SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case No: EL809/2024
In the matter between:
TOTALGAZ SOUTHERN AFRICA (PTY) LTD Applicant
(Registration Number: 1996/006515/07)
and
RHYDER INVESTMENTS CC t/a DTB SALES 1st Respondent
(Registration Number: 1996/006515/07)
DAVID TERRY BENGE 2nd Respondent
(Identity Number: 7[…])
JUDGMENT
ZONO AJ:
Introduction
[1] The applicant is the owner of the gas cylinders bearing its brand Total
Energies and or Total, which cylinders are orange in colour. The applicant
approached this court on ex parte basis for a Rule Nisi and an interim relief which
was granted on 14 May 2024.
[2] Shorn of wordiness and verbiage, the applicant sought an order interdicting
and restraining the first respondent from: receiving or possessing applicant’s steel
pressurized liquid petroleum gas (LPG) cylinders; filling the said cylinders with LPG
and or distributing and or selling the said cylinders to the third parties. A further order
was sought against the respondents, seeking to direct the respondents to surrender
the cylinders which may come into their poss ession within 48 hours of the order to
the Sheriff of this court. A punitive costs order was sought against the respondents
jointly and severally one paying the other to be absolved. Further relief related and
was directed to the Sheriff and the applicant.
[3] On 14 May 2024 the applicant obtained the interim relief against the
respondents on ex parte basis. A Rule Nisi was issued on the said day calling upon
the respondents to show cause why the interim relief referred to above should not be
made final on the return date. After several extensions of the rule nisi and interim
order, the matter came before the opposed motion court as a fully opposed matter.
The applicant contended for a final relief, which the respondents opposed.
Factual background
[4] The applicant and the respondents are not strangers. They had a contractual
relationship which started on 4 June 2018 and terminated by effluxion of time on 3
June 2023. In terms of the written dealer agreement aforesaid the first respondent,
whose sole member in the second respondent , would conduct the business of a
Totalgaz dealership, on the terms that are not entirely relevant for purposes of
determination of this matter.
determination of this matter.
[5] The applicant posits a case that it participates in an industry standard cylinder
exchange arrangement whereby the applicant would collect its own cylinders and
that of its competitors when delivering cylinders to various dealerships, such as the
first respondent . Its competitors would act sim ilarly when collecting their own
cylinders from various dealerships. The applicant and its competitors would
exchange their respective cylinders so that each respective part y would again be
placed in possession of its cylinders.
[6] The first respondent, after the expiry of the dealer agreement on 3 Jue 2023,
remained in possession of a number of applicant’s cylinders. The first respondent
failed or neglected to return to the applicant its cylinders as it was obliged to do so .
The applicant further contends that the first respondent had no legal right to retain
possession of the applicant’s cylinders after the termination of the dealer agreement.
[7] An investigation report prepared by Ifalethu Risk Consulting CC was compiled
at the i nstance of the applicant. The investigation was conducted at the first
respondent’s place of business. Apparently, the investigation was conducted on 15
April 2024, 16 April 2024 and 17 Apil 2024.
[8] The report, in respect of 16 April 2024 , reveals that, inside the respondent s’
premises, there was a designated filling area with various commercially branded
cylinders owned by different companies. The second respondent’s son arrived at the
premises in a bakkie loaded with inter alia applicant ’s cylinders. The five (5) empty
cylinders were exchanged for five (5) 9kg Totalgaz cylinders (applicant’s) which were
all sealed with what seemed to be legitimate Total Energies plastic seals. They were
given to the investigating team and a payment of R1600 .00 was made to the first
respondent by way of EFT and a receipt was given to the investigating team as proof
of payment. Five (5) empty cylinders were off -loaded in exchange for five (5) full
Totalgaz (applicant’s) cylinders which were loaded into the i nvestigators motor
vehicle. The respondents’ employees took the empty cylinders into the filling area.
[9] On 17 April 2024, the investigating team went bac k to the respondents’
[9] On 17 April 2024, the investigating team went bac k to the respondents’
business premises with two (2) empty cylinders belonging to other companies. O n
their arrival they observed a road tanker truck delivering gas into the bulk tank.
Another 6 -ton truck was obse rved carrying different empty cylinders of various
brands. Cylinders of various brands were stack ed inside and just outside the filling
area. The second respondent advised the investigators that they had an electricity
problem, and he could not fill the cylinders, and he did not have full 19kg or 48kg
cylinder. However, he told the investigators to wait for a moment as he was trying to
resolve the problem. After some time, the second resp ondent came with two full
cylinders, 19kg of which belonged to the applicant , that he collected from an
alternative area and gave them to the investigators . After a tax invoice was given to
the investi gators for an amount of R2 165.00, an EFT payment was made for the
same amount.
[10] The applicant concludes by stating that it had never provided its consent or
permission to the first respondent to fill, distribute and / or sell the applicants’
cylinders. There is no legal basis that would justify the first respondent to be in
possession of applicant’s cylinders for such purposes. The applicant assets that the
first respondent’s conduct, especially the filling of the applicant’s cylinders without
the prior written consent of the applicant i s in contravention of Pressure Equipment
Regulations of the Occupational Health and Safety Act, 1993 as amended. The first
respondent’s conduct poses a serious safety threat to the lives of customers and
members of the pub lic who are supplied with the applicant’s cylinders unlawfully
filled and distributed by the first respondent. The applicant lastly submits that it has a
right and an obligation to ensure that its cylinders are returned to it without delay.
[11] The respondents’ case is quite straight forward. It renders a lot of issues a
common cause. The respondents assert that they are participants in the gas
distribution industry together with the applicant. The respondents accept that the gas
distribution ind ustry is governed by an industry cylinder exchange arrangement,
which enables or allows the participants thereto to collect its own cylinders when
delivering to various dealerships. The very nature of the exchange arrangement in
delivering to various dealerships. The very nature of the exchange arrangement in
the industry permits a temporary possession u ntil sufficient cylinders are gathered
together for an exchange.
[12] Participants in the industry commence by acquiring gas cylinders with their
own specific identifiable colours. They fill their specific-coloured cylinders in their
depots. The cylinders belonging to distributors with their own depo ts are filled
exclusively at those depots by those distributors.
[13] A member of the public who may wish to purchase a gas cylinder, approaches
the distributors ’ depot and transacts to obtain possession of that distributor’s
cylinder. In doing so he may bring an empty cylinder belonging to another distributor.
In those circumstances a distributor will be left in possession of another distributor’s
empty cylinder. It is virtually impossible for any distributor not to be in possession of
cylinders belonging to its competitors or other distributors.
[14] An empty cylinder is ascribed a value of R345.00 regardless of its size. If a
customer bri ngs in an empty cylinder, he will have to pay for the gas in the filled
cylinder. If the customer has no empty cylinder to prese nt to the distributor, the
customer will have to pay an extra R345.00 for the cylinder he leaves with. The
respondents posits a case that when the applicant deliver ed its cylinders to the first
respondent, the first respondent had to pay the required deposit of R345.00 per
cylinder in terms of their dealer agreement.1 The dealer agreement makes provision
for the refund of the deposit upon termination of the agreement .2 The respondents
laments that, whe n the applicant’s 107 cylinders were repossessed, the applicant
never repaid or refunded the deposit. The respondents conten ds that they were
lawfully entitled to possess those cylinders.
[15] About the five (5) sealed cylinders adv erted to in the investigation report,
(about the events of 16 April 2024 ) the respondent s contend that they purchased
them from applicant ’s local distributor, Marius Engelbrecht of E-Gas, who provided
the second respondent with sealed cylinders, w ith branded Total Energy plastic
seals. With regard to the event of 17 April 2024 referred to in the investigation report
about 19kg applicant’s sealed and apparently full cylinder , the respondents pleaded
that that was an exception and an isolated incident as their employees were
that that was an exception and an isolated incident as their employees were
instructed not to f ill the applicant’s cylinders , filling of the applicant’s cylinder
occurred contrary to the second respondent ’s instructions . The respondents have
taken a precaution of reminding their staff members of the instruction and that the
isolated incident will not occur again.
Discussion and analysis
1 Clause 7.1.1 of the Dealer Agreement.
2 Clause 7.3 ad 7.5.1 of the Dealer Agreement.
[16] During the hearing of the matter, the applicant abandoned the relief set out in
paragraph 1.1 of the notice of motion. The relief has been abandoned after it had
been made to form part of the interim relief granted on ex parte basis on 14 May
2024. For the sake of completion, the relief is worded thus:
“1.1 that the first and second respondents are interdicted and restrained
from receiving o r being in possession of steel pressurized liquid petroleum
gas (“LPG”) being the applicant’s brand “Total Energies” and or “Total”, and
which cylinders are orange in color, and which cylinders belongs to the
applicant.” The interim relief seems to have been implemented and complied
with.
[17] It would then appear that this relief is relevant only for the determination of
costs. There will be no need for the court to decide who the winne r is, as the merits
of the relief have become academic. To that end I must have regard to all the
affidavits filed towards the merits of the relief and the application .3 The proper
approach is to utilize the material available and decide the issue of costs o n broad
general lines that would not necessitate a full hearing of the merits that have already
been settled .4 In the circumstances the universal rule that a party who succeeds
should be awarded costs cannot apply. In the exercise of the court ’s discretion, the
court has to consider the manner in which the parties have conducted themselves in
this application, both before and after the application was brought .5 The court must
also consider which of the parties took unnecessary steps or adopted a wrong
procedure, any misconduct by a party and any other relevant factors.6
[18] The starting point should be the common cause fact that the applicant and the
first respondent are participants in an industry standard cylinder exchange
agreement. The applicant asserts that in terms of this exchange arrangement it
agreement. The applicant asserts that in terms of this exchange arrangement it
3 Gamlan Investments (Pty) Ltd and Another v Talion Cape (Pty) Ltd and Another 1996 (3) SA 692 (C)
at 700G-J.
4 Nkume v Firstrand Bank Limited t/a First National Bank 2012 (4) SA 121 (ECM) para 9.
5 Nxumalo and Another v Mavundla and Another 2000 (4) SA 369 (D) at 355F; First National Bank of
Southern Africa t/a West bank v First Ea st Cape Financing (Pty) Ltd 1999 (4) SA 1073 (SE) at 1079 –
1080.
6 De Villiers v Union Government (Minister of Agriculture) 1931 AD 206 at 214.
would collect its own cy linders and that of its competitors when delivering cylinders
to various dealerships, such as the first respondent. The first respondent takes this
argument further and con tends that the customary exchange arrangement or
practice renders it impossible for participants in the gas industry not to be in
possession of cylinders of competitors when they are brought in by customers to be
exchanged for filled cylinders.
[19] Two things arise from the practice of industry standard cylinder exchange
arrangement. Firstly, a participant is entitled to collect its own cylinders from its
competitors. Secondly, a participant is entitled to receive and be in possession of its
competitors’ cylinders. The step of approaching court and obtaining an interim relief
interdicting the receipt and possession of the cylinders was wholly unnecessary. A
remedy is provided by the standard cylinder exchange arrangement that, if one
participant’s cylinders were received and were in possession of its competitor , the
participant is well entitled to approach its competitor to collect its cylinders.
[20] The respondents ’ counsel argued that it was unnecessary for the present
proceedings to be instituted. The applicant should have exhausted the remedy
provided by the practice of standard cylinder exchange arrangement. I have no
hesitation in finding that an industry standard cylinder exchange arrangement is an
arrangement between the parti cipants or competitors inter se which constitutes an
agreement or contract between them. When a participant or competitor joins the
industry, it quintessentially enters into an agreement to be bound by the industry
standard cylinder exchange arrangement operating between the participants in the
industry. In terms of this agreement, it is permissible to receive and be in possession
of a competitor’s cylinder. It is further legally permissible too, for a participant to
collect its cylinders from its competitors.
collect its cylinders from its competitors.
[21] The applicant ’s coun sel c ountered an argument that the applicant should
have simple approached the respondents with a view to collect its cylinder s. He
stated that for a remedy to qualify to be an adequate alternative remedy it must be a
legal remedy. He accordingly relied for that proposition on the judgment of Rhodes
University7 per Lowe J.
“86. The existence of an adequate alternati ve remedy is such that it must be
such as to afford the injured party, in this case the university, a remedy that
gives similar protection to an interdict against the injury that was occurring or
apprehended. That alternative remedy must be a legal remedy that is one that
a court may grant and if need be, enforce by execution or contempt of court.
That the problem may be resolved b y extra-curial means is no justification for
refusing to grant an interdict. It is the purpose of an interdict to put an end to
the conduct in br each of applicant’s rights and seek enforcement of th is. The
alternative remedy and suggestion that there must be prior arrangement is
thus misconceived. I should say specifically that to engage constructively
maybe desirable or even preferable, but whilst this may be encouraged it is
most certainly not a bar to the granting of an interdict.”
[22] A remedy provided by the law is a legal remedy . A remedy provided and or
created in the contract between the parties is equally a legal remedy. The applicant
is enjoined to exhaust the remedies provided in the contract . On the application of
the doctrine of privity of contract the applicant is bound by the contract .8 Parties are
bound by the contracts they make with each other .9 I conclude in this regard that the
applicant was contractually and legally obliged to engage with the first respondent
before approaching this court about the receipt and possession of its cylinders by the
respondents.
[23] The parties are ad idem about the fact that a value of R345.00 is ascribed to
an empty cylinder regardless of its size. The respondents posit a case that they paid
for applicant’s empty cylinders as indicated in clause 7.1 .1 of the dealer agreement
they had. The dealer agreement provides for payment and refund when the cylinders
they had. The dealer agreement provides for payment and refund when the cylinders
were to be collected or returned.10 The respondent contend that the total value of the
7 Rhodes University v Student Representative Council of Rhodes University and Others 2017 (1) All
SA 617 para 86.
8 Gugu and Another v Zongwana and Others 2014 All SA 203 (ECM) para 21.
9 RH Christie: The Law of Contract in South Africa, 5th Edition, page 260.
10 Clause 7.3 and 7.5.1 of the Dealer Agreement.
applicant’s cylinder repossessed is R36 915.00 and same was not paid to the
respondents. No averment is made by the applicant to suggest that an amount of
R36 915.00 was paid to the respondents prior to coming to this c ourt on ex parte
basis. It goes without saying that in the absence of payment for the value of the
applicant’s cylinder retained by t he respondents, the respondents were not in an
unlawful pos session of applicant ’s cylinders. The respondents would only be in
unlawful possession if the respondents were engaged with a view to collect the
cylinders and the universally known value for the cylinders is paid, but not
withstanding those endeavors the respondent s refuse to release the cylinders. I
therefore find that the step of approaching this court for the relief that has since been
abandoned belatedly was wholly unnecessary.
[24] The applicant’s conduct of approaching this court on ex parte basis in these
circumstances was unwarranted. The applicant sought to obtain an unfair advantage
to subdue respondents’ resistance and enforcement of the contractual terms relating
to the payment of R345.00 for each cylinder . However, this is not the end of the
case.
[25] The applicant assails the respondents ’ conduct of fi lling, distributing and or
selling applicant ’s cylinders. The respondents concede that their staff members or
employees mistakenly filled in 19kg cylinder belonging to the applicant. However, the
respondents assert that such an incident was an isolated incident, which did not
necessarily mean that it happened before, and it will happen in the future. It was one
slip in the n et, so they say . The respondents contend that they have taken a
precautionary step of reminding their employees of an instruction not to fill
applicant’s cylinders. Reliance in this regard was placed on the case of Burman11
where the court held thus:
“It seems to me that if, in addition, the defendant has given a bona fide
“It seems to me that if, in addition, the defendant has given a bona fide
undertaking not to repeat the infringement, that is an important factor which
will influence the court in refusing the interdict”
11 Performing Right Society Limited v Burman 1966 (2) SA 355 at 357 F – G.
[26] On the other hand the applicant strongly contends that the filling, distri bution
and or selling of the cylinders belonging to a competitor is prohibited by the statute.
For that contention the applicant relies on various Health and Safety Standards and
the Regulations promulgated in terms of section 43 and 44 of the Occupational
Health and Safety Act 85 of 1993 (“Act”). In what follows I briefly deal with pressure
equipment regulations promulgated in terms of section 43 of the Act.
[27] Regulation 17 deals with Gas Recirculation E quipment and Systems.
Subregulation 1 (a) provides thus:
“17(1) No person shall –
(a) handle, store or distribute any gas in any manner, which includes the filing
of a container, other than in accordance with their relevant health and
safety standard incorporated into these regulations under section 44 of the
Act”
[28] The relevant Health and Safety Standard 9.5 of SANS 10019 of 2008 find
application in this matter. They provide as follows:
“9.5 Persons competent to fill containers
No person shall fill a portable container with gas unless he is competent to fill
containers with the gases he handles and unless:
(a) …
(b) …
(c) …
(d) Permission to fill the container has been granted by the owner of the
container, in writing, except where the cylinder is owned by the end user. This
requirement is for safety reasons, since the cylinder containment history is an
essential reference for correct filling”
[29] The aforesaid safety standards were conceptually reshaped in September
2011 as follows:
“Permission to fill shall be obtained from the owner of the press ure receptacle
in writing, except where the pressure receptacle is privately owned by the end
user, this requirement is for safety reasons. The pressure receptacle
containment history is an essential reference for safe filling”
[30] The provisions restricting a person's competency to act are peremptory.12 The
safety standards and regulations are clearly imposing restrictions on the competence
of a person to fill the container or receptacle. A statutory requirement construed as
peremptory usually needs exact compliance for it to have the stipulated legal
consequences.13
[31] The fil ling and distribution of a container or receptacle without the written
permission of the owner is prohibited. The act of filling and distribution is unlawful if it
is done without the consent or permission of the owner of the container or
receptacle. A jurisdictional fact or precondition for a lawful f illing and the distribution
of the container or receptacle is the written con sent of the owner thereof. In the
absence of such preconditions a person has no right at all to f ill and distribute the
container or receptacle.14
[32] It is a fundamental principle of our law that everything done contrary to the
direct prohibition of the law is void and of no effect .15 The law cannot and does not
countenance an ongoing illegality. The court has a conco mitant duty to uphold the
doctrine of legality, by refusing to countenance an ongoing statutory contravention.16
In our democratic order, it is the duty of courts to apply and enforce the legislation. 17
If the validity of legislation is not impugned, there is no justification for not enforcing
it, let alone giving effect to prohibited conduct.18
12 LAWSA Vol 25 second edition, page 401.
13 Shalala v Klerksdorp Town Council and Another 1969 (1) SA 582 (T) at 587 A – C.
14 Paola v Jeeva NO 2004 (1) SA 396 (SCA) para 11, 14 and 16.
15 Schierhoat v Minister of Justice 1926 AD 99 at 109.
15 Schierhoat v Minister of Justice 1926 AD 99 at 109.
16 Lester v Ndlambe Municipality 2014 (1) All SA 402 (SCA); 2015 (6) SA 283 (SCA paras 23, 2 7 and
28.
17 Section 165 (2) of the Constitution.
18 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) para
99.
[33] In addition to the fi lled applicant’s cylinder in their respondents’ premises that
was sold to the investigators, there were five ( 5) other filled applicant’s cylinders
which were allegedly purchased from Maruis Engelbretcht. Although these cylinders
were not filled in the respondents ’ premises or by the respondents, they were
purchased for purposes of distribution or sa le, which act is prohibited. The
respondents clearly contravened the law and there is no justification for that
contravention.
[34] The only outstanding issue now is th at of costs. I have found that there was
no basis for the applicant to approach this court on ex parte basis. There was also
no basis for the relief sought in paragraph 1.1 relating to the receipt and possession
of the applicant’s cylinders by the respondent. The applicant would have failed in its
pursuit for that relief. That relief was made an order of court on 14 May 2024. That
interim order deserves to be discharged. With regard to the relief relating to the f illing
and distribution of the applicant’s cylinders, the applicant would have been
successful. There is obviously no winner or loser. Accordingly, there is no party that
is entitled to costs.
[35] In the result I make the following order:
35.1 The interim orders set out in paragraph 1.1, 1.4 and 1.5 of the rule nisi
obtained by the applicant on 14 May 2024 are hereby discharged.
35.2 The interim order set out in paragraph 1.2 of the rule nisi obtained by
the applicant on 14 May 2024 is hereby confirmed.
35.3 There shall be no order as to costs.
_________________________________
AS ZONO
JUDGE OF THE HIGH COURT (Acting)
Appearances
Counsel for the Applicant: Adv Mafu
Instructed by: BDP Attorneys
c/o Drake, Flemmer & Orsmond
3050 Quenera Dr,
Beacon Bay North
EAST LONDON
Contact: 043 722 4210
Counsel for the Respondents: Adv Cole SC
Instructed by: Allams Attorneys
6 Sansom Road, Vincent
EAST LONDON
Contact: 043 721 1018
Date heard 12 June 2025
Date delivered 20 June 2025