IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO. 003211/2024
In the matter between:
FORSTER PATRICK MHLONGO Applicant
And
THE MINISTER, DEPARTMENT OF MINERAL First Respondent
RESOURCES AND ENERGY
THE CONTROLLER OF PETROLEUM PRODUCTS Second Respondent
THE TRUSTEES FOR THE TIME BEING OF THE Joint Third Respondent
PETER NEVES TRUST, BEING PRICILLA FRANCIS
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 20 April 2026
Signature: _
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RAMSBOTTOM and CHRISTOPHER GILBERT NEVES N.N.O
JUDGMENT
NYATHI J
A. Introduction
[1] This is a Rule 53 review in which the Applicant seeks to review and set aside the
Controller of Petroleum Products’ decision to grant site and retail licences to the
Third Respondent in terms of the Petroleum Products Act 120 of 1977 (“the
PPA”). Before the merits could be reached, the Third Respondent raised a point
in limine that the Applicant had failed to exhaust internal remedies prior to
launching review proceedings, as contemplated in s 7(2) of the Promotion of
Administrative Justice Act 3 of 2000 (“ PAJA”), relying in particular on Koyabe
and Others v Minister for Home Affairs 2010 (4) SA 327 (CC).
[2] The parties were agreed that the narrow issue I must determine at this stage is
whether the review is premature for want of exhaustion of internal remedies or,
if not exhausted, whether the Applicant should be exempted under s 7(2)(c) of
PAJA.
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B. Brief background
[3] The Controller approved the Third Respondent’s fresh applications for a site and
retail licence concerning a filling station at Masibekela, Mpumalanga. The
Applicant, who operates a nearby station, had objected to the applications. After
the objection was overruled, the Controller indicated that licences would be
issued upon satisfaction of limited conditions.
[4] The Applicant lodged an internal appeal to the Minister in terms of s 12A of the
PPA within the 60 ‑day period. The appeal was not decided within 90 days, the
period stipulated in regulation 33, whereafter the Applicant instituted review
proceedings in this Court. These factual averments appear from the Applicant ’s
heads of argument with reference to the indexed Rule 53 record.
C. The point in limine
The Third Respondent’s case
[5] The Third Respondent contends that:
(i) an internal remedy—an appeal to the Minister under s 12A of the PPA —
was available and has not been exhausted; and
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(ii) the Constitutional Court in Koyabe held that litigants must ordinarily pursue
such remedies before approaching a court; the mere lapse of an internal time
period does not amount to “exhaustion”.
The Applicant’s stance
[6] The Applicant accepts that a section 12A appeal is an internal remedy but argues
that:
(i) a timeous appeal was lodged;
(ii) despite regulation 33 prescribing a 90 ‑day period for the Minister to
decide appeals, no decision issued; and
(iii) the remedy proved ineffective and inadequate, warranting an exemption
under section 7(2)(c) of PAJA. In the alternative, the Applicant contends
that, on a proper reading of the PPA and regulations, the internal remedy
had been exhausted once the Minister failed to decide within the
prescribed period.
D. Legal framework
[7] Section 7(2) of PAJA provides that, subject to paragraph (c), no court shall
review an administrative action unless any internal remedy provided for in any
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other law has first been exhausted. Paragraph (c) empowers a court, in
exceptional circumstances and in the interests of justice, to exempt a litigant
from the obligation to exhaust internal remedies.
[8] In Koyabe, the Constitutional Court explained that the duty to exhaust internal
remedies is not absolute; it “must not be used by administrators to frustrate
efforts of an aggrieved person or to shield administrative action from judicial
scrutiny”. Courts consider the availability, effectiveness and adequacy of the
internal remedy. Crucially, the Court held that the mere lapsing of the internal
time‑period does not by itself constitute exhaustion, nor does it automatically
qualify as an exceptional circumstance—each case turns on its facts.
[9] The Supreme Court of Appeal has likewise emphasised that the enquiry is
remedial and pragmatic. If the so‑called “internal remedy” is not a true appeal or
is otherwise ineffective or inadequate, it will not preclude access to court;
conversely, where an effective internal remedy exists, courts must ordinarily
insist on its use unless exemption is justified.
[10] Within the specific petroleum licensing regime, the PPA provides an appeal to
the Minister (s 12A), which the Minister is obliged to decide with reasons within
the period specified in the regulations (reg 33 prescribes 90 days).
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E. Application to the facts
[11] It is common cause that an internal appeal under section 12A was lodged within
the 60‑day period. The dispute concerns the legal consequence of the Minister’s
inaction beyond 90 days and whether, on these facts, the internal remedy
remained effective and adequate.
[12] I accept that Koyabe cautions that the mere lapse of an internal period does not
equal exhaustion, and that litigants cannot bypass internal procedures simply
because time has passed. But Koyabe also instructs courts to interrogate
effectiveness and adequacy: where an internal remedy is illusory in practice, or
administration is supine such that the remedy cannot realistically provide timely
redress, exceptional circumstances may arise to exempt the litigant.
[13] Three features persuade me that this is such a case:
(a) A timeous appeal plus prolonged administrative inaction contrary to the
regulatory framework. The record shows that the Applicant lodged the
appeal and that no decision issued within the 90 ‑day period contemplated
by regulation 33. That period is not a mere internal aspiration; it reflects a
legislative judgment that appeals in this sector demand prompt resolution.
The Minister ’s non ‑compliance rendered the remedy ineffective for the
purpose it was designed to serve.
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(b) Concrete prejudice from delay in a fast ‑moving commercial and
regulatory setting. The papers show that the Controller’s decision clears the
way for an operational filling station with significant sunk en costs, and that
the dispute concerns market entry in a confined geographic area. Delay
risks either entrenching an unlawful status quo (if the review ultimately
succeeds) or stifling legitimate competition (if it does not). An internal appeal
that is not decided with regulatory promptitude cannot give adequate
redress.
(c) The purpose of the exhaustion rule. Exhaustion serves to allow the
administration to correct its own errors and to promote administrative
efficiency. Here, the Minister had the opportunity but failed to act timeously.
To insist, now, that the Applicant remain in administrative limbo would
convert exhaustion into a shield against judicial scrutiny —the very misuse
cautioned against in Koyabe.
[14] I therefore find that, although the internal appeal existed and was invoked, the
internal remedy was ineffective and inadequate in the particular
circumstances. These constitute exceptional circumstances justifying an
exemption under section 7(2)(c) of PAJA.
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F. Conclusion on the point in limine
[15] The point in limine fails. Either the Applicant exhausted the internal remedy to
the extent reasonably possible, or—more precisely—the Applicant is exempted
from further pursuit of an ineffective remedy under section 7(2)(c). The review
is therefore properly before this Court.
G. Introduction to the merits
[16] As already stated above, this is an opposed review in terms of Rule 53. The
Applicant, Mr Forster Patrick Mhlongo , seeks to review and set aside
administrative decisions under the Petroleum Products Act 120 of 1977 (“PPA”),
taken by or under the authority of the Controller of Petroleum Products (the
Second Respondent), which culminated in the grant of site and retail licences
to the Peter Neves Trust (the Third Respondent) for a filling station at
Masibekela, Mpumalanga.
[17] The Third Respondent opposes, contending that the review is misconceived, that
it amounts to an attempt to revisit matters already dealt with in urgent motion
proceedings, and that the record reveals no basis to interfere with the
Controller’s decisions. T he Third Respondent further raises process -related
objections (including allegations of satellite skirmishes and the Applicant’s
litigation conduct).
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[18] The parties agreed that the Court should determine the review on the merits,
without deciding questions of urgency. I proceed accordingly.
H. Procedural history and the Pretoria urgent interdict
[19] Before this review, the Applicant brought an urgent application to interdict
utilisation of the Trust’s licences pending internal appeal and review. On 1
September 2023, D AVIS J dismissed the application for interim relief, holding
inter alia that the Applicant had not shown a prima facie right nor irreparable
harm on the motion record then before him. The judgment did not determine the
merits of any review; it refused interim protection pending further processes.
[20] It is common cause that the urgent court judgment stands; but it does not bar
adjudication of a Rule 53 review on the administrative record. I accordingly treat
it as relevant background and not as res judicata of the review grounds.
I. Statutory and regulatory framework (abridged)
[21] Under s ection 2A of the PPA, the Controller issues site and retail licences.
Sections 2B and 2C set the licensing objectives and require that decisions give
effect to transformation and sustainability considerations. The Regulations
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specify evaluation duties: for site licences, the Controller must verify the
application, publication and that “there is a need for a site” and that the site “will
promote the licensing objectives” (Reg 6); for retail licences, the Controller must
verify publication and be satisfied that the business is economically viable and
that it will promote the statutory objectives, including that the net present value
(NPV) is correctly calculated and positive (Reg 18). These were summarised in
the parties’ heads.
[22] The Applicant’s heads emphasise that the two licences are inter -dependent,
must be evaluated in tandem, and that the Controller’s function is constrained by
the empowering provisions and the Regulations; in brief, need/sustainability
and economic viability are the core factual jurisdictional criteria. [emphasis
added].
J. The record and the parties’ submissions
[23] The Applicant’s central attack arises from the Rule 53 record, which he says
shows material misdirections and factual errors by the decision-makers:
23.1 A Site Visit Report recorded “There are no competitor filing
stations within approximately 15 km radius ”, whilst on any
version the Applicant ’s station is ±1.7 km away . The Applicant
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contends this is false, repeated in internal memoranda, and
infected the decision-making process.
23.2 The Applicant further submits the record fails to demo nstrate a
rational assessment of need and vi ability against the licensing
objectives, as required by the Regulations; bare assertions and
conclusory statements are said to predominate.
[24] The Third Respondent argues, in essence, that:
24.1 The Applicant’s conduct has been dilatory and opportunistic; his
interim bid was refused, and he now attempts to re -argue the
merits through review.
24.2 The licences were lawfully granted, publication occurred,
objections were dealt with, and the Controller considered the
Applicant’s proximity and business. The attack amounts to
disagreement with the outcome, not a reviewable irregularity.
24.3 Relief should be refused and punitive costs considered.
[25] Both parties traversed broader themes of lis pendens/ forum shopping in
relation to proceedings in Mpumalanga and Gauteng. For present purposes,
those contentions go to costs and abuse; they do not displace the Court’s duty
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to decide the lawfulness or otherwise of the impugned administrative action on
the record.
K. Issues
[26] The review raises four principal questions:
(i) Was the Controller’s decision materially influenced by errors of fact apparent
on the record (notably, the Site Visit Report’s “no competitor within 15 km”)?
(ii) Did the decision-makers properly apply the licensing criteria in ss 2B–2C and
Regs 6 & 18 to the facts placed before them?
(iii) What is the legal effect of the Pretoria urgent judgment on this review?
(iv) Remedy and costs.
L. Analysis
(1) The Pretoria urgent court judgment
[27] The urgent interdict was refused because the Applicant failed to meet the interim
interdict thresholds on the motion material then before the Court. D AVIS J
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explicitly assessed the Setlogelo1 factors and concluded that a prima facie right
and apprehension of irreparable harm were not made out, inter alia noting the
Trust’s disclosure of the Applicant’s business and the absence of quantified harm
to the Applicant’s operations. That outcome does not determine whether the
administrative decisions, on their record, withstand review. I therefore treat the
earlier judgment as neutral to the review merits.
(2) Material error of fact / failure to consider a relevant consideration
[28] A material error of fact that is objectively verifiable and that played a role in the
decision-making process is a recognised ground of review under the umbrella of
lawfulness/rationality (and under PAJA2 where applicable). The Site Visit Report
forms part of the Controller’s evaluative corpus. On the Applicant’s case (not
persuasively rebutted on the papers before me), it states there are no competitor
stations within ~15 km, whereas the Applicant’s stati on lies about 1.7 km away.
The Applicant has consistently maintained this distance; and on any
common-sense view, the existence of an adjacent competitor is highly relevant
to need and viability.
1 1914 AD 221.
2 Promotion of Administrative Justice Act, Act 3 of 2000 (“PAJA”).
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[29] The Third Respondent answers that the Controller was aware of the Applicant’s
business, and that the Applicant himself placed nothing concrete before Davis J
at the urgent stage. But this review turns on the Rule 53 record, not on the
Applicant’s prior aff idavit lacunae; and if the record contains an express,
repeated error denying the existence of any competitor within 15 km, and that
error is not obviously corrected elsewhere in the reasons chain, the risk of
material misdirection is self -evident. The rec ord-based complaint is therefore
qualitatively different from the urgent motion footing.
[30] I accept that licensing is polycentric and that the Controller is not bound to a
single metric or a fixed radius. But Reg 6(2) (site) and Reg 18(2) - (3) (retail)
require the Controller to be satisfied, on verified material, regarding need and
economic viability (including a positive and correctly calculated Net Present
Value [“NPV”]). That exercise cannot be rationally performed on an evaluative
premise that erases a direct competitor in the immediate market. The
existence and proximity of a competing retail site are textbook relevant
considerations. A positive NPV calculated on a false assumption as to
competitive landscape is vulnerable to challenge.
[31] On the totality of the record portions cited to me in the heads, the Site Visit
Report’s 15 km statement was echoed in later internal summaries. The Applicant
has demonstrated that the Controller’s process, as reflected in the record, was
tainted by an objective factual error that goes to the heart of need and viability.
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The decision accordingly falls to be set aside for material error of fact and failure
to consider a plainly relevant consideration.
(3) The legal platform
[32] The Applicant pleaded both legality and PAJA review grounds in his heads. As
the point is ultimately not dispositive on the present facts (given the objective
error), I proceed on the basis that either platform suffices on the record before
me. In any event, the impugned decisions are administrative action in the PAJA
sense, and a legality challenge lies in the alternative; on the Court’s finding of a
material factual misdirection and failure to engage relevant criteria , the
decisions cannot stand.
(4) Forum shopping / lis pendens
[33] The Third Respondent’s heads contain serious allegations of forum shopping
and duplicative proceedings. The Pretoria urgent judgment pre -dated the
Mbombela application. Whatever may have occurred elsewhere does not, on
this record, constitute a bar to the present review. It may, however, have a
bearing upon costs.
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M. Remedy
[34] The ordinary remedy in review is to set aside and remit to the decision -maker,
unless exceptional circumstances justify substitution. On the present record, the
Court does not have a full contemporaneous evidentiary matrix on need, NPV
and the licensing ob jectives shorn of the identified misdirection. Remittal is
therefore appropriate, with directions to ensure a proper, updated and rational
evaluation.
[35] It follows that the validity and operation of the Trust’s licences must be
suspended pending the reconsideration, with appropriate safeguards to protect
the public interest and to avoid undue prejudice to third parties. Any trading
pending licence, if applicable, must be regulated by the Controller in terms of the
PPA on reconsideration.
N. Costs
[36] It is trite that costs are in the discretion of the Court. The point in limine taken by
the Respondents was neither frivolous nor contrived . Koyabe is a strong
authority for insisting on internal remedies. However, the Applicant has
succeeded. Accordingly, costs of the point in limine shall follow the result.
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[37] The Applicant succeeds on the core review as well . The Controller bears
primary responsibility for the decisions under review and should bear costs. The
Trust, having opposed on the merits, is jointly liable for costs to the extent of its
opposition. I see no basis for punitive costs on the papers; party-and-party
costs will suffice.
O. Order
[38] On the point in limine:
i. The point in limine is dismissed.
ii. The Applicant is exempted from the obligation to exhaust internal
remedies in terms of s ection 7(2)(c) of PAJA. The costs of the point in
limine are to be paid by the Respondents jointly and severally, on a party
and party scale, the one paying, the other to be absolved.
[39] On the review application: The following order is made:
39.1 The decisions of the Controller of Petroleum Products to grant
the site licence and retail licence to the Trustees for the time
being of the Peter Neves Trust MT 1266/1966 in respect of the
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Masibekela site (as reflected in the Rule 53 record) are reviewed
and set aside.
39.2 The matter is remitted to the Controller for reconsideration de
novo within 90 (ninety) days of this order, on a complete and
updated evidentiary record, and in accordance with ss 2B–2C of
the PPA and Regulations 6 and 18; the Controller must, inter
alia:
(a) Correctly identify and assess existing competitor filling
stations and their proximity;
(b) Properly evaluate need, sustainability and economic viability,
including a correctly calculated NPV; and
(c) Demonstrate in the written outcome the Controller’s
verification and reasoned engagement with relevant
considerations.
39.3 Pending the reconsideration in para 38.2, the operation of the
impugned site and retail licences is suspended. This does not
preclude the Controller from issuing any interim regulatory
directions permitted by the PPA and Regulations in the public
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interest, provided such directions are reasoned and
communicated to the affected parties.
39.4 Nothing in this order determines or pre-judges any future appeal
or review that may arise from the Controller’s fresh decision.
39.5 Costs: The Second Respondent (Controller) shall pay the
Applicant’s costs, including the costs of counsel; the Third
Respondent (the Trust) shall be jointly and severally liable for
such costs to the extent of its opposition on the review record,
the one paying the other to be absolved.
_____ __
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Appearances
For the Applicant: Adv B G Savvas; instructed by Murray Kotze & Associates
Attorneys.
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For the Third Respondent (the Trust): Adv D J Sibuyi (Trust Account
Advocate); instructed by Mthunzi Chambers.
Date of hearing: 19 August 2025
Date of Judgment: 20 April 2026
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 20 April 2026.