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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 2025-187776
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED:
DATE: 17 NOVEMBER 2025
SIGNATURE
In the matter between:
D EDWARDS CC T/A CAMPGROUND MOTORS First Applicant
COTTAGE MOTORS CC Second Applicant
CLAYTON HETHERINGTON N.O. Third Applicant
SALLY HETHERINGTON N.O. Fourth Applicant
DALE AMSTEL KOHLBERG N.O. Fifth Applicant
and
SILWOOD CENTRE CC First Respondent
BRIXICLOX (PTY) LTD Second Respondent
THE CONTROLLER OF PETROLEUM PRODUCTS Third Respondent
ASTRON ENERGY (PTY) LTD Fourth Respondent
ENGEN PETROLEUM LIMITED Fifth Respondent
THE MINISTER OF MINERAL RESOURCES AND
ENERGY
Sixth Respondent
In re:
Case No.2022-010738
SILWOOD CENTRE CC First Applicant
BRIXICLOX (PTY) LTD Second Applicant
and
THE CONTROLLER OF PETROLEUM PRODUCTS First Respondent
ASTRON ENERGY (PTY) LTD Second Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this mat ter on
CaseLines. The date for handing down is deemed to be 17 November 2025.
JUDGMENT
RETIEF J
INTRODUCTION
[1] The first to fifth applicants [collectively the applicants] seek an interim
interdict to prevent the first respondent, Silwood Centre CC [Silwood] and the
second respondent, Brixiclox (Pty) Ltd [Brixiclox] from commenci ng with the
construction of and operating a fuel ling station on the remainder of erf 4[...]
situated at 4[...] S[…], Rondebosch, Cape Town [the site] [ interim relief].
[2] The applicants’ interim relief is brought by way of urgency and is couched in
a Part A pending the final determination of Part B . Part B, firstly concerns the
rescission and setting aside of a prior Court order which was granted by
Lukhaimane AJ on the 7 November 2022 in case number 10738/2022 [the order]
in favour of Silwood and Brixiclox [collectively the respondents] . The applicants
seek to rescind and set aside the order which directed the third respondent, the
controller of petroleum products [the controller] to issue Silwood with a site licence
and, to accept and consider Brixiclox’s retail licence [rescission relief] . The
rescission relief is brought in terms of uniform rule 42(1)(a) and the comm on law.
Other than the rescission relief, the applicants bring a judicial review of the
controller’s decision to grant both the site and retail licences in terms of the
Promotion of Administrative Justice Act 3 of 2000 [PAJA]. Both the recission and
PAJA r elief in Part B [main application] were brought in their entirety with the
interim relief.
[3] The respondents oppose both the interim relief and main application and
have launched a counter application seeking to declare the applicants ’ extant
internal appeal brought on the 4 December 2024 in terms of section 12A of the
Petroleum Act 120 of 1977 [the Act] against the controller’s decision to approve
the retail licence [appeal], null and void [declaratory relief]. The declaratory relief
was not brought on an urgent basis nor argued on the date of the hearing . The
was not brought on an urgent basis nor argued on the date of the hearing . The
fourth to sixth respondent s have filed a notice to abide and the controller has not
opposed the interim relief nor filed any papers . Interim relief is sought against the
sixth respondent.
[4] The applicants contend that the nub of the interim relief is to preserve the
status quo, the position prior to the prospect of the site being used for a fuelling
station again. Procedurally this has partially been achieved notwithstanding the
fact that the controller has issued a site to Silwood and retail licence to Brixiclox .
The development of the fuelling station on the site has been placed on hold
pending the finalisation of an appeal lodged with the City Council of Cape Town
[City] and the retail of petroleum products has been placed on hold pending the
finalisation of the internal appeal process.
[5] However, on the 30 September 2025 the applicants contend that their
procedural advantage was disturbed by the City granting the respondents a
consent use right to use the site as a fuel service station. Now that their appeal
with the City has been refused, the applicants argue if the status quo is not
urgently preserved in the interim, they will suffer harm which, they will not be
recover irrespective of the outcome of the main application.
[6] To this end, t he applicants have brought both Part A and B by the 13
October 2025. The record to be con sidered in Part B too has been filed . Any
consequential procedural delay in the determination of the main application has
therefore been curtailed in this way.
[7] Before dealing with the interim relief the aspect of its urgency as well as a
self-standing application to strike which was brought by the applicants and filed on
the 6 November 2025 requires attention. Regarding the strike relief, Counsel for
the applicants appeared to hold instructions to argue and move for the relief at the
date of this hearing. In light of the fact that the notice of motion foreshadowed a
different intention, namely, to move for the strike relief at the hearing of the main
different intention, namely, to move for the strike relief at the hearing of the main
application, this Court enquired whether he indeed at this stage intended to argue
it. After consideration, Counsel confirmed that it would only be moved at the main
application, but this Court was asked to consider the necessity of the applicants to
bring the strike relief when considering the content of the answering affidavit filed
by the respondents as a factor when considering costs.
[8] To this end, this Court sets out the basis for its ruling on urgency and why it
then entertained the merits of the interim relief.
URGENCY
[9] The aspect of urgency was debated at length. The highwater mark of the
applicants’ argument was that urgency was triggered by their knowledge of their
unsuccessful appeal by the City on the 30 September 2025 regarding the land use
zoning of the site . In short, t he respondents applied to the City seeking various
authorisation in terms of the City’ s Municipal Planning Bylaw of 2015 [Bylaws] to
enable them to develop the site in a particular manner . Notwithstanding, the
applicants still contend that the general business zoning 1 in terms of the Bylaws
does not permit, as a primary use, a fuel station on the site.
[10] The unsuccessful outcome of th e City appeal, argues the applicants,
means that the respondents are now able to use the site for a fuel station and now
armed with a site licence by order , Silwood can begin construction to develop the
site for the retail of petroleum products. In other words, for the first time since the
applicants possessed knowledge of the order in November 2024 , the
commencement of certain activity on the site has now fully been sanctioned. The
status quo being disturbed and the need to preserve now becomes urgent to
prevent harm.
[11] Before launching their envisaged Part A on an urgent basis, the applicants,
on the 1 October 2025, a day after the knowledge of the City appeal, attempted to
obtain a written undertaking from t he respondents via their attorney of record . In
this way they sought to acquire a n undertaking from the respondents not to
commence with construction on the site , as authorised by the City, prior to the
determination of the main application.
[12] The request for an undertaking was not simply met with: ‘no we don’t hold
instructions to provide you with an undertaking ’ but rather the following: “ We
consider you to be inept and incompetent and not deserving of any serious
consideration by ourselves or our clients.” This reply appears to strike at the
competency of the applicants’ attorneys and does not engage with subject matter.
As will become clearer this tone and avoidance of dealing with the applicants’
allegations spilt over in the respondents’ answeri ng affidavit. T he strike relief
suddenly becomes clearer.
[13] The applicant’s contention that they had no other option then but to launch
the interim relief on an urgent basis and this they did without delay.
[14] The thrust of the respondents attack regarding urgency in argument was
based on the applicants ’ knowledge of the order, ex facie their letter dated the 10
March 2025 in which the deponent to the respondents’ affidavit states:
“26.1.4 In RC28 which is dat ed the 10th of March 2025 the EMAIL
(applicants’ attorneys – own emphasis) confess clearly and
unequivocally that they knew of and had possession of court order
in 10736/2022 and knew of its contents, which they then obviously
gleefully regurgitated in the ir letter together with their own ill -
conceived and meritless interpretation.”
[15] Flowing from paragraph 26.1.4, the respondents contend that the applicants
have provided no valid explanation why it’s taken them four (4) months to seek out
the urgent court. Furthermore, other than to contend why the City appeal is a red
herring, the respondents do not engage with the date of the 30 September 2025
upon which the applicants contend urgency was triggered.
[16] The applicants do not rely on the knowledge of the order disturbing the
status quo, resulting in urgent interim relief. This was explained by the other
procedural steps taken by them to ensure the status quo. Furthermore, the
procedural steps taken by them to ensure the status quo. Furthermore, the
respondents Counsel conceded that not factual disputes arise from the filed
papers. In consequence , the allegation of harm and the facts in support thereof
which will flow if the interim relief is not granted , on an urgent basis , was not
placed in dispute.
[17] The respondents’ Counsel also argued that although urgency is in the
discretion of the Court, it would be better to deal with the merits of the matter, i.e.,
the interim relief.
[18] This Court having regard to the arguments and for the reasons set out
above and placing weight on both parties expressed need to deal with the merits
of the interim application, this Court ruled that the matter was urgent, and it is
enrolled as such. Argument on the merits followed.
DISCUSSION OF MERIT OF INTERM RELIEF
[19] The respondent s have not, ad seriatim , dealt with any of the applicants’
allegations in support of the interim relief. The respondents did not consider each
material allegation as prescribed by the uniform rules. Instead, the depon ent, a
member of the Silwood and, on behalf of Brixiclox, merely rejected the entire
founding affidavit and in the preamble to the rejection stated under oath that:
“2.3 The founding affidavit is peppered with insane assumptions,
unacceptable hearsay, baseless speculation, groundless op inions,
unsubstantiated and baseless dogma as well as blatantly obtuse
statements. We do not propose to deal with each and every such
averment, therefore, unless there is anything in this affidavit that is
fully and entirely reconcilable with the founding affidavit, the founding
affidavit is rejected by us as false and baseless;”
[20] Without the respondents providing the applicants nor this Court with exactly
which averments they, in the founding affidavit, consider entirely reconcilable with
their own version, none is apparent. It is not for the applicants nor for the Court to
trail through the answering affidavit to find the answer. In consequence, reading
the answering affidavit without any clarification, the applicants’ founding affidavit
appears to be rejected as false and baseless in its entirety.
[21] Conversely, and in argument at the hearing , the respondents’ Counsel
repeatedly conceded that no factual disputes ar ise on the papers. The founding
papers do not stand to be rejected as false on that concession alone. The
applicants’ Counsel rightly accept ed the concession and argued that if the
applicants’ allegation that it will suffer harm should the status quo not be preserved
is as a fact not disputed, nor the facts in support thereof, such should justify the
interim relief itself. This too , he argued was apparent due to the lack of the
respondents specifically denying those allegations ad seriatim on the papers. The
consequence is that the prerequisites of interim relief are met in that, a prima facie
right to be protected from such harm aris es as alleged and therefore established.
Flowing then, a reasonable apprehension of irreparable harm must surely have
been established . Harm translates into prejudice. In this way, the balance of
convenience must tip in favour of the applicants as any prejudice suffered by the
respondents by granting the interim relief will not be cured by not granting the
interim interdict as the internal appeal is still pend ing. Considering the all the
prerequisites of an interim interdict as a whole, then the absence of an alternative
remedy after the applicants have sought and undertaking from the respondents
and from the controller , is the only suitable remedy since the si te licence by order
remains effective. The applicants should then be entitled to their interim relief.
[22] The respondents’ Counsel understood the weight of the concession he
made that is why the thrust of his argument which followed, was to place emphasis
on the Court’s discretion having regard to the applicants’ prospects of success in
the main application.
Preliminary issues raised in the main application
the main application.
Preliminary issues raised in the main application
[23] The respondents in answer to the main application raise a number of
preliminary issues relating to non -joinder of the City, mis -joinder of the fourth
respondent, Astron Energy (Pty) Ltd [Astron]. The applicants do not seek relief
from Astron. They too seek to disturb the applicants standing to launch the main
application.
[24] Having regard to the argument on the papers of joinder and mis -joinder, the
respondents’ Counsel, in argument , confined his attack to the standing issue in
bringing the main application. This is simply because the prospects of success of
joinder issues, at this stage, won’t necessarily be a factor determining the success
of the merits. In amplification, the applicants do not seek relief from Astron and
Astron has filed a notice to abide . Furthermore, as far as the City as a party is
concerned, the respondents on their own version refer to the City’s decision a red
herring as its decision does not affect the main application.
[25] Returning then to the standing issue regarding the rule 42(1)(a) rescission
relief, the respondents contend that the applicants are not affected parties, they
were not cited in the 2022 when the order was granted and as for those reasons,
they lack the standing to bring the re scission relief. This argument is too narrow.
On the common cause facts, the order was taken in the absence of the applicants.
Such absence includes the absence of a party who has an interest in the subject
matter of the judgment or order , such being sufficiently direct and substantial to
enable him or her to have intervened in the original application upon which the
judgment was given or order granted. 1 Flowing from the commentary and on the
objective facts, the word “ absence” must surely then include the applicants who
were not joined at the material time and/or wished if they could have, intervened.
[26] The applicants in their founding affidavit allege th at their interest and
standing arises as their status as neighbours in close proximity of the site, the first
applicant which operates a fuelling station under a Shell franchise is situated 40
meters from the site, the second applicant which operates a fue l station is located
meters from the site, the second applicant which operates a fue l station is located
200 meters from the site and the Trust, the third applicant is the owner of property
20 meters from the site.
[27] Besides that , procedurally, it can never be said the applicants are not
affected parties, this much is conceded by the resp ondents who, accept, albeit at
1 Erasmus Superior Court Practice, Farlam, Fichardt and Van Loggerenberg, B1-308, 2007
least the first and second applicants , as competitors in the same market.
Furthermore, the City entertained the applicants’ objections against the
respondents’ application as parties who could be affected by their decision .
Affected parties surely have a sufficiently direct and substantial interest in the
outcome of the relief sought in 2022 . The answer to this rhetorical question has
been demonstrated by the applicants who have lodged an appeal in respect of the
decision to issue a retail licence. All of this is dealt with by the applicants in their
founding papers. Such is sufficient for this a Court to find that the applicants will
succeed to ward of this preliminary issue.
Prospect of success of the rescission relief
[28] To appreciate the argument is to take cognisance of certain background
facts. The most relevant is that previously and on the 11 February 2007, the
controller issue d a site licence to Chevron South Africa (Pty) Ltd, now Astron
[Chevron], for the operation of a fuel retail facility which was to be conducted by
Zingwa Motors CC t/a Premier Motors [Zingwa]. Zingwa , on the sa me day , was
issued a retail licence.
[29] On the 28 November 2017, Zingwa ceased trading and in December 2017,
Zingwa and Chevron attended to the decommissioning of the site and the removal
of fuel tanks, pipe works, pumps and electrical cables. In 2017 Chevron’s lease it
concluded with Silwood, expired. On the 16 January 2018, the controller received
a letter from both the Zingwa and Chevron informing it that Zingwa had closed for
business. The controller on the 25 January 2019 confirmed in letters th e surrender
of such licences.
[30] On the 21 July 2021 after the lease between Silwood and Chevron had
expired, Silwood submitted an application to the controller for the transfer of the
site licence from Chevron to it. Thereafter on the 4 August 2022 Silwood and
Brixiclox brought the 2022 application and obtained the order. In essence , the
Brixiclox brought the 2022 application and obtained the order. In essence , the
applicants argue that Silwood now sought to have a historic cancelled and
surrendered site licence transferred to it as the site owner by Court order. This it
done by asserting that the surrender of the licences was unauthorised and , as
such, the cancellation thereof erroneous.
[31] Other than the fact that the order was sought in the applicants’ absence, the
applicants base the rescission relief on the assertion that the respondents failed to
disclose material facts to the Court which , if disclosed, would have prevented the
order from being granted and that the provisions of PAJA were circumvented . The
latter based on the fact that the controller’s de facto made a final decision to
accept the surrender of the licences as expressed in the letters dated 25 January
2019. That final decision stands and was never reviewed and set aside to
accommodate the premise upon which the order was sought and granted in the
first place [PAJA point].
[32] The respondent did not argue the PAJA point . Other than relying on what
the respondent’s Counsel termed, “-the undeniable and irrefutable basis is section
2D of the Act to validate the manner of the transfer of the site licence ’” by order to
Silwood nothing more in argument was raised.
[33] Both Counsel on the 2D argument invited the Court to consider the
Constitutional Court [CC] matter of Snyders N.O. v Louistef (Pty) Ltd and Others .2
In so doing, this Court considers paragraph 12 in which the CC stated:
“[12] The new dispensation under the PPA (Petroleum Products
Amendment Act, 2003 – own emphasis) appears to be based on site
licences being issued only to owners of property. The transitional
provisions, however, allowed lessees who were operating as site
licence holders to continue doing so and, in addition, to transfer
these site licences to new lessees and new owners during the
existence of the lease in terms of which it held the site licence. This
exceptional entitlement is in line with the overall eventual s cheme
that site licences should be issued only to owners. When the lease of
a new lessee expires, the site licence can then be acquired (own
a new lessee expires, the site licence can then be acquired (own
2 CWA Snyders NO as Trustee of the Louis Snyders Familie Trust v Louistef (Pty) Ltd
and Another [2017] ZACC.
emphasis) only by an owner. There is no casus omissus (omitted
eventuality – own emphasis). Existing owners (Silwoo d – own
emphasis) may, in the absence of a lessee holding the site licence
under the transitional provisions, in their own right apply (own
emphasis) for site licences.”
[34] At the time Silwood applied for a 2D transfer in July 2021, the applicants
contend, inter alia, there was no valid site licence to transfer, because, the licence
had been accepted as surrendered, there was no going concern as contemplated
in terms of section 2B(3) of the Act, there was no valid retail licence to speak of
and, the lease agreement had already expired . All of this together rendering any
transfer of a site licence legally incompetent.
[35] The respondents accepted that if there is no valid retail licence there can be
no valid site licence. The Brixiclox app lied for a retail licence and, prayer 2 in the
order directed the controller to consider it. It flows then that i f its surrender in 2019
was accepted then no valid site licence could have been transferred at the
material time.
[36] Having regard to the argumen ts this Court finds that there is sufficient
evidence to support the argument by the applicants that a prospect of success has
been demonstrated.
[37] The rescission relief and PAJA relief are brought in terms of different and
distinct means, the enquiry into both of them is thus distinct. However, both are
brought under Part B. The prospect of success demonstrated in one is sufficient to
establish a prospect regarding certain prayer brought in Part B , constituting
success. Notwithstanding, the respondents did not argue the prospects of success
of the PAJA application although the respondents’ Counsel did not relinquish what
was stated on the papers nor in written argument.
[38] The prospects of success regarding the PAJA relief are not as compelling
as the recission relief. The respondents’ argument that the ‘decision’ vis-à-vis the
as the recission relief. The respondents’ argument that the ‘decision’ vis-à-vis the
site licence was not an administrative action but by Court order is compelling
----
hence the rescission relief and this Court merely notes that the internal appeal
regarding the retail licence is not final.
[39] Notwithstanding as reasoned, because the prospect of success in the
recission is compelling and its outcome may cater for a disturbance of the status of
the site licence, the PAJA relief may not even become necessary.
[40] Furthermore, no opposition exists regarding the interim relief affecting the
sixth respondent, the Minister of Mineral Resources [the Minister] . The Minister
has filed a notice to abide. Be that as it may, having regard to all the facts , the
discharge of the applicants in meeting the requirements of interim relief including
the prospect of success , as discussed, to enable this Court to exercise its
discretion has been met. Part A must succeed.
COSTS
[41] There is no reason why costs should not follow the result. However, the
applicants in argument seek punitive costs on attorney client scale. Although this
Court appreciates that it may have been necessary for the strike relief, such was
not ventilated before it.
[42] The Court hearing the main application , when the issues on the papers and
how raised, including as against the legal teams, will be ‘in full flight ,’ that the
Court will be in a better po sition to decide what weight to place on the applicants
aggrievances and how to show a measure of its displeasure, if so inclined.
[43] Therefore, at this interim stage, this Court is not inclined to do so.
[44] The following order:
1. The forms and service required by the Uniform Rules are dispensed
with, any non -compliance therewith as there may have been on the
part of the Applicants are condoned and the matter is enrolled on an
urgent basis, as contemplated in Uniform Rule 6(12) of the Uniform
Rules of this Court.
2. Pending the determination of Part B of this application, the:
2.1 First and Second Respondents are interdicted and restrained
from commencing any construction, renovations or building
works for a fuel service station at Erf 4[...], the property
situated at 4[...] S[…] Road, Rondebosch, Cape Town
("Site");
2.2 First and Second Respondents are interdicted and restrained
from commencing to operate, the operation of or trading as
fuel service station at the Site;
2.3 the Sixth Respondent is interdi cted and restrained from
considering any applications by the First and/or Second
Respondents for the issue and/or approval of any consents,
approvals or licences in terms of the Petroleum Products Act
120 of 1977.
3. The First and Second respondents, jointly and severally are ordered
to pay the costs of this application on a scale as party and party,
Counsel’s fees taxed on scale B.
___________________________
L.A. RETIEF
Judge of the High Court
Gauteng Division
Appearances:
For the Applicants: Adv NB De Wet
Cape Town Chambers
Instructed by attorneys: Dingley Marshall Lewin Incorporated
Tel: (021) 200 0770
Email: matthew@dmllaw.co.za /
megan@dmllaw.co.za
C/O Savage Jooste & Adams
Email: yolanda2@savage.co.za
Ref: MT/MAT757
For the Respondents: Adv B. Savvas
Cell: 084 951 3157
Email: boris@asbex.blz
Instructed by attorneys: Murray Kotze & Associates
Tel: (012) 346 0934
Ref: JM Kotze/40860/MTR
Date of hearing: 14 November 2025
Date of judgment: 17 November 2025