SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1264/202 3
In the matter between:

PINE GLOW INVESTMENTS (PTY) LTD APPELLANT

and

THE MINISTER OF ENERGY FIRST RESPONDENT
THE CONTROLLER OF PETROLEUM
PRODUCTS SECOND RESPONDENT
ERF […] HIGHVELD TECHNOPARK
INVESTMENTS (PTY) LTD THIRD RESPONDENT
NAD PROPERTY INCOME FUND (PTY) LTD FOURTH RESPONDENT
ROYALE ENERGY (PTY) LTD FIFTH RESPONDENT
ROYALE ENERGY GROUP (PTY) LTD SIXTH RESPONDENT
ROYALE ENERGY MANAGEMENT SERVICE
(PTY) LTD SEVENTH RESPONDENT
ROYALE ENERGY OLIFANTSFONTEIN
(PTY) LTD EIGHTH RESPONDENT
VIVA OIL (PTY) LTD NINTH RESPONDENT
TOKIVECT (PTY) LTD TENTH RESPONDENT

Neutral citation: Pine Glow Investments (Pty) Ltd v The Minister of Energy and
Others (1264/2023 ) [2025] ZASCA 75 (2 June 2025)
2

Coram: ZONDI DP and MOCUMIE, MOKGOHLOA and KOEN JJA and
MOLITSOANE AJA
Heard : 5 May 2025
Delivered : This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment is
deemed to be 11h00 on 2 June 2025 .
Summary: Administrative Law – Petroleum Products Act 120 of 1977 (the Act) –
whether decision of Minister of Minerals and Energy (the Minister) on appeal
remitting decision of Controller of Petroleum Products (the Controller) for re-
evaluation constitutes administrative action – whether such remittal within Minister’s
powers in s 12A of the Act – whether Controller functus officio regarding re-
evaluati on of site and retail licences pursuant to remittal – whether objector to
approval of licences had internal remedy of appeal to the Minister in terms of s 12A
of the Act and should first exhaust such remedy – if so, whether aggrieved party
should be exempted from first having to exhaust internal remedy – whether Controller
re-evaluated the licence applications in a n unfair manner and/or was biased .


3


ORDER

On appeal from: Mpumalanga Division of the High Court, Mbombela (Roelofse AJ,
Vukeya J and Greyling -Coetzer AJ , sitting as a court of appeal ):
1 The appeal is dismissed .
2 The appellant is directed to pay the third and fourth respondents’ costs of the
appeal, such costs to include the costs of two counsel where so employed.

JUDGMENT

Koen JA ( Zondi DP and Mocumie and Mokgohloa JJA and Molitsoane AJA
concurring):

Introduction
[1] This appeal concerns a decision by the second respondent, the Controller of
Petroleum Products (the Controller) , which awarded a retail licence to the third
respondent, Erf […] Highveld Technopark Investments (Pty) Ltd (Erf […]) and a site
licence to the fourth respondent, NAD Property Income Fund (Pty) Ltd (NAD)
pursuant to the provisions of the Petroleum Products Act 120 of 1977 (the Act) .1 The
issue raised is whether the Controller’s decision should have been reviewed and set
aside at the instance of the appellant, Pine Glow Investments (Pty) Ltd (Pine Glow) .

[2] Pine Glow was unsuccessful with its review in both the Mpumalanga Division
of the High Court (the court of first instance )2 and on appeal to the full court of that
division (the full court) .3 The present appeal is against the decision of the full court
with the special leave of this Court. All references hereafter to section numbers are to

1 The Petroleum Products Act 120 of 1977.
2 The high court dismissed the review with the costs of two counsel where employed.
3 The full court dismissed the appeal and directed Pine Glow to pay the costs of Erf […] and NAD.
4

sections of the Act, unless stated otherwise. Only Erf […] and NAD (collectively
referred to as the respondents) oppose the appeal.4

Background
[3] Pine Glow holds a site licence for the Caltex Acornhoek Mall filling station ,
Mpumalanga province . It is also a fuel wholesaler supplying some filling stations in
the Acornhoek area.

[4] On 26 April 2018 , Erf […] and NAD applied to the Controller for respectively
a retail licence and a site licence in respect of Erf 9[...] , Green Valley, Extension 1,
Acornhoek (the site).5 Pine Glow objected to the issue of the licences. On 9
November 2018 , the Controller refused both applications.

[5] Erf […] and NAD lodged an appeal in terms of s 12A6 with the first
respondent, the Minister of Minerals and Energy (the Minister)7 against the refus al of
the licences. Pine Glow opposed the appeal. On 12 December 2019 t he Minister
upheld the appeal, set the Controller’s refusal of the applications as ide and advised
that he was referring the site and retail licences back to the Controller for re -
evaluation taking into consideration information submitted and other documentation
obtained during the appeal process (the Minister’s decision) . The Minister’s decision
was recorded as follows:
‘1. I, the Minister of Petroleum Resources and Energy . . . considered the appeal . . .
2. After careful consideration of all the facts and arguments presented before me, I hereby set
aside the decision of the Controller to refuse the site and retail licence applications.

4 The other respondents to the review were the fifth respondent, Royale Energy (Pty) Ltd, the sixth respondent, Royale
Energy Group (Pty) Ltd, the seventh respondent, Royale Energy Management Services (Pty) Ltd, the eighth respondent,
Royale Energy Olifantsfontein (Pty) Ltd, the ninth respondent, Viva Oil (Pty) Ltd, and the tenth respondent, Tokivect
(Pty) Ltd. These respondents and the first and second respondents did not participate in any of the hearings before the
court of first instance, the full court, or in this Court.
5 The need for these licences arise s from the provisions of s 2B of the Act. Its terms are not material to the appeal.
6 Section 12A is quoted in paragraph 36 below.
7 The Minister of Minerals and Energy is the designated Minister defined in s 1 of the Petroleum Products Act 120 of
1977 (the Act). The Minister was cited in the appeal record as the Minister of Energy.
5

3. However, I am referring the site and retail licences back to the Controller for re -evaluation
taking into consideration the information submitted and other documentation obtained during the
appeal process.’

[6] Pine Glow’s complaint is not so much against the part of the Minister’s
decision which upheld the appeal against the initial decision of the Controller refusing
the licences, but primarily against the portion of the decision remitting the decision as
to whether the licences should be granted to the Controller . The Minister , in a letter of
12 December 2019, explained the motivation for his decision as follows :
‘After having due regard to the arguments put forward by the Appellants, Legal Services is of the
view that there are numerous possible deficiencies in the assessment of this set of licence
applications that have come to the fore. It is apposite that the Controller re -evaluates this set of
licence applications with all of the information at hand as well as the information supplied by the
Appellants and the objectors. Any deficiency would be cured by such a re -evaluation . . . ’
The information alluded to by the Minister co mprise s, inter alia , updated reports
dealing with traffic counts, the economic feasibility of the proposed filling station and
the expansion and growth in the area of Acornhoek.

[7] In an email addressed to the Minister o n 5 February 2020 , Pine Glow ’s attorney
recorded that the Minister’s decision was , in his view , unlawful because the Minister
was required to decide the appeals and was not empowered to refer the applications
back to the Controller. Pine Glow contended that the Minister failed to take a decision
as contemplated in s 6(3) (b) of the Promotion of Administrative Justice Act 3 of 2000
(the PAJA),8 and that the Minister had not provided reasons for his decision . It
demanded full written reasons forthwith and that the Minister decide the appeal
within 30 calendar days. It expressed the view that any decision taken by the
Controller pursuant to the Minister’s decision would be ultra vires and of no legal
force and effect, as would be any licences issued by the Controller pursuant thereto .
Finally, it cautioned that it would approach the high court for urgent relief should that
be deemed necessary.

8 The Promotion of Administrative Justice Act 3 of 2000.
6


[8] On 27 February 2020, the Senior Legal Admin istration Officer of the
Controller responded to Pine Glow ’s attorney . The response record ed that: since the
enactment of the licensing system in 2006 , decisions by the Minister to refer matters
back for reconsideration by the Controller have never been challenged ; and that
following Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others
(Oudekraal )9 an invalid administrative act ion continue s to have legal consequences
and remains competent and valid until reviewed and set aside in an appropriate forum.

[9] On 12 November 2020 , after undertaking various enquiries , a second site visit ,
visits to competitors in the area of the site, obtaining further information including
information from Pine Glow pursuant to a visit to it, the Controller approved the
applications and issued the retail and site licences (the Controller’s decision ).10 On 10
December 2020 , Pine Glow brought an application , pursuant to the provisions of the
PAJA, to review and set aside the Minister’s decision and the Controller’s decision .
Pending the review, Pine Glow also sought an order that the respondents be
interdict ed and restrain ed from constructi ng a filling station on the site.

[10] Pine Glow abandoned its challenge to the Minister’s decision before the review
came to be adjudicated before the court of first instance .11 It also did not persist with
the interdict.

[11] The court of first instance , per Mashile J , dismissed the review of the
Controller’s decision. It concluded that: the Minister was entitled to re fer the matter
back to the Controller; the Controller was expected to assist the Minister as requested
and in doing so was discharging his responsibilities set out in s 3(2) (a); in doing so

9 Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others [2004] 3 All SA 1 (SCA); 2010 (1) SA 333 (SCA)
(Oudekraal ).
10 The review of the Controller’s decision formed the subject of paragraph 3.1.2 of the original notice of motion and para
3.1 of the amended notice of motion dated 13 January 2021.
11 The review of the Minister’s decision formed the subject of paragraph 3.1.1 of the original notice of motion. It was
omitted from the amended notice of motion dated 13 January 2021.
7

the Controller was not revisiting his own decision but was merely executing
instructions of the Minister; the Controller was therefore not functus officio ; the
Controller’s decision re -assess ing the applications was part of the Minister’s
consideration of the appeal; therefore there was no internal appeal available to the
Minister in respect of t he Controller’s re -evaluat ion and grant of the licences ; the
Minister could not be functus officio as he had upheld the appeal ; and the decision to
re-asses s the applications was that of the Minister and not the Controller.

[12] The subsequent appeal to the full court was dismissed. The full court concluded
inter alia that: the Minister’s decision and the Controller’s decision were separate
administrative acts as contemplated in the PAJA; s 7(2) (a) of the PAJA required Pine
Glow to exhaust internal remedies provided for in any law before taking any
administrative action on review; s 12A provided such a remedy; Pine Glow had failed
to exhaust such remedy, or to apply to be exempted from the obligation to do so ; and
Pine Glow’s review application was accordingly premature.

[13] Pine Glow seeks an order from this Court that the appeal be upheld with the
costs of two counsel, that the order of the full court be set aside and that it be replaced
with an order that:
‘1. The appeal is upheld and the third and fourth respondents jointly and severally, shall pay the
costs of the appeal;
2. That the order of the Court a quo dated 10 June 2022, is set aside and replaced with the
following:
i The decision of the second respondent, taken on 12 November 2020, to re -evaluate
and approve the respondents’ site and retail Applications in terms of the provisions of
the PPA, is reviewed and set aside;
ii the third and fourth respondents are ordered, jointly and severally, the one paying the
other to be absolved, to pay the costs of the application.’



8

The parties’ contentions
[14] Pine Glow argue s that: the Minister’s decision was not administrative action as
contemplated in PAJA ; the Controller could not be authorised in terms of s 12A to re -
evaluate the licence applications ; and the Controller was functus officio and could not
grant the applications . Alternatively, if the Controller was not functus officio , Pine
Glow contends that : the Controller did not conduct the re -evaluation of the licences in
a procedurally fair manner in compliance with the prescripts of the PAJA and the audi
alteram partem rule; and that the Controller was biased.

[15] The respondents maintain that : the Controller’s original decision not to grant
the licences no longer exists as it was set aside on appeal to the Minister; the
Minister’s decision to remit the applications to the Controller to consider the licence
application s afresh with additional information constitutes administrative act ion; the
Minister’s decision is no longer sought to be impugned as separate substantive relief ;
the Minister’s decision accordingly stands; the Controller thereafter took a new
decision on facts previously submitted in support of the applications for the retail and
site licences augmented by additional information and documents which w ere not
before the Controller previously when the original decision was taken ; therefore , the
Controller was not reconsidering his own decision on the same facts and was not
functus officio . They further maintain that a review of the Controller’s decision was
premature, as Pine Glow had not exhausted the internal remedy of an internal appeal
against the Controller’s decision to the Minister .

Discussion
Was the Minister’s decision an administrative act ?
[16] Preliminary to any discussion of the merits of Pine Glow’s review based on the
provisions of the PAJA, is the question whether the Minister’s decision and the
Controller’s decision each constitute administrative action as contemplated by the
PAJA. The Controller’s decision was rightly accepted by all the parties as constituting
9

administrative action. Pine Glow however persisted that the Minister’s decision did
not amount to administrative act ion.

[17] It contends that to qualify as administrative action in compliance with the
various components in the definition of administrative action , as confirmed in
Minister of Defence and Military Veterans v Motau and Others (Motau) ,12 its rights
had to be af fected adversely by the Minister’s decision . It maintains that its rights
were not affected adversely because when the Minister’s decision on appeal did not
result in the grant of the licences, the only parties whose rights were affected were the
respondent s.

[18] That argument cannot be sustained. Pine Glow had participated in the appeal
support ing the Controller’s initial decision refus ing the licence applications. Its
conten tion is that the Minister ’s powers in deciding the appeal were only two -fold:
either to uphold the appeal or to dismiss the appeal. When the Minister upheld the
appeal and added the remittal of the licence applications to the Controller , Pine
Glow’s rights would be adversely affected. As an objector , the licence applications to
which it had previously successfully objected , were not disposed of in the appeal , but
were now referred back to the Controller for what Pine Glow viewed as ‘an unlawful
reconsideration ’. These consequences satisf y the requirement of its rights being
affected adversely.

[19] It was not disputed that the other requirements for the Minister’s decision to
amount to administrative action, as discussed in Motau , were satisfied. The Minister’s
decision accordingly amounted to administrative action.

The ambit of the Minister’s powers on appeal in terms of s 12A

12 Minister of Defence and Military Veterans v Motau and Others [2014] ZACC 18; 2014 (8) BCLR 930 (CC); 2014 (5)
SA 69 (CC).
10

[20] The next consideration is whether the Minister’s decision, notably the remittal,
fell within the powers conferred on the Minister in terms of s 12A. Pine Glow
maintains that the Minister did not have such power . It however formulates the
proposition from the perspective of the Controller , that is whether the Controller
could lawfully re-evaluate the licence applications having been enjoined to do so by
the Min ister’s decision. It views the issue from that perspective probably because ,
having initially sought to review the Minister’s decision , it abandoned that relief
against the Minister and removed it from the relief claimed by an amendment to the
notice of motion . The review application was however not withdrawn against the
Minister . He remained cited as the first respondent.

[21] The question arising is whether this Court can enquire into the legality of the
Controller ’s decision , as it will involve enquiring whether the Minister’s decision
pursuant to s 12A , remitting the licence applications for re -evaluation , fell within his
powers , where Pine Glow had abandoned the relief for the review and setting aside of
the Minister’s decision as against the Minister . It is trite law, recogni sed inter alia in
Oudekraal , that absent a successful review of an administrative action, that
administrative action , even if invalid , stands as a fact. That is a necessary
consequence to ensure administrative certainty.13

[22] Oudekraal however recogni sed that where an administrative body seeks to
exercise coercive powers against a person, it is permissible, and a court is indeed
enjoined14 to consider a collateral challenge to the legality of a preceding
administrative act on which the coercive provision is premised for its existence and
enforcement. It held:15
‘It is important to bear in mind (and in this regard we respectfully differ from the court a quo ) that in
those cases in which the validity of an administrative act may be challenged co llaterally a court has

13 Oudekraal para 37.
14 Oudekraal para 37; City of Tshwane Metropolitan Municaplity v Cable City [2009] ZASCA 87; [2010] 1 All SA 1
(SCA); 2010 (3) SA 589 (SCA) ; 72 SATC 285 para 16.
15 Oudekraal para 36.
11

no discretion to allow or disallow the raising of that defence: The right to challenge the validity of
an administrative act collaterally arises because the validity of the administrative act constitutes the
essential prerequisite for the legal force of the action that follows and ex hypothesi the subject may
not then be precluded from challenging its validity. On the other hand, a court that is asked to set
aside an inv alid administrative act in proceedings for judicial review has a discretion whether to
grant or to withhold the remedy.’

[23] In casu, Pine Glow maintain s that the Controller’s decision was coercive upon
it because it resulted in the approval of the applications , where the applications should
have been disposed of in the appeal before the Minister without it be coming the
recipient of an invalid re ferral back to the Controller. Insofar as it is adversely
affected by the Controller acting on the Minister’s referral when consider ing the
applications afresh, the legal impetus for that being the Minister ’s decision, the
legality of the Minister’s decision has significance, because without it, the re mittal
would not have served before the Controller.

[24] But coerci on apart, in the words of Oudekraal :16
‘It will be apparent from that analysis that the substantive validity or invalidity of an administrative
act will seldom have relevance in isolation of the consequences that it is said to have produced - the
validity of the admi nistrative act might be relevant in relation to some consequences, or even in
relation to some persons, and not in relation to others - and for that reason it will generally be
inappropriate for a court to pronounce by way of declaration upon the validity or invalidity of such
an act in isolation of particular consequences that are said to have been produced.’

[25] The validity of the Controller’s decision and the consequences it produced,
depend s on the validity of the Minister’s decision. Even in the absence of formal
relief being claimed against the Minister for the review and setting aside of his
decision, considerations of legality and the rule of law render it necessary to consider
the extent of the Minister’s powers .


16 Oudekraal para 38.
12

[26] The factual position is however a peculiar one, and a n irregular review should
not be introduced via the back door, whe re the Minister had effectively been informed
that no further relief would be claimed against him . This makes it all the more
important to ensure that the Minister must have had an adequate opportunity to be
heard on the relief claimed, insofar as it may affect him or impact on his powers . That
is what the application of the audi alteram partem rule requires.

[27] Hence in Merafong City Local Municipality v AngloGold Ashanti Limited
(Merafong )17 a collateral challenge to admini strative action was raised .18 But
significantly, the Constitutional Court did not decide the challenge raised but referred
the validity of the Minister’s decision for separate determination in a separate
substantive review in the Gauteng Division of the High Court against the Minister ,19
where the Minister could be heard on the issue of the extent of his or her
administrative powers .

[28] A court should not permit a challenge to the powers of an administrator unless
the administrat or had been afforded an opportunity to be heard on whether he or she
acted illegally , or unless the administrator was afforded an adequate opportunity to be
heard and declined that opportunity. As was stated in City of Tshwane Metropolitan
Municipality v Cable City (Pty) L td:20
‘It is in general imperative that a party affected by a ruling should be joined in those proceedings.
This is particularly so when the constitutional validity of a ministerial act is at issue.’
Whether there was an adequate opportunity for the administrator to be heard is largely
a factual enquir y.


17 Merafong City Local Municipality v AngloGold Ashanti Limited [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2)
SA 211 (CC) (Merafong ).
18 Merafong para 2 2.
19 Merafong para 78
20 City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZACC 34; 2010 (5) BCLR 445 (CC) para
12.
13

[29] In casu, the initial notice of motion cited the Minister, and expressly provided
for the Minister’s decision to be reviewed and set aside. This was claimed on the basis
that he acted beyond his powers in s 12A. After the notice of motion was amended, no
relief was being claimed against the Minister, although he still remained cited as a
party to the application. The effect thereof was that the Minister did not participate in
the proceedings before the court of first instance, the full court, or this Court, and
perhaps understandably so, because no specific relief was claimed against him.
Indeed, further participation in the review by the Minister was discouraged by costs
being sought against such further respondents as may oppose the application.

[30] However, being still cited as the first respondent , he had all the rights of a party
to the review and could participate and oppose the relief . He would know that an
order was still sought reviewing the Controller’s decision and that this was sought on
the basis , set out in the founding affidavit, that Pine Glow contended that the decision
to refer the applications back to the Controller for re-evaluat ion of the applications,
was illegal , as being beyond the Minister’s powers . That was sufficient to convey to
the Minister th at the relief persisted with involved a determination of the extent of his
powers in terms of s 12A on appeal , and that he was required to place any
submissions which could impact on the claimed in validity of th e Controller’s decision
and hence the challenge raised, before the court of first instance .

[31] The Minister did not avail himself of that opportunity . The Controller did not
oppose the relief claimed against him either. The Minister would only have himself to
blame if this Court was to find that he had acted illegally. The conclusion reached in
this appeal regarding the Minister’s powers , however , happens to coincide with the
contentions of the Minister . It is therefore unnecessary to examine the doctrine of
collateral challenge and whether it finds application further21 because Pine Glow’s
prospects of reversing the judgment of the full court are non-exist ent.

21 As also in City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd [2009] ZACC 34; 2010 (5) BCLR 445
(CC) para 12.
14


[32] Of course, if I am wrong in reaching the conclusions above, and it was to be
found that the notice to the Minister was insufficient, then the appeal should for that
reason alone be refused . The enquiry into the extent of the powers of the Minister
would then , at this stage, be irrelevant and irregular.

[33] Turning then to an examination of the Minister’s powers in s 12A. The extent
of the powers which would constitute the legal basis for either the Minister’s decision,
or the Controller’s decision, particularly the direction that the licence applications
were to be re -evaluated, depends on an interpretation of the relevant provisions of the
Act. The se provisions are quoted below .

[34] The long title of the Act provides inter alia that it provides ‘. . . for the licensing
of persons involved in the manufacturing and sal e of certain petroleum products . . . to
provide for matters incidental thereto’ .

[35] Section 3 provides:
‘(2) Subject to the provisions of this Act, the Controller of Petroleum Products, a regional
controller of petroleum products and an inspector –
(a) may assist the Minister in the exercise of his powers and the performance of his functions
under this Act;
(b) . . .
(3) The Minister shall, subject to the provisions of this Act, determine the powers, duties and
functions of the Controller of Petroleum Products, a regional controller of petroleum products and
an inspector, and different powers, duties and functions may thus be determined in respect of
different persons or categories of persons appointed or authorised under subsection (1).’

[36] Section 12A provides
‘Appeal –
15

(1) Any person directly affected by a decision of the Controller of Petroleum Products may,
notwithstanding any other rights that such a person may have, appeal to the Minister against such
decision.
(2) An appeal in terms of paragraph (a) shall be lodged within 6 0 days after such decision has
been made known to the affected person and shall be accompanied by –
(a) A written explanation setting out the nature of the appeal;
(b) Any documentary evidence upon which the appeal is based.
(3) The Minister shall consider the appeal, and shall give his or her decision thereon, together
with written reasons therefor, within the period specified in the regulations.’

[37] The only regulation relevant to the s 12A appeal process is regulation 33 which
provides that the period contemplated in s 12A(3) for the Minister to give his decision
is 90 days.22 The General Guidelines for the Submission of Internal Ap peals to the
Minister in terms of s 12A23 prescribe time limits for various steps in the appeal
process, but do not proscribe the powers of the Minister in any way . They simply
provide in regulation 4.6 that ‘[t]hereafter, the appeal will be considered, and the
Minister will make a decision on the appeal ’. It is correctly accepted by the parties
that the internal appeal contemplated is an appeal in the wide sense.24

[38] The court of first instance relied on s 3(2) (a) to find that the Minister could
remit the matter back to the Controller , as the Controller would then assist the
Minister , but the decision would be that of the Minister . In terms of s 3(2) (a), the
Controller may assist the Minister with the exercise of his powers and the
performance of his duties, but such assistance is rendered specifically in respect of the
Minister’s exercise of those powers. The Minister does not issue retail and site
licences. That is the preserve of the Controller. The decision whether to issue a

22 Regulation 33 published in GN R286 in GG 28665 of 27 March 2006 as amended by GN R1061 in GG 35984 of 19
December 2012 .
23 The General Guidelines for the Submission of Internal Appeals to the Minister in terms of s 12A, published in GN
4465b in GG 50248 of 1 March 2024.
24 See Golden Arrow Bus Services v Central Road Transportation Board 1948 (3) SA 918 (A) at 924; SA Broadcasting
Corporation v Transvaal Townships Board and Others 1953 (4) SA 169 (T) at 175 E–176F; Rosenberg v South African
Pharmacy Board 1981 (1) SA 22 (A) at 28B-C; National Union of Textile Workers v Textile workers Industrial Union
(SA and Others) 1988 (1) SA 9 25 (A) at 939B -C.
16

licence is a polycentric decision involving particular skills and knowledge . It is best
entrusted to a specialist administrator like the Controller. There is no basis to
conclude that what the Minister referred back to the Controller to consider and decide,
would become or be part of a decision of the Minister. In fact, the converse is the
case.

[39] The Minister’s powers in s 12A(3) are wide and not circumscribed in any way.
The internal appeal does not only lie against the approval or disapproval of a licence,
but at the instance of ‘[a]ny person’ who might be ‘directly affected by a decision of
the Controller’ . The Minister’s powers when considering the appeal are also not
confined to only either upholding or dismissing the appeal. Section 12A(3) does not
limit the powers of the Minister.

[40] Section 12A simply contains four requirements: first, the Minister has to
consider the appeal; second, he must decide the appeal; third, he must give written
reasons for his decision; and fourth, he must deliver his decision within the time
prescribed. The Minister complied in all these respects.

[41] Section 12A is silent on the granting of licences when an appeal against a
refusal to issue licences is upheld . The Minister cannot issue licences. Only the
Controller may do so . Thus, where an appeal against the refusal of a licence is upheld
by the Minister, the decision would have to include some direction that the Controller
should issue the particular licences. The power to include such direction is not
expressly provided for in s 12A(3) but must necessarily be implied. It is difficult to
conceive why a direction , issued by the Minister that the Controller should re -evaluate
an application in the light of additional information which had come to light and
which had not been considered by the Controller initially , would be any different.
Such a direction is necessarily implied as an essential part of the Minister deciding the
appeal. It gives practical e ffect to the Minister’s reasons.

17

[42] Pine Glow’s argument is that because the appeal contemplated by s 12A is one
in the wide sense where the Minister can have regard to whatever additional
information he may consider appropriate to decide the appeal, that the Minister is the
only one to decide the fate of the applications , even if it means having to call on the
Controller to place his view on the impact of the additional documents before the
Minister. But having considered the appeal, as the Minister was obliged to do and did ,
there is nothing which precludes him in deciding the appeal and in the exercise of his
discretion in the wide sense , inherent in the decision making process, and having
regard to the object of the Act, his responsibilities, the obligations of the Controller,
and the interest of the general public, from remitting the applications for re -
evaluation .

[43] The grant of retail and site licences involve s specialised skills of officials
involved in those processes and who have acquired such expertise through the
exposure to what should inform such decisions, on a continuous basis. These
decisions are almost invariably policy laden and polycentric. The full-time officials
dealing with these policies are best suited to make these decisions. The y are employed
by the Controller. They are able to undertake further investigations, collate these
meaningfully, and assess the impact thereof. An appeal tribunal, like the Minister in s
12A, can only benefit considerably from having the investigative background , which
should have preceded any decision on the licences , taking into account all relevant
information and documentation, collated, analysed, examined and assessed for the
purpose of the Controller deciding whether a particular licence should be granted or
refused . That will result in the Minister hav ing the benefit of the considered result of
such a distilling process, should any appeal be pursued thereafter .

[44] Not only does th e above conclusion mean that the re mittal to the Controller for
re-evaluation was within the powers of the Minister, but it also emphasises that the
subject matter of what was referred back, was not the evidential material which
previously served before the Controller and on which the licences were refused. The
18

material to be considered in the re -evaluation was as different f rom what previously
served before the Controller , as entirely new applications based on the original
material amplified by the further information and documentation would call for a
fresh determination of the applications by the Controller .

[45] The remittal did not entail the Controller mak ing a new determination on the
same material which he had considered previously. The Controller would therefore
not be functus officio . The Minister, having regard to the purposes of the Act, simply
expedited the process of properly deciding the respondents’ licence application s, to
avoid the further delays which might occur if fresh applications were to be
commenced, to save costs by avoiding much investigative work which had already
been done, and to arrive more speedily at a properly informed determination. The re -
evaluation further was reached , not in response to any illegality, but as the result of a
proper mandate to the Controller , which he was obligated to perform.

[46] Pine Glow contends that any argument that because s 12A does not prohibit the
Minister from remitting the applications back to the Controller for reconsideration, it
was competent for him to do so, flies in the face of authorities such as Principal
Immigration Officer v Medh (Medh )25 and Compcare Wellness Medical Scheme v
Registrar of Medical Schemes and Others (Compcare ).26 Generalised comparisons are
however unhelpful. E very case must depend on its own facts and on a proper
interpretation of the statutory power granted to the administrator .

[47] In Medh the power granted was to either exempt a person from a class of
prohibited immigrants or not . There was no intermediate option of attaching a
condition of domicile . The enquiry was confined to whether an exemption should be

25 Principal Immigration Officer v Medh 1928 AD 451.
26 Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others [2020] ZASCA 91; 2021 (1) SA 15
(SCA) ; [2020] HIPR 169 (SCA) (Compcare ) para 32.
19

granted, or not. In casu, the Minister had to decide the appeal , not decide between
options . His discretion and powers were not fettered in any way.

[48] In Compcare it was found that the provision empowered the Board to either
approve a name change of a medical scheme or not , but not to add conditions.
Significantly , the learned judge held , unlike the position in the present appeal, that ‘I
can see no possible basis for somehow implying [th at power] in the section’ . In this
appeal, there is a basis to imply such a power.

[49] The powers of the Minister are contained in s 12A , but they will include power s
necessarily implied. There is no reason, on a proper interpretation of s 12A, and
having regard to the text thereof, in the context of the Act, and having regard to the
purpose of the Act, why the Minister in serving an effective role as an internal appeal
adjudicator, could not direct that the site and retail licence applications be remitted to
the Controller for re -evaluation .

[50] That power is necessar ily implied to give effect to the purpose of the Act as
recorded in its long title. It is permitted by law,27 as much as it is not prohibited or
precluded . It i s furthermore not a function beyond that necessarily conferred in our
constitutional order.28

[51] The mere fact that a statutory provision in a related statute, s 96 of the Mineral
and Petroleum Resources Development Act (MPRDA),29 in regulation 74(13) (b) of
the Mineral and Petroleum Regulations30 accords to the same Minister the power to
‘set aside the administrative decision concerned with or without directions’, might
place the power to re mit a decision in the context of that statute beyond doubt . But it

27 Compcare para 30.
28 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) para
58.
29 Act 28 of 2002.
30 Mineral and Petroleum Regulations R527 of 2004.
20

does not per se mean that absent such an express conferral of the power, it is not
competent for the Minister to remit in the context of s 12A .

[52] Section 12A(3) provides in the most general of terms that the Minister shall
consider the appeal and shall give his ‘decision thereon’. That is without any
restriction on what the decision might be.31 It does not follow that because a power to
refer the decision back was not conferred expressly, that it would not be competent as
part of ‘the decision thereon’ which the Minister may reach. The MPR DA, like the
other statutes referred to above are not in pari materia (not the same).

[53] It is not insignificant, a lthough the point apparently did not specifically arise for
decision thus rendering its precedential valu e limited, that in Total Brite Star Service
Station CC v ENSPA Trading Company (Pty) Limited and Others32 the Minister had
set aside the decisions of the Controller and re mitted the decisions to the Controller,
without demur from the parties or any interested p erson, and the decision following
on the remittal was thereafter taken on appeal again to the Minister .

The failure to exhaust the internal remedy of an appeal in respect of the
Controller’s decision
[54] At the outset of this discussion, it is necessary to deal with a preliminary
procedural issue raised by Pine Glow. The court of first instance did not deal with the
respondents’ argument that Pine Glow failed to exhaust the internal remedy of an
appeal in respect of the Controller’s decision to grant the licences. The full court
however dismissed the appeal against the order of the court of first instance primarily
on the basis that Pine Glow had not exhausted such remedy. Pine Glow maintained
that the full court erred i n basing its judgment on the failure to exhaust the internal

31 Metro Service Station (Pty) Ltd and Others v Minister of Energy and Others [2021] ZAKZDHC 2 shows that, after the
Director -General of the Department of Energy recommended confirmation of the Controller’s grant of the licence, the
Minister duly dismissed the appellants’ appeal (para 71). The decision confirms the normal course of the Minister’s
statutory powers to review, set aside, confirm or remit a Controller’s licensing determination on appeal.
32 Total Brite Star Service Station CC v ENSPA Trading Company (Pty) Limited and Others [2022] ZAECELLC 29 para
7.
21

remedy , because there was no cross appeal against the order of the court of first
instance for not having relied on that defence .

[55] This submission is without merit. An appeal lies against the order of a court,
not the reasons for arriving at that order.33 If the order of the court of first instance
was, in the view of the full court , the correct order but on a legal basis not considered
by the court of first instance, nothing precluded the full court from relying on such
ground to justify its refusal to interfere with the order of the court of first instance .

[56] Turning then to the merits of this defence, t he Controller’s decision regarding
what was referred back to him, constituted separate and distinct administrative action.
As separate administrative act ion, any party aggrieved by the decision, such as Pine
Glow, could appeal to the Minister , as provided in terms of s 12A. The merits of such
an appeal would depend on the new body of evidence and reports on which the
Controller’s decision approving the licences would be based . The grounds of appeal
could also include any alleged unfair treatment of Pine Glow by the Controller, or
bias on the part of the Controller.

[57] Section 7(2)34 of the PAJA requires that no court shall review administrative
action in terms of that Act unless any internal remedy provided had first been
exhausted. If a court is not satisfied that an internal remedy has been exhausted, it
must direct that the person concerned must first exhaust such remedy before
instituting proceedings for judicial review.


33 Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355 . See also
Cape Empowerment Trust Ltd v Fisher Hoffman Sithole [2013] ZASCA 16; [2013] 2 All SA 629 (SCA); 2013 (5) SA
183 (SCA) para 39.
34 Section 7(2) of the PAJA provides:
‘(a) Subject to paragraph (c), no court or tribunal shall review any administrative action in terms of this Act unless any
internal remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in
paragraph (a) has been exhausted, direct that the person concerned must first exhausted such remedy before instituting
proceedings in a court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such
person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.’
22

[58] An appeal to the Minister in terms of s 12A would be an adequate remedy. Pine
Glow has not contended that it is not. Pine Glow however failed to invoke that
remedy. This is not simply a technical defence. Internal appeals carry distinct benefits
in an administrative context. It has been said that:
‘Internal remedies are designed to provide immediate and cost -effective relief, giving the executive
the opportunity to utilise its own mechanism, rectifying irregularities first, before aggrieved parties
resort to litigation. Although courts p lay a vital role in providing litigants with access to justice, the
importance of more readily available and cost-effective internal remedies cannot be gainsaid. First,
approaching a court before the higher administrative body is given the opportunity to exhaust its
own existing mechanisms undermines the autonomy of the administrative process. It renders the
judicial process premature, effectively usurping the executive role and function. The scope of
administrative action extends over a wide range of circumstances, and the crafting of specialist
administrative procedures suited to the particular administrative action in question enhances
procedural fairness as enshrined in our Constitution. Courts have often emphasised that what
constitutes a “fair” procedure will depend on the nature of the administrative action in the
circumstances of the particular case. Thus, the need to allow executive agencies to utilise their own
fair procedures is crucial in administrative action. ’35

[59] Pine Glow’s failure to appeal the Controller’s decision to the Minister is
accordingly fatal to its prospects of success in the review. That is unless it was
exempted from having to first exhaust such remedy.

Exemption from exhausting internal remedies
[60] A court may in exceptional circumstances and on application by the person
concerned, in terms of s 7 (2)(c) of the PAJA, exempt such person from the obligation
to exhaust any internal remedy if deemed in the interest of justice.36 The position was

35 Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) [2009]
ZACC 23; 2010 (4) SA 327 (CC); 2009 (12) BCLR 1192 (CC) (Koyabe ) paras 35 -36.
36 Bason v Hugo and Others [2018] 1 All SA 621 (SCA) ; 2018 (3) SA 46 (SCA) para 12; Koyabe para 34; Nichol and
Another v Registrar of Pension Funds and Others [2005] ZASCA 97; 2008 (1) SA 383 (SCA) ; [2006] 1 All SA 589 (C)
para 15.
23

explained as follows in Dengete nge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Co Ltd :37
‘The exemption is granted by a court, on application by the aggrieved party. For an application for
an exemption to succeed, the applicant must establish “exceptional circumstances”. On ce such
circumstances are established, it is within the discretion of the court to grant an exemption. Absent
an exemption, the applicant is obliged to exhaust internal remedies before in stituting an application
for review. A review application that is launched before exhausting internal remedies is taken to be
premature and the court to which it is brought is precluded from reviewing the challenge d
administrative action until the domestic remedies are exhausted or unless an exemption is granted.
Differently put, the duty to exhaust internal remedies defers the exercise of the court ’s review
jurisdiction for as long as the duty is not discharged.’

[61] The person seeking exemption must satisfy the court: first, that the re are
exceptional circumstances, and second, that it is in the interest of justice that the
exemption be given.38 To insist on an internal remedy first having to be exhausted, is
not simply a technicality. There are very sound reasons for doing so .

[62] As explained in Koyabe and Others v Minister for Home Affairs and Others
(Lawyers for Human Rights as Amicus Curiae) :39
‘Internal administrative remedies may require specialised knowledge which may be of a technical
and/or practical nature. The same hold true for fact -intensive cases where administrators have easier
access to the relevant facts and information. Judicial review can only benefit from a full record of an
internal adjudication , particularly in the light of the fact that reviewing cour ts do not ordinarily
engage in fact -finding and hence require a fully developed factual record .
The duty to exhaust internal remedies is therefore a valuable and necessary requirement of our law.
However, that requirement should not be rigidly imposed. Nor should it be used by administrators to
frustrate the efforts of an aggrieved person or to shield the administrative process from judicial
scrutiny. PAJA recognises th is need for flexibility, acknowledging in s ection 7(2)(c) that
exceptional circumstances may require that a court condone non -exhaustion of the internal process

37 Dengete nge Holdings (Pty) Ltd v Southern Sphere Mining and Development Co Ltd and Others [2013] ZACC 48;
2014 (3) BCLR 265 (CC); 2014 (5) SA 138 (CC) para 116.
38 Nichol and Another v Registrar of Pension Funds [2005] ZASCA 97; 2008 (1) SA 383 (SCA) ; [2006] 1 All SA 589
(C) para 15.
39 Koyabe op cit paras 37-39.
24

and proceed with judicial review nonetheless. Under section 7(2) of PAJA, the requirement that an
individual exhaust internal remedies is therefore not absolute.
What constitutes exceptional circumstances depends on the facts and circumstances of the case and
the nature of the administrative action at issue . Thus, whe re an internal remedy would not be
effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court
directly. So to o where an internal appe llate tribunal has developed a rigid policy which renders
exhaustion futile.’

[63] As to wh ether there are exceptional circumstances will depend on the facts and
circumstances of each case. Generally, f actors taken into account in deciding whether
exceptional circumstances exist , are whether the internal remedy is effective,
available and adequate. An internal remedy is effective if it offers a prospect of
success and can be objectively implemented taking into account relevant principles
and values of administrative justice present in the Constitution and our law . It is
available if it can be pursued without any obstruction, whether systemic or arising
from unwarranted administrative conduct . It is adequate if it is capable of redeeming
the complaint.40 Such an application to be exempted from the provisions of PAJA is
compulsory.41

[64] The aspect of an exemption was dealt with casually by Pine Glow . It simply ,
almost in passing, asked the court of first instance to condone its failure to appeal the
Controller’s revisitation of the decision , submitting that : it was advised and accepted
that the respondent’s appeal in terms of s 12A in respect of the refusal of the licen ces
exhausted the internal remedies available to the parties; the Minister, having made his
decision, was also functus officio ; the Minister is not empowered by the Act to make a
second decision on appeal regarding the same licen ce applications; it would be an
exercise in futility for the parties to repeatedly appeal decisions of the Controller

40 Koyabe op cit paras 42 to 45.
41 Member of the Executive Council for Local Government, Environmental Affairs and Development Planning, Western
Cape and Another v Plotz NO and Another [2017] ZASCA 175 paras 20 and 21.
25

related to the same set of applications; and that the court is properly vested with the
authority to entertain the review application.

[65] There is no merit in these considerations . They are certainly not exceptional.
They simply indicate that Pine Glow was misdirected. That is inherent in the litigation
process and cannot per se constitute exceptional circumstances. Pine Glow was
directly affected by the decision of the Controller and dissatisfied with its decision .
As a person aggrieved by the Controller’s decision it was required first to exhaust its
internal remedy under s 12A by an appeal to the Minister . It failed to do so and it
failed to apply to be exempted . As a result the appeal stands to be dismissed.

Alternative grounds
[66] The alternative grounds of appeal, namely that the Controller’s decision was
allegedly procedurally unfair or that he was allegedly biased, should have formed the
subject of the internal appeal . They will therefore not be considered further in much
detail in this judgment .

[67] If it was to be found that these alternative grounds should have been determined
by this Court , then I simply record that: material disputes of fact exist as to whether
the procedure adopted by the Controller was unfair and whether the Controller was
biased; the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd42
therefore finds application; the version of the respondent accordingly prevails in
respect of any material factual disputes.

[68] Pine Glow maintains that it was unaware of what transpired with the
reconsideration by the Controller until, on 26 November 2020, it came to its
knowledge that construction activities had commenced on the site and it was notified
by the respondents’ attorney on 7 December 2020, that the site and retail licences had

42 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
26

been issued by the Controller. Th is is disputed. The respondents allege that
subsequent to the Minister’s decision being conveyed to the parties, Pine Glow, on 5
February 2020, addressed a letter to the Minister alleging that the Minister’s decision
constituted a failure to take a decision, demanded that the Minister provide reasons,
and claiming that the Controller was now functus officio .

[69] Pine Glow failed to challenge the decision of the Minister. It did nothing
further. It was aware that in the absence of the Minister’s decision being challenged ,
the Controller would act on such decision and re -evaluate the applications taking into
account the new information. The Controller requested further information from
competing filling stations before deciding the applications. This included Pine Glow,
trading as ‘Caltex Mpumalanga North Marketer’, which responded and supplied
information. After a site inspection and volume data being requested, Pine Glow
made further representations to the Controller. The respondents made no further
representations and did not submit any further documents in addition to what had
previously been submitted to the Minister as part of the appeal. On 12 November
2020 the Controller issued the licences.

Conclusion
[70] Pine Glow has not established any circumstances, leave a side special
circumstances, why the appeal should succeed. The appeal accordingly falls to be
dismissed .

Costs
[71] The respondents have been successful. There is no reason why they should not
be entitled to their costs of the appeal . The respondents were represented before this
Court by two counsel and Pine Glow by four counsel. It is appropriate and fair that
the costs of two counsel be allowed.

Order
27

[72] The following order is granted:
1 The appeal is dismissed .
2 The appellant is directed to pay the third and fourth respondents ’ costs of the
appeal , such costs to include the costs of two counsel where so employed .


______________________
P A KOEN
JUDGE OF APPEAL

28

Appearances

For the appellant: M C Erasmus SC (with him E Bloem, D J Van
Heerden and E Ngantweni )
Instructed by: Doyer & Doyer Attorneys, Mbombela
Symington De Kok Attorneys , Bloemfontein

For the third and fourth respondent s: J A Venter (with him N Satekge )
Instructed by: A Kock & Associates, Mbombela
Honey Attorneys , Bloemfontein .