IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION , PIETERMARITZBURG
In the matter between:
BUZZA PROPS 3 {PTY) LTD .
TEN TEN SERVICE STATION {PTY) LTD
And
DEKKER BROTHERS (PTY) LTD
BIG 5 HOLDINGS (PTY) LTD
MINISTER OF MINERAL AND
PETROLEUM RESOURCES
CONTROLLER OF PETROLEUM
PRODUCTS {KZN)
PC BEZUIDENHOUT J: JUDGMENT CASE NUMBER: 2025-092716
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
2
[1] Applicant brought an urgent application by way of a Rule nisi seeking interim relief.
The relief sought is to prevent First and Second Respondents or any other juristic person
conducting the business of retailing petroleum products from dispensing or permitting to
dispense from the immovable property Portion 8 of the Farm Lot 221, Empangeni
petroleum products of any kind and in any quantity until such time as Applicants appeal,
in terms of section 12A of The Petroleum Products Act 120 of 1977 against the decision
of Fourth Respondent (the Controller of the petroleum products) to grant a site and retail
licence to First and Second Respondent has been determined by Third Respondent (the
Minister of Mineral and Petroleum Resources). The application is opposed by First
Respondent and Second Respondent.
[2] First and Second Applicants are both holders of petroleum licences which were
granted by Fourth Respondent and both conduct businesses of fuel filling stations. First
Applicant at Portion 11 ( of 4) of the Farm Lot 225 Empangeni and Second Applicant at 6
Fairway Drive, Zini River Estate, Mtunzini, KwaZulu-Natal.
[3] First Respondent has commenced conducting business at Korn Tot Rus Farm,
Empangeni, KwaZulu-Natal and holds a site licence from Fourth Respondent in respect
of Portion 8 of the Farm Lot 221, Empangeni No. 10379, situated at Gwalagwala Street.
Second Respondent has a retail licence, issued by Fourth Respondent , that would permit
it to operate a petroleum retailing facility.
[4] Respondents applied for their respective licences on 10 June 2023. Applicants
lodged their objection thereto on 21 July 2023 for various reasons which are not
necessary to deal with at this stage. There were also other objections .
[5] It is contended that First and Second Respondents site from which they conduct
business is in close proximity to Empangeni . Applicants site is a mere 3.8 km from First
3
and Second Respondents site. First and Second Respondents site would draw
customers from the same traffic flow and same market catchment area as that of
Applicants . The situation of the various sites and the number of litreage which is pumped
in the area is not an issue as far as the interim relief is concerned .
[6] On 28 August 2023 the Regional Petroleum Controller of KwaZulu-Natal
concluded that there was no justification for the proposed site for First and Second
Respondents .
[7] On 16 May 2024 Applicants were informed by Fourth Respondent that First and
Second Respondents licence applications was approved. Applicants then appealed in
terms of section 12A of the PPA against the Controller 's approval of the site and retail
licence. This was timeously lodged with the Minister on 28 June 2024.
[8] On 6 June 2024 when the deponent to the affidavit on behalf of First Applicant , one
Donovan Balmer, passed Respondents site he noticed that they were operating and
advertising diesel at a retail price of R19.96 per litre. Also, on 13 June 2024 an employee
of Second Applicant attended the site and was assisted by a member of Second
Respondent to obtain petroleum in a container.
[9] On the issue of urgency it was contended that on 13 June 2024 Applicants legal
representative addressed a letter to Respondents advising them of the appeal againt the
decision of the Controller. It cautioned Respondents against commencing retail activities
and threatened that they would be interdicted if they did so. On 13 June 2024 Mr Dekker,
a director of First Respondent , replied to the email requesting clarity as to the timing of
the intended appeal and that they were in the process of commencing to construct in the
near future.
4
(1 O] The appeal was lodged with the Minister on 28 June 2024 and on 10 February
2025 Applicants legal representative addressed correspondence to Respondents as they
had commenced development on the site, informing them that the Minister had not yet
made any decision and that if they did continue with their activities the High Court would
be approached. No response was received. On 17 June 2025 he attended Respondents
filling station and was able to fill up his vehicle.
[11] On behalf of First and Second Respondents it is contended that they were granted
a licence by the controller, Fourth Respondent, and that this was appealed by Applicants.
It is contended that the licence is enforceable and valid until ~et aside or suspended by
the Minister. It is contended that the urgency was self-created by Applicants as they were
well aware for some time that Respondents were constructing the site as appears from
the letter of 13 June 2024. Further that Applicants knew on 10 February 2025 that
construction was taking place. It is submitted that if the interim relief is granted that there
would be irreparable harm to Respondents as they have already stocked up with fuel and
that the balance of convenience also favours them and that the relief should not be
granted.
(12] It was submitted on behalf of Applicants that the decision of the Supreme Court of
Appeal in the matter of Gensigner and Neave CC & Others v Minister of Mineral
Resources and Energy and 3 others 2025 (4) SA 84 (SCA) is applicable in this case as it
relates to the interpretation of section 12A(1)(a) of the Petroleum Products Act 120 of
1977.
[13] In terms of the common law lodging an appeal has the effect of suspending the
operation of the administrative decision appealed against pending the outcome of the
appeal. It was therefore contended that the retail licence issued by the Controller to
Respondents are suspended due to the lodging of the appeal to the Minister which still
has to be determined. It was submitted that there was irreparable harm as customers
5
who would have filled up with them would be lost and may not even return in the future.
Further that the balance of convenience favours the granting of the relief as there was no
other alternative .
[14] In the Gensinger matter it held as follows in paragraph 20:
"The Act grants a person, who is directly affected by the Controller 's decision, the
right to appeal to the Minister. The Act does not provide that an appeal against a
Controller 's decision does not suspend that decision. It follows that the Controller 's
decision will be suspended when a person who is directly affected by the
Controller's decision appeals to the Minister against the Controller 's decision. It
has already been found that the Appellants are directly affected by the Controller 's
decision. The common law principle is applicable to the fact of this case, with result
that the Appellants appeal in term of section 12A of the Act suspends the
Controller 's decision. The Minister has, for no apparent reason, not yet decided
the Appellants appeal. The Respondents contention that the appeal has lapsed
has no factual or legal basis."
In the order of the said judgment it states in paragraph 1:
"1. It is declared that the provisions of the Petroleum Products Act 120 of 1977
(the Act) do not oust the common law principle that there is a presumption
that an administrative decision is suspended by an appeal against that
decision.
2. It is declared that the Applicants appeal, in terms of section 12A of the Act
against the decision of the controller of petroleum products to approve the
third and fourth Respondents application for site and retail licences and
subsequently to issue those licences to them suspends the Controller 's
decision pending the finalisation of such appeal."
6
[15] It was therefore submitted that the licence which was granted by the Controller has
been suspended pending the appeal and that accordingly Respondents were not entitled
to trade and dispense petroleum products until the Minister's decision has been received.
It was further submitted that the urgency was not self-created even though they knew
some time before that construction may be starting and did start but that it was not have
assisted them bringing an application at that stage because the construction could have
been done in contemplation of the licence being granted. It was only once the appeal had
been lodged and Respondents then commenced dispensing diesel or fuel products form
the site that the urgency arose.
[16] It was submitted on behalf of Respondents that the urgency was self-created and
that there had to be a Rule 28 amendment to the notice of motion as it did not contain a
provision that the non compliance of the Rules be condoned as this is necessary and
cannot just now be sought. It was submitted that Respondents had no proof of an appeal
and therefore the interdict should not be granted. It was conceded that in terms of the
Gensinger judgment that indeed it suspended the licence pending the appeal. It was
however submitted that the balance of convenience had to be considered for interim relief
and the apprehension of harm. It was submitted that there are costs involved for
Respondents in paying rentals etc. It was submitted that fairness should be considered .
[17] In reply it was submitted that the notice of appeal was indeed served and that that
is also apparent from the email of Respondents who questioned in the email what the
time constraints for the appeal were going to be. It was submitted that the notice of motion
can be amended at this stage and that the letter of 10 February 2025 made Respondents
aware of the appeal. It was submitted that fairness does not come into the equation and
that the relief in the notice of motion was to be sought.
7
[18] Firstly as far as the contention by Respondents that the notice of motion does not
seek condonation for the Rules as the matter was brought as one of urgency it is in my
view not even necessary to amend the notice of motion. There is a certificate of urgency
signed for Applicants and in any event the fact that the matter was heard is indicative of
the fact that it was treated as urgent. When an order is granted on urgency the
condonation paragraph is not made part of the relief. The fact that the matter is heard is
indicative that condonation was granted.
[19] The Gensinger judgment in my view is very clear as set out above. The quotations
make it clear that the licence granted is indeed suspended. It refers specifically to the
Petroleum Products Act and therefore there cannot be any doubt that the licence which
was granted by the controller , Third Respondent, is suspended pending the outcome of
the appeal to Fourth Respondent , the Minister. The fact that the Minister has taken so
long is unfortunate and one understands that Respondents would become impatient as
the appeal is taking so long but unfortunately there is nothing which this Court can do and
it is clear from the Supreme Court of Appeal judgment that the licence of First and Second
Respondents is suspended until the appeal is finalised.
[20] In my view having considered the judgment in the Gensinger case in the Supreme
Court of Appeal it is not even necessary to consider all the other factors for interim relief
as it is apparent from the said judgment that once an appeal has been lodged with the
Minister then the position is that it suspends the licence which was granted by the
Controller until the Minister has granted its ruling. Therefore in this situation as it is
common cause that the Minister has not made a ruling that the licence granted by the
Controller is suspended.
[21] Applicants are therefore in my view entitled to the interim relief sought as they
made out a case therefore.
8
Order:
A Rule nise is granted in terms of paragraphs 1, 1.1, 1.2 and 2 of the notice of motion,
the date in paragraph 1 to be 8 August 2025.
P C BEUIDENHOUT J.
JUDGMENT RESRVED ON: 23 JUNE 2025
JUDGMENT HANDED DOWN ON-LINE ON: 4 JULY 2025
COUSEL FOR APPLICANTS:
Instructed by:
COUNSEL FOR RESPONDENTS:
Instructed by: SHOAR
HSG Attorneys Inc
Westville
0312667751
Email: matthewb@hsginc .co.za
Ref: MH Bremmner/D105
c/o: Tatham Wilkes Inc
Pietermaritzburg
c/o: Nabeel Dhooma
S JIKELA
Morakile Tibane Atoorneys Inc
Johannesburg
Tel: 010 0252694
Email: P.Tibane@mtlegal.co .za
c/o: Kunene Attorneys
Pietermaritzburg
Tel: 033 3459767 9