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[2026] ZAMPMBHC 45
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NAD Property Income Fund (Pty) Ltd and Another v Tivane and Others (2692/2022) [2026] ZAMPMBHC 45 (25 May 2026)
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THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO. 2692/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE
25 May 2026
SIGNATURE
In the matter between:
NAD
PROPERTY INCOME FUND (PTY) LTD
1
ST
APPLICANT
ERF
6 HIGHVELD TECHNOPARK
INVESTMENTS
(PTY) LTD
2
ND
APPLICANT
And
NELSON
WISANE TIVANE
1
ST
RESPONDENT
ELEGANT
FUEL (PTY) LTD
2
ND
RESPONDENT
THE
BUSHBUCKRIDGE
LOCAL
MUNICIPALITY
3
RD
RESPONDENT
THE
MPUMALANGA PROVINCIAL
GOVERNMENT
DEPARTMENT OF
AGRICULTURE.
RURAL DEVELOPMENT,
LAND
AND ENVIRONMENTAL AFFAIRS
4
TH
RESPONDENT
THE
MINISTER OF ENERGY FOR
THE
REPUBLIC OF SOUTH AFRICA
5
TH
RESPONDENT
THE
CONTROLLER OF PETROLEUM
PRODUCTS
IN THE NATIONAL
DEPARTMENT
OF ENERGY
6
TH
RESPONDENT
CORAM:
MANGENA AJ
JUDGMENT
Delivery:
This matter was heard on 21 May 2026,
and judgment was reserved. This judgment was delivered by uploaded to
CaseLines
on 25 May 2026.
Mangena AJ:
[1] NAD Property Income
Fund (Pty) Ltd and Erf 6 Highveld Technopark Investments (Pty) Ltd
brought an application for leave to appeal
the whole of the judgment
and order delivered on 11 March 2026 dismissing their application
with costs. They say that the court
ignored their version regarding
the time they became aware of the facts regarding the existence of
the filling station, namely
in May 2022 when they saw a canopy and
other things associated with a petrol station being constructed. They
also say that the
court was wrong to consider the delay defence when
same was not raised in the answering affidavits by any of the
respondents. By
accepting the defence not raised in the papers, so
the argument went, the court violated trite principles in motion
proceedings.
[2] They further contend
that the court was wrong to dismiss the application on the sole
ground of delay because there were other
two issues which were
required to be determined as separate and distinct issues unrelated
to the PAJA review. The two issues are
a declaratory order relating
to the lapse of the retail licence in terms of Regulation 24 of the
Petroleum Products Act and the
final interdict relating to the
construction of the filling station in contravention of the National
Building Regulations and Building
Standards Act, 103 of 1997.
[3] When the application
was heard, I hinted to the parties that the submissions made by Mr
Venter, counsel for the applicants,
on the failure to consider the
prayers for a declaratory order and the final interdict are "keeping
me awake’ in the
sense that they are worth considering. I
indicated that I will consider the papers filed in view of the
submissions made before
giving my ruling on the application for leave
to appeal.
[4] I have indeed gone
back to the judgment as well as the pleadings and I am not persuaded
that Mr Venter is correct in his submissions.
[5] On the issue of the
delay rule, it is not correct that the views of the applicants were
ignored. They were considered together
with those of the respondents
albeit raised in an interlocutory proceeding. I do not accept the
argument that the court can disregard
a pertinent fact raised in the
interlocutory proceedings and persisted with during the oral
submissions solely on the basis that
it is not in the answering
affidavit. As I understand it, when a court is called upon to
consider the matter, it does so by considering
all submissions
including evidence, defence or facts raised in the interlocutory
proceedings for as long as those facts, defence
or evidence is
relevant to the determination of the issue in dispute. As stated in
the judgment, the issue regarding the inordinate
delay was raised
well in time and there was no prejudice when it was raised once again
in the heads of argument.
[6] Secondly the
submissions by Mr Venter that the 180 days is calculated from the
date the applicants became aware of the decision
is not supported by
case law. See Aurecon SCA, para 16 which was confirmed by the
constitutional court,
[2017] ZACC 5.
[7] With regard to the
interdict, there is in my view and upon reflection, no merit on this
point. The interdict was sought as a
temporary relief pending the
final resolution of part B which was a review of the administrative
decisions made by Bushbuckridge
Local Municipality. In the judgment I
made reference to paragraph 29.1 of the founding affidavit which made
it clear that part
B was solely a review of the decisions made by the
municipality on the "subject property".
[ 8] I now turn to the
last point which is the declaratory relief regarding the alleged
lapsing of the retail licence in terms of
Regulation 24 of the
Regulations made under Petroleum Products Act. A declaratory relief
is contingent upon the existence of a
right. The applicants have
predicated this declaratory relief on the basis that the
administrative decisions were unlawful and
negatively affect their
operations. They failed to make a case to have them reviewed and set
aside and consequently no contingent
right exists for them to get a
declarator.
[9] In the result, the
application for leave to appeal stands to fail and the applicants
should pay the costs.
[10] It is ordered that
1. Application for leave
to appeal is dismissed
2. Applicants are ordered
to pay the costs on a party and party scale B of the High Court
tariffs.
IM
MANGENA
ACTING
JUDGE OF THE HIGH COURT
FOR
THE APPLICANT:
ADV
A VENTER
INSTRUCTED
BY:
IVAN
PAUW AND PARTNERS
FOR
THE 1
ST
RESPONDENT:
MR
RICHARD SPOOR
INSTRUCTED
BY:
RICHARD
SPOOR ATTORNEYS
FOR
THE 2
ND
RESPONDENT:
ADV
B SAVVAS
INSTRUCTED
BY:
MKA
ATTORNEYS
FOR
THE 3
RD
RESPONDENT:
ADV
TS NGWENYA
INSTRUCTED
BY:
PN
MADONSELA ATTORNEYS
DATE
HEARD:
21
May 2026
DATE OF JUDGMENT:
25 May 2026