to the founding affidavi t, Tarsica protested the Applicant’s
intention to secure the tanks and not to remove them . Tarsica contended that
the Applicants had breached the tenor of the original order . The meaning that
Tarsica attached to paragraph 3 of the order accords w ith th is Court’s
interpretation. Tarsica repeatedly invited the Applicant to remove its equipment
whilst it sought leave to appeal the original judgment. On 29 February 2024,
Tarsica communicated that notwithstanding its application for leave to appe al
the original judgment, it wished to proceed with steps to remove and replace
the Applicant’s tanks with those to be supplied by its new franchisor. Tarsica
stated further that the costs for the safe removal of the tanks were for the
Applicant's account. Tarsica estimated the costs of removing the tanks to be
over R200 000, which is much more than their value. Tarsica stated that it
awaited the Applicant to supply it, without delay, the proposed rollout. Tarsica
offered to rent or purchase the tanks as an alternative. The Court is cognisant
of the Applicant’s unsuccessful attempts after 14 August 2024 to lock the
hatches to the tanks and Tarsica’s subsequent removal of the locks. Tarsica
contended that the original order had not envisaged th e situation that
eventuated. It is difficult to disagree with the position adopted by Tarsica.
17. The papers are silent on whether the Applicant ha d sought the statutory
clearance to remove the tanks safely . The Court can assume that the
Applicant did not obtain them, nor did it provide Tarsica with a proposed plan
to extract the tanks. Tarsica contended that the Applicant sought to collude
with the landowner to cancel the lease of their premises . The Applic ant
intended to keep the equipment in place . In its reply, the Applicant stated that
the original order entitled it to secure and/or remove its equipment. Nothing
about its terms obliged the Applicant to remove the tanks. The Applicant
persisted in its contention that using the words “entitled” and “secure and/or
remove” gave it a choice. After the expiry of 30 calend ar days, the Applicant
was entitled to either secure and remove its tanks or secure them.
18. The Applicant declared, for the first time in its reply, that it intended to take
possession of its equipment, and its preference was to retain it in position and
not remove it. This preference arose when Tarsica’s landlord informed Tarsica
that it intended to end Tarsica’s lease of the premises. The Applicant indicated
that it wished to await the termination of the lease before deciding on the fate
of the tanks. The Applicant denied that its actions aimed to lock Tarsica out of
its business. The Applicant had raised Tarsica’s dispute with its landlord in the
original application. The landlord had cancelled the lease agreement and
demanded that Tarsic a vacate the premises by 29 February 2024 , nine
months since this application was heard. The judgment states that the
Applicant pointed out the permutations that could arise from the termination of
Tarsica’s lease, none of which, in the Honourable Judge’s view, were relevant
to the relief sought by the Applicant. 15 The Applicant states that it does not
intend to hinder Tarsica’s business, but Tarsica no longer has any rights to do
so by using the Applicant’s equipment.
19. The Applicant submitted that Tarsica had raised the issue in its application for
leave to appeal the original order. Tarsica contended that the Applicant ’s
conduct was a ruse to take illegal or unlawful possession of its business. The
Court remarked that it was hardly a ruse but a right enjoyed by the Applicant
15 Para 60, judgment
as the equipment owner. This Court notes that d ifferent considerations apply
when a court considers leave to appeal and when it has to interpret the order
to determine whether there has been contempt of the order.16
20. The Applicant’s approach to interpreting the order is untenable. It has limited
itself to applying a textual meaning , contradicting the relief sought in the
original notice of motion , where it proposed a two -stage access procedure to
remove its equipment. The Applicant has convenient ly failed to recognise the
context within which the order was granted and the purpose of the relief thus
ordered. As the Applicant has failed to interpret the order correctly , it has no
basis to hold Tarsica responsible for the breach of the order. The Applicant
cannot succeed with its prayer for a declaratory order of contempt . That
should be the end of the application. However, two further issues require this
court’s attention.
21. The application was brought urgently under rule 6(12). The only contention
the Applicant makes to support urgency is that Tarsica has been in contempt
of the original order since 19 August 2024. The Applicant contended baldly
that by its very nature, the relief is urgent. The wholly suspended order sought
was intended to be both coercive in the interests of the Applicant’s court-
ordered rights and vindicatory of this court's authority. The application was
initiated on 18 October 2024, two months after the alleged urgency arose. The
issue of urgency altogether e scaped Tarsica’s attention in its answering
affidavit and written and oral submissions. The Applicant does not make out a
case for urgency , and this application fails to be dismissed on that ground
alone.
THE ORDER FOR CONTEMPT
22. An applicant seeking an order of contempt must show that an order was
granted against the contemnor, the alleged contemnor was served with the
order or had knowledge of it, and the alleged contemnor failed to comply with
16 HLB (supra) at para 24
it. Once the preceding elements are established, wilfulness and mala fides are
assumed. The Respondent bears the evidentiary burden of dispelling its
alleged wilfulness and mala fides. Contempt would have been established if
the Respondent failed to discharge this burden.17
23. The Applicant sought a declaration that Tarsica, Sterianos, and Psomas were
in contempt of paragraphs 3 and 4 of the February order. The interpretation of
the original order does not accord with the meaning that the Applicant seeks
to attach to it. As alluded to, the order envisaged the removal of the tanks and
not their retention. The order , properly interpreted , imposed reciprocal
obligations on the parties to facilitate the removal of the tanks . The Applicant
has not complied with its obligations. Tarsica is not in contempt of the original
order.
24. The Applicant further sought a wholly suspended ancillary order for Tarsica to
pay a fine of R200 000 and for Sterianos and Psomas to be committed to a
period of imprisonment of 30 days. The fine and committal would eventuate if
the First to Third Respondents impeded or interfere d with the Applicant's
access to secure and/or remove the Applicant’s equipment. The Applicant thus
sought a c oercive rather than a punitive order . It sought to elicit the First to
Third Respondents' compliance with the original order, as it interpreted it , and
dissuade any offensive conduct . A punitive sanction imposes the sentence
immediately.18
25. Whilst the Applicant defined the circumstances in which the sentence would
be invoked, it failed to justify the sentence sought in its affidavits or written
and oral arguments. The Court consider s the nature and severity of the
contempt, the impact on the administration of justice, and the need to uphold
the Court's authority. The applicant must present a compelling case for the
proposed sentence, and the court will exercise its discretion to determine an
17 Fakie N.O. v CCII Systems (Pty) Ltd [2006] ,ZASCA 52 ; 2006 (4) SA 326 (SCA) (Fakie) ,
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC
18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) at paras 9 and 37 (“Secretary of
the Judicial Commission of Inquiry”)
18 Secretary of the Judicial Commission of Inquiry at para 47
appropriate sanction . Whilst a coercive order of contempt incidentally
vindicates a Court’s authority, that order becomes punitive once the
Respondent fails to comply. Thus, equal rigour is involved i n imposing
coercive orders that entail imprisonment and the restriction of an individual’s
liberty.
26. An Applicant can rever t to the Court once a coercive contempt order is
breached to facilitate an appropriate sentence. However, an Applicant seeking
the imposition of a fine or imprisonment in a wholly suspended coercive
sentence has to justify the punishment sought. There is no reason why the
factors identified by the apex Court for the imposition of punitive contempt
orders should not apply in determining a coercive order in so far as it seeks
the imposition of a fine or imprisonment. These include , among others, the
circumstances leading to the contempt, the nature of the offence, the nature of
the breach, whether the breach is ongoing, and sanctions imposed in similar
contraventions. In exercising its discretion, a Court will impose a just and
equitable sanction.19
CONCLUSION
27. The Applicant sought an urgent declaratory order for contempt and wholly
suspended coercive ancillary relief, entailing a fine for the First Respondent
and imprisonment of the Second and Third Respondents for further breaches
of the original order issued in February 2024. The circumstances informing the
original order emanate from the Applicant’s contractual and common law right
to vindicate its branding material and equipment . The ownership of the
materials and equipment was not in dispute. The Applicant had already
retrieved its branding material and petrol pumps , and the application for
contempt related to the three underground petrol tanks alone. The tanks'
extraction was subject to statutory municipal and provincial clearances to
ensure safety and prevent environmental contamination.
19 Secretary of the Judicial Commission of Inquiry at paras 127 and 128.
28. In adjudicating the application for declaratory relief, the Court undertook an
interpretation of the original order to determine whether there was contempt of
the order. The Court interpreted the order by following the recognised rules of
interpretation of legal documents in general and judgments and orders in
particular. The Court formed an overall impression of the relief sought by
analysing the disputed meaning of the phrase “secure and or remove” used in
paragraph 3 of the order. The Court considered the meaning of the phrase in
the context of the whole judgment, the circumstances wherein it came into
being and the purpose for its inclusion in the order . Although it was set out
sequentially in this judgment, the textual, contextual, and purposive
interpretative exercise was conducted unitarily. The characterisation of the
exercise as obtaining an overall impression equates to a unitary or holistic
view of interpretation.20
29. The Court establish ed the meaning of the words used in the phrase “secure
and/or remove” singularly and cumulatively before contextualising it to the
original judgment to determine the circumstances that gave rise to its usage
and the purpose of its inclusion in the order. The original judgment confirmed
the Applicant’s entitlement to remove its branding and equipment , both
contractually and in terms of the common law. The original judgm ent then
proceeded to determine how the removal of the tanks should proceed. The
parties were invited to jointly propose a stratagem for the safe and lawful
removal of the tanks. They failed to agree. The Court sought an equitable
solution. It was acknowle dged that Tarsica would continue using the tanks
until the Applicant secured and removed them. The Court ordered Tarsica to
provide access to the Applicant to monitor the tanks and mitigate any risk from
its ongoing usage. The original order allowed the parties thirty days to prepare
for the removal of the tanks, Tarsica to source replacement equipment and the
Applicant to obtain the statutory clearances.
20 See the exchange between two of the Honourable Justices of the Constitutional Court on the
approach to interpretation in Independent Community Pharmacy Association v Clicks Group Ltd and
Others (CCT 11/22) [2023] ZACC 10; 2023 (6) BCLR 617 (CC) (28 March 2023) at paras 168-205
and 238 et seq.
30. The relief ordered originally was directed at removing the tanks. There is no
evidence that the Appl icant has secured municipal and provincial
endorsement for their removal. Tarsica asserted that the Applicant intended to
secure the tanks, thereby locking them out of Tarsica’s usage and squeezing
them out of business. The order allowed Tarsica to use the tanks until they
were removed. The Applicant did not disclose in its founding affidavit it had
learnt of the landowner’s intention to terminate its lease with Ta rsica. The
lease agreement had allegedly been terminated i n February 2024. The
Applicant hedged its chances of negotiating the disposal of the tanks with the
new lessee. Tarsica asserted that it intended to challenge the termination of
the lease. The original judgment and orders did not contemplate a situation
where the Applicant would secure the tanks and not remove them. The
original order envisaged an equitable solution for both parties.
31. This Court, therefore, declines to declare that the First to Third Respondents
are in contempt of the original court order issued on 28 February 2024 . This
Court has also dealt with the coercive order of contempt sought by the
Applicant and its failure to justify its proposed sentence . In any event, the
Applicant failed to make out a case for urgency , and the application fell to be
dismissed on that ground alone.
COSTS
32. The original judgment refers extensively to the intemperate use of language
and the scandalous, vexatious, scurrilous, and abusive allegations directed at
the Applicant in general and the Applicant’s legal advisor who deposed to the
Applicant’s founding affidavit, in particular. Tarsica’s answering affidavit in the
original application was settled by Counsel, who represented it in this
application. The Court seriously considered the egregiousness and vexatious
accusations and the obstructive conduct adopted by Tarsica in the answering
affidavit but stopped short of imposing a punitive costs order against it.
33. Undeterred, Tarsica repeated some of the scurrilous accusations against the
Applicant’s legal manager in the papers filed in this application. Tarsica’s
Counsel, who settled the papers in th is application, repeated some of those
accusations in oral argument until the Court found it necessary to censure
him. This Court has also mulled over the necessity of protecting its processes
from abuse by litigating parties and legal practitioners. Fortunately, it would
seem that the latter are in the minority. Legal practitioners are obliged to
uphold the standard of practice in settling papers and show respect to their
fellow practitioners and the Court.
34. On the other hand, the Court has to weigh whether this application merits a
punitive costs order given that the Applicant has not made out a case for the
relief it sought or for enrolling it urgently. Counsel for Tarsica requested the
normal costs order and declined to have his fees assessed on a higher scale,
even though he appeared to be a se asoned practitioner. Counsel for the
Applicant did not pursue any punitive reduction in the costs that Tarsica would
be entitled to, even though the Applicant sought attorney -client costs arising
from the abusive and vexatious attacks directed at the Applicant if it prevailed.
35. The Court is satisfied that an order for costs on the party and party scale
without rewarding Counsel with a higher scale of fees is the appropriate order
to make in this application.
ORDER
36. The Court declines to declare that the First, Second and Third Respondents
are in contempt of paragraphs 3 and 4 of the order issued under case number
3424/2024 on 29 February 2024,
37. The application is dismissed with costs.
________________________
Ajay Bhoopchand
Acting Judge of the High Court
Western Cape Division
Cape Town
Judgment was handed down and delivered to the parties by e -mail on 11
November 2024
Applicant’s Counsel: Advocate D R Pietersen
Instructed by Joubert, Galpin & Searle
Counsel for the Respondents: Advocate B G Savvas
Instructed by MKA Attorneys