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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
Reportable
Case no: AR 293/22
In the matter between:
OVERROX TRADING 70 CC FIRST APPELLANT
(THIRD RESPONDENT IN THE COURT A QUO)
TRAFFORD ROAD CONVENIENCE
CENTRE(PTY)LTD SECOND APPELLANT
(FOURTH RESPONDENT IN THE COURT A QUO)
and
CONTROLLER OF PETROLEUM
PRODUCTS FIRST RESPONDENT
(FIRST RESPONDENT IN THE COURT A QUO)
MINISTER OF ENERGY SECOND RESPONDENT
(SECOND RESPONDENT IN THE COURT A QUO)
METRO SERVICE STATION (PTY) LTD THIRD RESPONDENT
(FIRST APPLICANT IN THE COURT A QUO)
I MANGAROO PROPERTIES (PTY) FOURTH RESPONDENT
LIMITED
(SECOND APPLICANT IN THE COURT A QUO)
UDS MOTORS CC FIFTH RESPONDENT
(THIRD APPLICANT IN THE COURT A QUO)
HARPERS HILLCREST AUTO CC SIXTH RESPONDENT
(FOURTH APPLICANT IN THE COURT A QUO)
Coram: OLSEN and NKOSI J, MOODLEY AJ
Heard: 29 November 2024
Delivered: 07 January 2025
ORDER
On appeal from: KwaZulu -Natal Division of the High Court, Durban (Shapiro AJ,
sitting as court of first instance):
[1] The appeal against the order refusing with costs the appellants' application for
an adjournment is dismissed.
[2] The appeal against the substitution order is upheld, and paragraph 2 of the
order of the court a quo is set aside.
[3] The appellants' applications for the site and retail licences are referred back to
the first respondent for reconsideration.
[4] Paragraphs 1 and 3 of the order of the court a quo are confirmed.
[5] Each party shall pay its own costs of appeal.
JUDGMENT
Nkosi J (Olsen J and Moodley AJ concurring):
Introduction
[1] This appeal emanates from an application that was brought by the third to
sixth respondents in the court a quo seeking to review two administrative decisions
('the review application'): first, the first respondent's grant of a site licence to the first
appellant and a retail licence to the second appellant, as well as the subsequent
decision of the second respondent to dismiss the third to sixth respondents' appeal
against such decision. The site and retail applications were in respect of the property
described as Erf 1 […] P[…], which is situated at 4[...] M[...] Road Pinetown. ('the
property').
Procedural background
[2] The appellants opposed the review application but failed to deliver their
answering affidavit thereto until the matter was set down for hearing on 12 October
2021 by the third to sixth respondents. Consequently, on 1 October 2021, some 12
days prior to the hearing of the matter, the appellants brought an application for an
adjournment ('the adjournment application'). They also sought an ancillary order
directing them to deliver their answering affidavit within 15 days of the date of the
adjournment order.
[3] By the time the adjournment application was launched, the delivery of the
appellant's answering affidavit in the review application was already approximately
16 months out of time. The explanation provided by the appellants for the delay was
that they had instructed their erstwhile attorney, who had since passed away, to
instruct counsel to draft their answer. They said they 'genuinely believed' that she
had done so and, thereafter, attended to the delivery thereof.
[4] The adjournment application was opposed by the third to sixth respondents,
and was argued before the court a quo on 12 October 2021 prior to the hearing of
the review application. The court a quo dismissed the adjournment application with
costs on the basis that the appellants had failed to provide an acceptable
explanation for their failure to deliver timeously their answering affidavit in the review
application.
[5] Following its dismissal of the adjournment application, the court a quo
proceeded to determine the review application on the basis of the pleadings placed
before it. These included the third to sixth respondents' founding and supplementary
affidavits, together with the annexures thereto, as well as the first and second
respondent's explanatory affidavit, together with the record delivered by the first and
second respondents comprising some 478 pages.
[6] After due consideration of the issues raised by the third to sixth respondents
in the review application, the court a quo granted an order reviewing and setting
aside the aforesaid decisions of the first and second respondents. In addition to such
order, the court a quo granted mero motu an order substituting the first and second
respondents' decisions with its own decision dismissing the appellants' applications
for the granting of the site and the retail licences in respect of the property.
[7] Aggrieved by the aforesaid orders of the court a quo, the appellants applied
for leave to appeal against both orders, but their application was refused by the court
a quo . They then petitioned the Supreme Court of Appeal (SCA), and their petition to
that Court was successful. With leave thus obtained, the appellants are now
appealing to this court against the aforesaid orders of the court a quo .
Factual background
[8] The factual background to the matter, briefly stated, is as follows: in June
2016, the third to sixth respondents learned of the appellants' applications for site
and retail licenses ('the licenses') for the property under the Petroleum Products Act
120 of 1977 ('the Act'). The first respondent approved the licenses on 9 November
2017.
[9] Dissatisfied with the decision, the third to sixth respondents appealed to the
second respondent, as provided for in the Act. However, their appeal was dismissed
by the second respondent. Aggrieved by the dismissal of their appeal by the second
respondent, the third to sixth respondents launched review proceedings in the court
a quo to challenge the decisions of both the first and second respondents.
[10] At the time when the review proceedings were initiated, the respondents were
represented by Sue Moodley Attorneys, which was a sole practitioner practice.
During or about January 2021 Ms Moodley passed away having not delivered the
appellants' answering affidavit in the review application. According to Robert Kisten,
who is the representative of the appellants, the appellants became aware during or
about September 2021 that an answering affidavit on their behalf had not been
delivered in the review app lication.
[11] As indicated in the preceding paragraphs of this judgment, the court a quo
was not satisfied with an explanation provided by the appellants for their failure to
deliver timeously their answering affidavit in the review application. Consequently, it
refused their application for adjournment with costs, and granted the review
application. It also granted mero motu an order substituting the decisions of the first
and second respondents with its own decision dismissing the appellants' applications
for the granting of the site and retail licenses.
Issues on appeal
[12] The appeal presents two primary issues for determination by this court. First,
whether the court a quo erred in refusing the appellants' application for an
adjournment, thus preventing them from filing their answering affidavit. Second,
whether the court a quo was justified in issuing a mero motu substitution order in the
review application.
Discussion
[13] Against the factual background set out above, I am now proceeding to
consider the issues which form the basis of the appeal as fully set out hereunder.
Bearing in mind that the appeal is against two separate orders of the court a quo , I
think it will not only be appropriate but also just and equitable, for this court to
determine the appellants' grounds of appeal against each order separately. This is
more so as it is common cause that the substitution order was not part of the relief
that was sought by the third to sixth respondents in the proceedings appealed
against.
Issue 1: Refusal to grant an application for adjournment
[14] Notably, the refusal of the court a quo to grant the appellants' application for
adjournment was preceded by an elaborate analysis by that court of the appellants'
explanation of their failure to deliver their answering affidavit timeously. Based on its
analysis of the appellants' explanation, the court a quo found that the appellants had
failed to provide an acceptable explanation for their failure to deliver their answering
affidavit timeously.
[15] Aggrieved by the decision of the court a quo , the appellant's contention was
that the refusal of the court a quo to grant their application for adjournment depr ived
them of an opportunity to file an answering affidavit in the review application under
the circumstances where:
(a) they had no knowledge of and/or control over the conduct of Ms Moodley, who
was their erstwhile attorney and is now deceased, yet the dilatoriness of Ms Moodley
was ascribed to them;
(b) the refusal of an adjournment not only had the effect of preventing them from
filing an answering affidavit in the review application, but the court a quo furthermore
failed to take that fact into consideration in the exercise of its discretion, and;
(c) without finding that the appellants acted mala fide , the court a quo exercised
its discretion against the granting of the adjournment sought.
[16] Based on the grounds set out in the preceding paragraph, the appellants
sought to persuade this court to grant an order setting aside the court a quo's refusal
to grant their application for adjournment. This raised the question as to whether it is
legally competent for this court to grant such an order in the first place and, if so,
under what circumstances.
[17] The responses to the questions posed in the preceding paragraph can be
found in the judgment of the Constitutional Court in the matter of National Coalition
for Gay & Lesbian Equality v Minister of Home A ffairs1, where the following was held:
'A Court of appeal is not entitled to set aside the decision of a lower court granting or
refusing a postponement in the exercise of its discretion merely because the Court of
appeal would itself, on the facts of the matter before the lower court, have come to a
1 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17; 2000 (2) SA I; 2000 (1) BCLR 39 at para 11.
different conclusion; it may interfere only when it appears that the lower court had
not exercised its discretion judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a decision which in
the result could not reasonably have been made by a court properly directing itself to
all the relevant facts and principles.'
[18] In the present case, it was not indicated by the appellants as to whether it was
their contention that the refusal by the court a quo to grant their application for
postponement was influenced by any of the factors that may warrant interference by
this court with the discretion of the court a quo . This was one of the issues raised by
this court with Mr Wallis SC, who appeared for the appellants.
[19] In response, it was conceded by Mr Wallis SC and, in my view, correctly, that
the court a quo cannot be faulted for having misdirected itself in any way in the
exercise of its discretion to refuse the appellant's application for an adjournment.
However, rather than abandon that point completely, Mr Wallis submitted that it
should nonetheless be considered by this court jointly with the appellants' remaining
ground of appeal against the substitution order that was issued by the court a quo .
[20] With respect, I disagree with Mr Wallis. In the light of the appellants' failure to
demonstrate to this court that the court a quo had misdirected itself in the exercise of
its discretion to refuse their application for adjournment, there is nothing entitling this
court to interfere with the court a quo's exercise of its discretion in that regard. In
fact, it is a cause for concern that some practitioners tend to adopt a cavalier attitude
when it comes to compliance with the court rules. When called upon to explain their
recalcitrant conduct, they engage in a blame game with their clients to avoid the
consequences of their non -compliance.
[21] In Uitenhage Transitional Local Council v SA Revenue Services2 the
consequences of non -compliance with the court rules were spelled out by the
Supreme Court of Appeal (SCA), per Reher JA, as follows:
2 Uitenhage Transitional Local Council v South African Revenue Service [2003] ZASCA 76; 2004 (1)
SA 292 (SCA) at para 6.
'One would have hoped that the many admonitions concerning what is required of an
applicant in a condonation application would be trite knowledge among practitioners
who are entrusted with the preparation of appeals to this Court: condonation is not to
be had merely for the asking; a full, detailed and accurate account of the causes of
the delay and their effects must be furnished so as to enable the Court to understand
clearly the reasons and to assess the responsibility. It must be obvious that, if the
non-compliance is time related then the date, duration and extent of any obstacle on
which reliance is placed must be spelled out.'
[22] While the learned Judge may have directed the above remarks to the
practitioners who prepare appeals to the SCA, his remarks are not necessarily
restricted to the flagrant breaches of the SCA Rules. They are equally applicable to
any practitioner who fails to comply with the rules of any court without an acceptable
explanation. This is irrespective of whether the breach is attributable to the
practitioner or his or her client. The effect is the same, the proper administration of
justice is hampered by such conduct.
[23] Regrettably, the erstwhile attorney of the appellants is not around to respond
to the appellant's allegation that she is solely to blame for the failure to deliver their
answering affidavit in the review application. However, in my view, the appellants
themselves are equally to blame because they ought to have known that their
erstwhile attorney could not possibly have prepared their answering affidavit without
first consulting with them to obtain their detailed instructions on oath in response to
the third to sixth respondents' founding and supplementary affidavits, as well as the
first and second respondents' explanatory affidavits.
[24] Therefore, insofar as the appellant's appeal is directed at the court a quo's
refusal to grant them an adjournment, I am satisfied that that part of the appeal is
without any merit and, therefore, must fail.
Issue 2: Substitution order in the review proceedings
[25] Regarding the substitution order that was issued by the court a quo , the
argument raised by the appellants is that the affidavits filed by the third to sixth
respondents in support of the review application did not seek or make out a case for
the existence of exceptional circumstances, which is the prerequisite for the granting
of a substitution order in terms of the Promotion of Administrative Justice Act 3 of
2000 ('P AJA'). It is common cause that the respondents did not argue that a
substitution order could or should be made.
[26] Under s 8(1) (c) of PAJA, the court in proceedings for judicial review may grant
an order that is just and equitable, including an order:
'Setting aside an administrative action and -
(i) remitting the matter for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional cases -
(aa) substituting or varying the administrative action or correcting a defect resulting
from the administrative action; or
(bb) directing the administrator or any other party to the proceedings to pay
compensation;
…’
[27] Prior to the promulgation of PAJA, the issuing of substitution orders in review
applications was regulated by the common law, the application of which was
articulated by the court in The University of the Western Cape & Others v Member of
Executive Committee for Health and Social Services & Others3 in the following
terms:
'Our courts have repeatedly laid down that they do not want to usurp the powers of
the authorities to whom the legislation has vested the powers to decide one way or
the other. To do otherwise would constitute an unwarranted usurpation of the powers
entrusted to the public authorities by the relevant statute. Therefore, in the ordinary
course the Courts will refer the matter back because the Court is slow to assume a
discretion which has by statute been entrusted to another functionary or repository of
power. It is only in exceptional circumstances that this principle will be departed
from.'
3 The University of the Western Cape & Others v Member of Executive Committee for Health and
Social Services & Others , 1998(3) SA 124 at 130 -131 paras I-B.
[28] In PAJA, the term 'exceptional cases' was adopted by the legislature to
describe the circumstances under which the court may issue an order substituting or
varying the administrative action of an administrative body in terms of that Act. For
guidance as to when a case may be regarded as 'exceptional' as envisaged in PAJA,
the following was held by the Supreme Court of Appeal in Gauteng Gambling Board
v Silverstar Development Ltd and Others4:
'A case is exceptional when, upon a proper consideration of all the relevant facts, a
court is persuaded that a decision to exercise the power should not be left to the
designated functionary. How that conclusion is to be reached is not statutorily
ordained and will depend on established principles informed by the constitutional
imperative that administrative action must be lawful, reasonable and procedurally
fair.'
[29] The instances where our courts were prepared to substitute their own
decisions for those of administrative bodies include, inter alia , cases where: it would
serve no purpose to remit the matter to the administrative body concerned because
the end -result is a foregone conclusion5; it is more than likely that further delay would
cause undue prejudice to the other party if the matter is remitted6; there is a
reasonable apprehension of bias or incompetence on the part of the decision -
maker7; the court is in as good a position as the decision -maker to make the
decision8; and there is a likelihood of the decision -maker not applying his or her mind
fairly or at all.
[30] In the present case, it was not suggested by any of the parties that
exceptional circumstances existed that justified the court a quo issuing the
substitution order by reason of any or more of the factors set out in the preceding
paragraph. Had that been the case, not only the appellants but also the first and
second respondents would have been entitled to file their formal responses to such
suggestions. In the circumstances, I am of the view that the appellant's right to be
heard was infringed by the substitution order that was issued by the court a quo .
4 Gauteng Gambling Board v Silverstar Development Ltd and Others [2005] ZASCA 19; 2005 (4) SA
67 (SCA) at para 28.
5 Ibid at para 38.
6 Ruyobeza and Another v Minister of Home Affairs and Others 2003 (5) SA 51 (C) ( 'Ruyobeza ' ).
7 Tantoush v Refugee Appeal Board and Others [2007] ZAGPHC 191; 2008 (1) SA 232 (T).
8 Gauteng Gambling Board fn 4 at para 39.
[31] In the result, I am satisfied that the second part of the appellants' appeal that
is directed at the substitution order that was issued by the court a quo must succeed.
In my view, the just and equitable order is to refer the appellants' applications for the
site and retail licences back to the first respondent for reconsideration.
Costs
[32] On the issue of costs, it is of course trite that the costs would ordinarily follow
the result. In the present case, this raises the question as to which party, if any, was
substantially successful. To answer that question, I think it would be appropriate to
adopt as a starting point the two orders appealed against.
[33] Starting with the first order refusing the appellants' application for adjournment
('the adjournment appeal'), my finding that the appellants' appeal against such order
was without merit means that the result thereof went in favour of the third to sixth
respondents.
[34] As for the second order, in terms of which the court a quo substituted its own
decision for that of the first respondent ('the substitution order appeal'), the
appellants were successful in respect of that part of the appeal, which means that
the result thereof went in their favour. However, I do not believe that it would be just
and/or equitable for the third to sixth respondents to be held liable for the costs of the
substitution order appeal as such an order was not part of the relief they sought in
the review application.
[35] Be that as it may, the fact of the matter is that the third to sixth respondents
elected to defend the substitution order on appeal, even though they never asked for
it. This, in my view, means that neither party was outright successful in the whole
appeal. In the circumstances, I think the just and equitable result on the issue of
costs would be to order each party to pay its own costs.
[36] In the result, the following order is made:
Order
[37] The appeal against the order refusing with costs the appellants' application for
an adjournment is dismissed.
[38] The appeal against the substitution order is upheld, and paragraph 2 of the
order of the court a quo is set aside.
[39] The appellants' applications for the site and retail licences are referred back to
the first respondent for reconsideration.
[40] Paragraphs 1 and 3 of the order of the court a quo are confirmed.
[41] Each party shall pay its own costs of appeal.
M E NKOSI
Judge of the High Court,
KwaZulu -Natal Division
I agree
P J OLSEN
Judge of the High Court,
KwaZulu -Natal Division
I agree
MOODLEY
Judge of the High Court,
KwaZulu -Natal Division
Appearances
For the 1st and 2nd appellants: Mr P Wallis
Instructed by: Kershnie Govender Attorneys
Suite 11b
Docnor Centre
39 Umhlanga Rocks Drive
Durban North
Tel: (031) 564 -9856
Emails: kershnie@law.co.za
alisha@kgattomeys.co.za
Ref: K Govender/O020
For the 3rd to 6th respondents: Mr A Stokes SC
Instructed by: Norman Brauteseth & Associates
t/aNBALaw
4 Caefron Avenue
Grayleigh
Westville
Tel: (031) 266 -9300
Emails: admin@nbalaw.co.za
bob@nbalaw.co.za
Ref: N BRAUTESETH/NN0094.N I0027.
NU0016.NH0037