Farm Dwellers Inn (Pty) Ltd v Venda Hotel CC and Others (19258/2020) [2020] ZAKZPHC 77 (4 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

REPORTABLE

CASE NO: 19258/2020

In the matter between:

FARM DWELLERS INN (PTY) LTD

APPLICANT

and

VENDA HOTEL CC

FIRST RESPONDENT

NEWCASTLE LOCAL MUNICIPALITY

SECOND RESPONDENT

THE MINISTER OF ENERGY NO.

THIRD RESPONDENT

THE CONTROLLER OF PETROLEUM PRODUCTS

FOURTH RESPONDENT

ORDER

The following order is made:

The application is dismissed with costs, such costs to include the costs of two counsel.

JUDGMENT

­Madondo DJP

Introduction

[1] Pending the institution and finalisation of a judicial review of the approval of the first respondent’s building plan by the second respondent on 24 April 2019, the applicant seeks an interim relief, namely, the immediate cessation of all building works currently underway on Erf 8216 Newcastle Extension 37, Newcastle LC, Registration Division H.S, KwaZulu-Natal, held by Deed of Transfer no. T28817/2016. The applicant grounds its application on that the first respondent had illegally, or through gross negligence, obtained the approval of its building plan.

[2] In its heads of argument the applicant has, without leave of this court, added a further prayer in which it seeks a temporary interdict prohibiting the continuation of the building work, until such time as the first respondent is granted a site licence for the property in terms of s 2A(1) of the Petroleum Products Act,[1] which provides that:

‘A person may not –

. . .

(c) hold or develop a site without there being a site licence for that site . . .’

Parties

[3] The applicant is the Farm Dweller Inn (Pty) Ltd, a company duly incorporated in accordance with the company laws of South Africa, and the registered owner of an immovable property, Erf 8780, Newcastle, held under Deed of Transfer T13394/2019.

[4] The first respondent is Venda Hotels CC, a close corporation and the registered owner of the property, Erf 8216, Newcastle, held under Deed of Transfer T28817/2016.

[5] The second respondent is the Newcastle Local Municipality (respondent municipality) in terms of the Constitution of the Republic of South Africa, 1996 and other Statutes of South Africa, and having its office at 37 Murchison Street, Newcastle, KwaZulu-Natal. The respondent municipality is an organ of state as contemplated in s 239 of the Constitution of the Republic of South Africa, 1996.

[6] The third respondent is the Minister of Energy NO, cited herein in its capacity as the Minister responsible petroleum products in the Republic of South Africa, as envisaged in terms of the Petroleum Products Act, as amended by the Petroleum Products Amendment Act[2] , its offices situated at 275 Anton Lembede Street, 6th Floor, Aqua Sky Towers, Durban, KwaZulu-Natal.

[7] The fourth respondent is cited herein as the controller of Petroleum Products in terms of the Petroleum Products Act, situated at 333 Durban Bay House, 3rd Floor, Durban, KwaZulu-Natal. Third and fourth respondents are merely cited herein as interested parties and no relief is sought against them, other than an order for costs in the event of them opposing the application.

Factual background

[8] The property of the first respondent, Erf 8216, is at the intersection of Allen Street and H J Van Eck, Newcastle, which is diagonally opposite to the applicant’s property, Erf 8780, situated at 52 Aquamarine Road, Newcastle. The first respondent’s property is in accordance with Newcastle Local Municipality Land Use Scheme zoned as a Special Zone 7 which permits its use for various business development, namely among other a service station, shop offices and a shopping centre. The applicant’s property is not zoned as such. However, both the first respondent and applicant applied and obtained approval from the second respondent for the erection of a petrol filling station. However, the applicant has not yet lodged a building plan for the construction of a filling station, with the respondent municipality for approval nor has it approached

the fourth respondent for the issue of a trading licence on petroleum products.

[9] The first respondent purchased its property, in extent of 15.1 hectares, as a vacant site during 2015 for the purpose of developing it into a service station, and it took transfer of it on 29 September 2016. In furtherance of its objective, the first respondent acting in terms of s 4(1) of the National Building Regulations and Building Standard’s Act,[3] lodged its building plan with the respondent Municipality on 28 November 2018 for its consideration and approval.

[10] The first respondent’s building plan was approved on 24 April 2019 subject to, among other conditions, that all construction and workmanship must comply with the National Building Regulations and Building Standards Act. Ungraded timber for construction is not acceptable (no black cross timber to be used).

[11] In preparation for the clearing of the site for construction purposes, the first respondent hired the services of the engineer, Ben de Klerk, for such purpose. Immediately after the commencement of the clearing on 1 May 2019, the applicant’s attorneys, Southeys, lodged a complaint with the first respondent’s attorneys about the intended removal of plants, ie grass, aloe and star flower, from the site. The first respondent then haltered the clearing of the site, it then applied and obtained a permit to destroy such plants from Ezemvelo KZN Wildlife in October 2019, which was to expire in December 2019, on expiration of such permit, first respondent applied and obtained the second one on 31 January 2020, which expired on 30 April 2020. At the time construction had commenced and the building is presently at the roof height.

[12] The first respondent applied for a retail licence to sell petroleum products from the fourth respondent. The applicant, once again, through its attorneys, Southeys, lodged an objection to the granting of such licence to the first respondent. This occurred at the time when the consideration of the application by the fourth respondent was at the final stages. However, the dispute has not been declared as yet.

[13] According to the applicant the respondent municipality on 16 January 2019, found the first respondent’s application of 28 November 2018 for the approval of building plans lacking in that its site description development plan missed a critical information for planning consideration. The applicant avers that the first respondent had failed to supply the second respondent with artistic impressions of the development in order for the respondent municipality to appreciate how the first respondent’s development will blend with surrounding properties.

[14] On 6 November 2019 the respondent municipality served a notice on first respondent informing it that it, the respondent municipality, had commissioned an investigation into the circumstances that gave rise to the respondent municipality’s approval of the building plan, submitted to it by the first respondent. In terms of s 10 of the National Building Regulations the respondent municipality instructed the first respondent to close all construction works on site with immediate effect pending the finalisation of such investigations.

[15] During the end of January 2020, the applicant noticed that the first respondent, despite the objections that the applicant had raised in respect of the first respondent’s petroleum licence, had started to build and erect a filling station on the property.

[16] The applicant’s attorneys of record then brought the factual situation to the knowledge of the second respondent in writing, and required an information in terms of Promotion of Access to Information Act,[4] from the respondent municipality.

[17] On 4 February 2020 the respondent municipality wrote to the first respondent a letter and informed it that it did not comply with the requirements of the National Building Regulations Sans 10400-F. On 5 February 2020 the respondent municipality informed the applicant in writing that the building plan of the first respondent submitted to the respondent municipality for approval on 28 November 2018 was approved on 24 April 2019. However, according to the applicant the respondent municipality indicated that in its view the applicant’s building plan should not have been approved due to critical missteps. The plan was erroneously approved in total disregard of comments from the municipal departments. Such information rendered the decision to

approve the building plan in question premature and unsound from the statutory compliance point of view.

[18] On 12 February 2020 the second respondent municipality notified the first respondent that the investigation respondent municipality conducted with regard to the building plan no 391/2018 revealed that there were matters of significance which required an attention of the developer prior to the approval of the building plan. The respondent municipality expressed concern that the first respondent had, at that time, built up to the wall plate. This was revealed through the site inspection conducted by the officer of the respondent municipality, carried out on 11 February 2020.

[19] In a letter dated 25 February 2020 the applicant’s attorneys advised the respondent municipality that the applicant’s counsel had resolved to institute urgent interdictory proceedings regarding the ongoing construction on Erf 8216. They went on to say that the first respondent had, despite notice to cease all construction and building on Erf 8216, continued to build and construct, and that it had apparently refused to comply with any notice to ceased doing so.

[20] In addition, they stated that the respondent municipality had not responded with an undertaking that it intended to cease the development and to comply with conditions essential to the proposed development on Erf 8216. The applicant’s attorneys concluded by saying that should they not receive an undertaking by close of business on 28 February 2020 their client, the applicant, intended to approach the high court for the granting of an interim interdictory relief.

[21] On 4 March 2020 the first respondent’s attorneys of record addressed a letter to the respondent municipality’s attorneys advising them that the first respondent had instructed them that it had halted construction on site – ie Erf 8216. However, the applicant was adamant that the first respondent was just misleading the respondent municipality. On 9 March 2020 the applicant seeing that the first respondent was still proceeding with the construction of the filling station, took photographs showing that the building activities were still being carried out.

[22] According to the applicant the officials of the third and fourth respondents had during the site inspection on 5 March 2020 orally informed him that the fourth respondent had not yet issued the first respondent with a site licence for the property. The applicant avers that the construction and the continuous construction of the filling station by the first respondent is contrary to section 2A(1)(c) of the Petroleum Products Act, as amended.

[23] The applicant states that while the first respondent continues with the building and construction of the filling station in breach of the Petroleum Products Act, respondent municipality, as the local authority, sits back and does nothing to cease such unlawful activities by the first respondent. In the applicant’s submission the conduct of the first respondent and respondent municipality is irresponsible. The applicant goes on to allege that allowing the first respondent to proceed with the illegal construction of a filling station will create an impression on the community of Newcastle that anybody may unlawfully act with impunity and disregard to law.

[24] The respondent municipality denies that there was something wrong with the approval of the building plan in itself and states that only the compliance with the internal processes was absent. The building control officer did not take into account the comments by various departments of the respondent municipality when he considered the building plan for approval, as he was required by the internal processes to do so.

[25] The respondent municipality also denies that it sits back and watches the first respondent contravening the laws, thereby abetting and assisting the first respondent in its conduct. Both the first respondent and respondent municipality deny that on the day complained of ie 10 March 2020, there was building work being carried out on first respondent’s property (Erf 8216).

[26] The respondent municipality states that as soon as it became aware of its employee’s failure to comply with the internal processes it took an immediate action by issuing a notice of precautionary supervision on 5 February 2020. This was followed by representations by its employee. After considering such representation, the respondent municipality suspended the employee concerned. Thereafter, it issued compliance notices.

[27] The respondent municipality states that the first respondent’s alleged non-compliance with the Petroleum Products Act has nothing to do with the approval of the building plan. The first respondent is adamant that its conduct is lawful and that it is presently awaiting the outcome of its application for the retail licence, which is pending before the fourth respondent.

[28] In its submission the applicant states that the building plan should not have been approved and that the first respondent should not be allowed to continue with the construction on its property in contravention of the provisions of the Petroleum Products Act.

Issues

[29] The main issues raised in this matter are:

(a) Whether the applicant has satisfied the requirements for interim relief;

(b) Whether the first respondent’s undertaking on 4 March 2020 that the construction on site Erf 8216, Newcastle was halted is still valid and enforceable;

(c) Whether the second respondent has adopted a lackadaisical attitude towards the alleged first respondent’s contravention of law;

(d) Whether an interim interdict should be granted on a ground of the first respondent’s contravention of section 2A of the Petroleum Products Act;

(e) Whether the building plans should have been approved;

(f) Whether the applicant’s review is outside the prescribed 180-day period.

Requirements for interim relief

[30] The application in this matter is for the cessation of building works pending the judicial review of the approval of the building plan by the respondent municipality in terms of s 7 of the National Building Regulations and Building Standards Act, for the construction of a filling station on the first respondent’s property. The applicant contemplates bringing an application in this court for an order reviewing and setting aside the approval of such building plans.

[31] In the applicant’s contention such approval was obtained illegally, by fraudulent or corrupt activities, or through gross negligence on the part of the respondent municipality’s employees. The first respondent and the respondent municipality resist the application on the basis that the applicant has no locus standi in that it would not suffer any irreparable harm if its application for interim relief is refused.

[32] Before granting the interim relief sought, this court has to satisfy itself whether or not the applicant has established the requirements for interim relief. The principles established by the decided cases,[5] where an interim interdict is sought and there are conflicts of facts, are as follows:

(a) a prima facie right;

(b) a reasonable apprehension of irreparable and imminent harm if the interim relief is not granted and the ultimate relief is eventually granted;

(c) a balance of convenience favours the granting of the interim relief;

(d) the absence of any other satisfactory remedy.

[33] This court possesses a general and overriding discretion whether to grant or refuse an application for interim relief. In the exercise of such discretion, the court is guided by the facts of the matter and interests sought to be protected. In deciding the matter this court should take into account the following material considerations: the strengths and the weaknesses of the applicant’s rights; the balance of convenience; the nature of the prejudice which may be suffered by the applicant and the availability of other remedies. In addition to the principles mentioned in the above paragraph, and due to the complexity of the matter I deem it appropriate and just to also decide on the following questions; whether the approval is unlawful invalid and having no force and effect, and whether the applicant has locus standi to take it on review and have it set aside. If the answer is in the affirmative, whether the contemplated review is out of time as prescribed by the Promotion of the Administrative Justice Act(PAJA).[6]

Prima facie right

[34] In determining whether a prima facie right has been established, the right need not be shown by a balance of probabilities. If it is prima facie established, though open to some doubt, this is sufficient. The prima facie right is where the applicant has furnished proof which if contradicted and believed at the trial, could establish his right:

‘the use of the phrase “prima facie established though open to some doubt” indicates I think that more is required than merely to look at the allegations of the applicant, but something short of a weighing up of the probabilities of conflicting versions is required’.[7]

[35] In cases where there is a dispute of facts. The proper manner of approach is to take the facts as set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to inherent probabilities, the applicant should on these facts obtain final relief. The facts set up in contradiction by the respondent then fall to be considered. If serious doubt is thrown upon the case of the applicant, he cannot succeed in obtaining temporary relief,[8] for his right, prima facie established, may only be open to ‘some doubt’:

‘[but] if there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the meanwhile, subject of course to the respective prejudice in the grant or refusal of interim relief’.[9]

[36] For the applicant to seek this court’s intervention in this matter, by granting it an interim relief, the applicant must have a right or interest to protect. The applicant must establish such right or interest by showing that the continued contravention of the Petroleum Products Act, by the first respondent coupled with the lackadaisical attitude that the respondent municipality has allegedly adopted towards the unlawful conduct of the first respondent, have the effect of causing damage to its right or interest. The applicant states, that it being the law-abiding citizen following a due process of law, will be deprived of its right. However, it does not state what its right or interest will be by the continued construction or refusal of the interim relief save to say that the situation will create anarchy.

[37] It has been the applicant’s contention that while the approval of the building plan itself cannot affect its rights or interest; the subsequent execution thereof may result in the erection of a building which might affect the rights of the owners of neighbouring properties. However, the applicant could not state how the subsequent execution of the approved building plan will affect the rights of the owners of the neighbouring properties. Instead, it has resorted to a wild speculation that health and safety environment factors were not taken into account when the plan was approved. In terms of regulation

14 of the Regulations regarding Petroleum Products, Site and Retail Licenses,[10] after a site licence is issued, the holder must submit an environmental management plan and proof of financial provision for site rehabilitation. The site licence has not been issued yet and there is nothing to show that the rights or interests of the owners of the neighbouring would in any way be adversely affected by the continued building and construction.

[38] It is the duty of the relevant local authority to enforce the provisions of the National Building Regulations and Building Standards Act and of its own planning scheme and by-laws.[11] Once the plans are approved and the building is under construction, the building control officer is mandated to inspect it in order to determine whether the plans and conditions, under which they were approved, are followed and where there in non-compliance, he or she must report this to the local authority.[12] Whether or not a fire protection plan is required in terms of the National Building Regulations and Building Standard Act, will be the duty of the building control officer to incorporate such communication to the local authority.

[39] In Tavakoli & Another v Bantry Hills (Pty) Ltd,[13] the Supreme Court of Appeal in determining whether a litigant had a locus standi, where it relied on a breach of a provision in a town planning scheme, held that a critical enquiry is to determine whether the zoning provisions relied on were imposed solely for the benefit of a specific class or group of persons or whether they were intended for the benefit of the general public. The applicant in this matter partly bases its locus standi to seek the court’s intervention on the ground that the conduct complained of will affect the interest of the public. When the provision was imposed for the benefit of the general public, in order to determine whether the applicants have locus standi, they must establish that they have suffered harm from the contravention of the provision, beyond that it may be supposed all owners and users in the neighbourhood have suffered harm. The applicant in this matter has not produced any evidence of special

harm that it has suffered or will suffer at the hands of the first respondent.

[40] Where the competition is unlawful and the trader who is injured thereby is entitled to complain, and to ask the protection of the law. The alleged carrying out of the building works does not infringe any right or interest of the applicant. The area in which the first respondent’s property is situation, is specially zoned for various business activities. The applicant does not own any property in the specially zoned area and is not yet a trader, and it cannot therefore be said that the first respondent’s carrying on with the building works on its property damages the applicant in its business in that its rights to trade without wrongful interference is infringed, and in that event it would be entitled to a remedy in law.[14] Since the applicant falls outside the ambit of the persons or class of persons the area in question has been zoned or designated for, it cannot obtain the intervention of this court by granting an interim relief without proof of special damages.[15]

[41] The objective of the respondent local authority to specially zone the area for business activities was obviously to maintain law and order in the property owners, developers, and traders and thereby prevent self-help, with the resultant anarchy. Further, to enable itself to supervise and manage the erection and development of any business entity in the area, within its jurisdiction, for the benefit of property owners, traders and for the members of the general public at large. It is therefore the duty of the respondent local authority to enforce these laws (in terms of the National Building Regulations and Building Standard Act and relevant by-laws).

[42] Breach of these obligation occurs directly when there is a failure to respect the right, or indirectly, when there is a failure to prevent the direct infringement of the right by another or a failure to respect the existing protection of the right by taking measures that diminish the protection. The applicant claims that the respondent municipality has acquiesced in the unlawful conduct of the first respondent. In fact, according to the applicant the respondent municipality has adopted a lackadaisical attitude towards the first respondent’s alleged unlawful conduct and thereby abetting and assisting it to the detriment of the maintenance of law, peace and public order.

[43] Where a statute prohibits the doing of a particular act affecting the public no person has a right of action against another merely because he has done the prohibited act. The applicant is required to bring an application against the respondent municipality to compel it to act against the first respondent before seeking the relief from the first respondent itself.[16] There is no evidence that the applicant has made any attempt to bring an application for a mandamus against the respondent municipality, the custodian of the by-laws, acting upon the respondent municipality to show cause before court why it should not be ordered to cease the unlawful activities of the first respondent. The respondent municipality may seek an enforcement of the provisions in question by obtaining an order in terms of s 21 of the National Building Regulations and the Building Standards Act on the ground that the building is unlawfully erected. However, the applicant has taken it upon itself to enforce these provisions and by-laws on the allegation that the respondent municipality has shirked its duty. Whether or not the respondent municipality abets and assists the first respondent’s contravention of the law can be established by evidence.

[44] The respondent municipality denies that it sits back and watches the first respondent contravening the law. The respondent municipality states that as soon as it became aware of its employee’s failure to comply with its internal processes, it took immediate action by issuing a Notice of Precautionary Suspension. The employee whose conduct was complained of was later suspended for misconduct. The respondent municipality also states that there is no breach of the Town Planning Scheme taking place, which would encourage other rate payers to act unlawfully, if not attended to. Whilst doing its internal investigations the respondent municipality issued the first respondent with a notice to cease building works which it complied with. The respondent municipality also sent its officials to go and do a site inspection.

[45] The applicant has not established the first respondent’s alleged contravention of the law and the stop notices the respondent municipality issued to it. The National Building Regulations and Building Standards Act prohibits landowners from erecting buildings on their land without prior approval by the local authority. The first respondent, having obtained an approval for the building plan, it was in terms of the Act entitled to erect the business building on its property. In terms of s 7(4) of the National Building Regulations and Building Standards Act the first respondent was expected to erect a building within 12 months from the date of the approval of the building plan. The first respondent was not aware that the building control officer had not complied with certain internal processes. Nor did it have a duty to inquire into the validity of the building plan

approval.

[46] When the respondent municipality discovered that there had been non-compliance with internal processes during the consideration of the building plan approval, it issued a stop notice to the first respondent instructing it to cease all building activities on site, pending the finalisation of the investigation into the non-compliance. It also took disciplinary steps against the building control officer. Both the first respondent and respondent municipality are adamant that the first respondent adhered to all notices the respondent municipality had issued to it.

[47] On 4 March 2020 the first respondent ceased all its building activities on its property, and communicated such cessation to the respondent municipality through its attorneys of record. Further, it made an undertaking that it would not continue with the building activates until the finalisation of the matter. According to the respondent municipality the first respondent has not reneged on its undertaking. It goes on to state that there were no building activities going on at the first respondent’s property on 10 March 2020 and on any date thereafter. The applicant’s allegation that building activates occurred on the site on 10 March 2020 is not even borne out by the photographs the applicant has put up as proof to that effect. The applicant has therefore failed to make any case for the conclusion that the first respondent is engaged in any unlawful activities and that it has ignored the stop notices the respondent municipality has issued to it.

[48] The applicant has failed to establish that the first respondent’s alleged violation of the provisions of the National Building Regulations and Building Standards Act together with notices the respondent municipality issued to it has affect its right or interest as an individual and the extent thereof. Further, it could not demonstrate how the human existence of other property owners will be affected by the continued construction on site, save a wild speculation referred to earlier on.

[49] Since, according to the applicant, the first respondent is in contravention of the provisions of the National Building Regulations and Building Standards Act as well as the stop notices issued to it by the respondent municipality, the applicant is of the view that the first respondent acts unlawfully and is committing a crime and that the applicant is therefore duty bound to prevent it from acting so. According to the applicant the respondent municipality is, by its lackadaisical attitude to the situation, abetting and assisting the first respondent’s deliberate flouting of law.

[50] The respondent municipality does not only have a statutory duty, but also a moral duty to uphold the law and to enforce due compliance with its own town planning scheme, the provisions of the National Building Regulations and Building Standards Act and by-laws. The issue of stop notices to the first respondent halting all building activities pending the finalisation of the investigation into the non-compliance and the site inspection coupled with the disciplinary action against the officer concerned, indicated that the respondent municipality has not adopted a lackadaisical attitude to the alleged violation of the law, as the applicant claims. The respondent municipality discovered long after the approval of the building plan that there had been non-compliance with the internal procedures. The respondent municipality disciplined the employee concerned and conducted an internal investigation to ensure that here was no fraud and corruption, and it obtained an undertaking from the first respondent that all building works on its premises had been halted. In my view the respondent municipality conducted itself with proficiency and discharged its administrative duties in line with the National Building Regulations and Building Standards Act and by-laws,

with the required promptness. Therefore, there could be no justification for whittling away the obligation of the first respondent as a public authority to uphold the law.[17] It is for the respondent municipality to initiate proceedings to force the developer and the property owners to comply with the

relevant building regulations and municipal by-laws on building works. The applicant should not be allowed to usurp the powers of the local authority.

[51] According to the respondent municipality the applicant does not act in the public interest but in its own pecuniary interest. The first respondent states that the applicant intends to frustrate the first respondent`s application, activated by business rivalry. The applicant is exploiting the weakness in the approval of the building plan so as to gain an advantage over the first respondent in the competitive rivalry of the filling station. This finds support in the evidence of the first respondent that the trade rivalry between the two dates back to 2015 when the fist respondent purchased the property in question at the auction sale. The applicant unsuccessfully bid against the first respondent. The applicant has also made a great noise about the intended destruction of the flora on site, which caused the first respondent undue delay and unnecessary inconvenience. Subsequent thereto, the applicant raised an objection to the first respondent’s application for a retail licence towards the end of the previous year. However, to date the applicant has not declared a dispute with regard to such an objection. In All The Best Trading CC t/a Parkville Motors & Others v S N Nagar Property Development and Construction CC & Others,[18] the court held that where the applicant’s objections are merely based on trade competition that does not give the applicant a locus standi.

[52] The applicant also alleges that the first respondent’s construction of the filling station on its property is contrary to s 2A(1)(c) of the Petroleum Products Act. According to the applicant the erection of the filling station constitutes development for the purposes of s 2A and in respect of which the first respondent must have a site licence. Both the first respondent and the respondent municipality have not been aware of the dispute relating to the alleged contravention of s 2A(1)(c) and s 2B (1) of the Petroleum Products Act. This has not been an issue until the matter came before court for hearing. Nevertheless, in order to determine whether the applicant has locus standi on this ground I have deemed it appropriate to also consider this point.

[53] However, the question arises, whether a developer is required to obtain a site licence prior to the development on Erf 8216, Newcastle. I do not find anything in the National Building Regulations and Building Standards Act, the Petroleum Products Act and by-laws which contains the requirement that before constructing or developing a site one must have a site licence even if the building plan has been approved by the local authority concerned. In terms of the Petroleum Products Act ‘site’ means ‘premises on land zoned and approved by a competent authority for retailing or prescribed petroleum products’. The ‘site licence’ is in the Petroleum Products Regulations described as a licence to sell petroleum products on the land zoned and approved by a competent authority for the retailing of the prescribed petroleum products.

[54] Section 2A(1)(c) provides that a person may not hold or develop a site without there being a site licence for that site. The persons who must apply for a licence in the case of site licence must be the owner of the property concerned, and in the case of public owned land the applicant must have the written permission of the owner.

[56] Under s 2D, the transitional licensing provisions, the word ‘hold’ means ‘to own or lease land, or to possess an option to purchase or lease land, that has been zoned and approved by appropriate authorities for use as a site’. In the definition section of the Petroleum Products Act the word ‘hold when used in relation to land, means the owning of land for the purpose of establishing a site’.[19] However, the word ‘develop’ is not defined. It is only the ‘process of developing’ is defined under the

transitional licensing provisions as meaning, ‘the construction of, or the completion of the infrastructure necessary to use such land as a site within a period of 12 months from the date of commencement of the Petroleum Products Amendment Act, 2003’.[20] Apparently, the transitional provisions of the Petroleum Products Act do not apply to the first respondents, as it came to own the property in 2016.

[57] Section 2D(4)(a) provides that

‘applicant contemplated in subsection (3) shall, on application, be entitled to be issued with a licence for the operation of the activity concerned if the applicant is in compliance with all national, provincial and local government legal requirements, that are in force immediately prior to the commencement of this Act for the operation of the activity concerned.’

Upon proper construction of this subsection the applicant only becomes entitled to apply for an operation licence after complying with all the national, provincial and local government legal requirements. The same analogy can be drawn in the present case. It would be incongruous to apply for an operating licence without putting a structure in place and for which an applicant is required to comply with the relevant local government legal requirements. In the present case, the applicant has duly complied with the local authority legal requirements, and, is therefore, entitled to apply for an operating licence. In terms of s 2A (4)(b) of the Petroleum Products Act the applicant must be an owner of the property concerned and in the case of a publicly owned land the applicant must have the written permission of the owner. In the present matter it is not in dispute that the applicant is the register owner of the property in question. According to the respondent municipality the first respondent’s request to develop the property into a filling station was approved by it. In my view that could be described as a site licence, and the licence to operate an activity is an operating licence which the applicant requires before operating the activity. This in my opinion can make sense in that way.

[58] If I am wrong, in terms of s 2A(2)(a) if a person engages in an activity in contravention of subsection (1) it is the duty of the controller of Petroleum Products to stop such activity by writing to the person concerned a notice directing such person to cease such activity with immediate effect. As the alleged contravention of s 2A (1) by the first respondent falls within the competence and the jurisdiction of the fourth respondent to instruct the first respondent to cease flouting the law, the applicant is not entitled to do so on behalf of the fourth respondent. There is nothing to show that the applicant has at any stage approached the fourth respondent in this regard and that the fourth respondent has failed to execute its duty. The mere fact that the fourth respondent is only cited herein as a person who may have interest in the outcome of the application and that no relief is sought from it confirms that the fourth respondent has not been apprised of such situation and so as the respondent municipality. The applicant has therefore not made any

case for the granting of the interim interdict sought on the basis of such alleged contravention by the first respondent.

Irreparable Harm

[59] The test whether or not temporary relief is to be granted is the harm which will be done.[21] The applicant in this case has failed to establish that it has any right, interest or legitimate expectation which is materially and adversely affected by the approval of the building plan. Nor could it establish that the subsequent execution of the approval would result in the erection of a building which might affect its right or interest as the owner of the neighbouring property. National Treasury & Others v Opposition to Urban Tolling Alliance & Others,[22] requires a reasonable apprehension of harm or at least a risk of njury to its right or interest, if the interim relief is not granted.

Balance of Convenience

[60] The test for the grant of relief involves a consideration of the prospects of success and the balance of convenience. The stronger the prospects of success, the less the need for such balance to favour the applicant, the weaker the prospects of success the greater the need for the balance of convenience to favour him or her. The requirement of balance of convenience means that the prejudice to the applicant if the interdict is refused, weighted against the prejudice to the respondent if its granted.[23] Where the applicant cannot show a clear right then he or she has to show a right which, though prima facie established, is open to some doubt. In that even the applicant will have to show that the balance of convenience favours him or her. The test of whether or not temporary relief is to be granted is the harm which will be done if not granted.[24]

[61] There is no evidence that the applicant’s property will be adversely affected by the building of a filling station on the first respondent’s property. The applicant’s property is diagonally opposite the first respondent’s property, on the other side of the road. The applicant’s property does not have a zoning for a service station, and it is vacant, no building plans have been approved for it, and nor has a petroleum products licence been applied for. The first respondent states that there are 33 persons in its employment and who will be out of employment should the construction not proceed. The granting of an application will result in the dislocation of the first respondent’s cash flow and profits. Putting its employees on standby during the cessation of the building works, will put the first respondent to enormous expenses. The prejudice to be occasioned by the cessation of the building works to the first respondent will be far greater. Whereas, no damage at all will be caused to the applicant if an application for an interim relief is refused.

Other remedies

[62] The first respondent has already ceased the building works and made an undertaking not to continue with the building activities pending the finalisation of the matter. Over and above this, the respondent municipality has issued notices to the first respondent halting the building works or construction on its property which the first respondent cannot ignore. The respondent municipality is statutorily empowered to enforce the provisions of the National Building Regulations and Building Standards Act and the by-laws. In addition, operating a petrol filling station without a necessary licence is a criminal offend in terms of s 12 of the Petroleum Production Act, attracting, on conviction, a fine of R 1 million, or 10 years’ imprisonment, or both such fine and such imprisonment. The building operations have already been stopped and there is nothing to show that the first respondent has reneged on its undertaking that it will not continue with the building works until the finalisation of the

matter. The presence of all these other remedies militate against the granting of a temporary relief.

Review

[63] The applicant contemplates bringing an application in this court for an order reviewing and setting aside the approval of the first respondent’s building plan for the construction of a filling station on its property, the respondent municipality granted in terms of s 7 of the National Building Regulations and Building Standards Act on 24 April 2019. A local authority has power to approve building plans in terms of s 7 of the National Building Regulations and Building Standards Act if it is satisfied that the plans in question comply with the requirements of the Act and other applicable legislation.

[64] The applicant attacks the validity of the approval of the building plan on the ground that it was granted in violation of the provisions of the National Building Regulations and Building Standards Act. While admitting that before granting the approval the respondent municipality had to satisfy itself that the application for approval complied with the requirements of the National Building Regulations and Building Standards Act and other applicable laws, it denies that there were disqualifying factors at a technical level as envisaged in s 7(1)(b)(ii) of the National Building Regulations and Building Standards Act.

[65] The applicant contends that the approval of the building plan in question was contrary to the provisions of ss 6 and 7 of the National Building Regulations and Building Standards Act, and states that it has, therefore, good grounds for the review and setting aside of that decision. However, the respondent municipality states that the approval of the building plan is not defective for want of compliance with the applicable legislation. It complied with regulating framework, and nor was there any breach of the town planning scheme and by-laws. But, only compliance with internal processes was lacking, in that the building control officer, its employee, failed to obtain comments from internal departments of the respondent municipality before the approval of the building plan. In the respondent’s municipality’s contention, the failure to comply with its internal processes did not have the effect of invalidating the approval of the building plan in question.

[66] It is common cause that the first respondent’s application for approval of its building plan did not receive a proper consideration by the respondent municipality before its approval. As a consequence, it follows that the validity of the building plan in question was somehow tainted. However, it is contentious whether or not the failure to comply with the respondent municipality’s internal processes by the building control officer, its employee, when considering the first respondent’s application for approval of its building plan had the effect of invalidating such approval. The respondent municipality submits that there was nothing untoward in the building plan itself which could affect its validity. To the contrary, the applicant contends that the process followed in considering the building plan was seriously flawed to such an extent that it rendered the approval of the building plan invalid. In the circumstances, the applicant is of the view that it is within its right to bring an application for an order reviewing and setting aside such approval. The respondent municipality submits that it falls within its powers and rights to review its own decision which does not adversely affect any persons.

[67] Nor is there any allegation in this matter that when the respondent municipality considered the applicant’s objections, it did not give proper consideration to the applicant’s rights when the decision was made. It therefore follows that a clear right of review has to be established. However, the review proceedings have not been instituted yet but are merely in contemplation, and it is not yet known when they will be instituted.

[68] The applicant places reliance on the non-compliance with the National Building Regulations and Building Standards Act. In terms of the Act the local authority must approve plans for the erection of the building. In support of the contention that the applicant has a clear right to take the decision to approve the building plan on review, Mr Rall SC has referred me to the case of Walele v City of Cape Town & Others.[25] The actual issue in Walele was whether the city properly approved the building plans submitted by the respondent, in terms of which they intended to erect a four-storey block of flats on their property. The applicant contended that the erection of the four-storey building will devalue his own property which adjoins the respondent’s site. The underlying dispute was between the neighbours, and there was therefore a need to strike the right balance between the land owners right to erect a building of his or her own choice on his or her property, on one hand, and the rights of owners of the neighbouring properties, on the other.

[69] It is not only the landowner’s right of ownership which must be taken into account, but also the rights of owners of neighbouring properties which may be adversely affected by the erection of the building authorised by the approval of the plans in circumstances where they were not afforded a hearing. This helps to strike the right balance between landowners’ entitlement to exercise his or her right of ownership over the property and the right of owners of neighbouring properties.

[70] It follows, therefore that for the applicant to have a right to take the approval in question on review, it must have a substantial interest in the outcome of the consideration of the building plan, Mr Rall has argued on behalf of the applicant that the approval of the building plans in this case was not rationally connected to the information which was before the decision – maker in terms of s 6(2)(f)(ii)(cc) of PAJA.

[71] Walele is distinguishable from the present case, in that the applicant does not make any objection to the approval of the first respondent’s building plan on the grounds that it ought to have been afforded a hearing, or required to make representations or submissions before the taking of a decision to approve the building plan in question. In this matter there was no recommendation of the building control officer or a representation by anybody else considered or even put before the decision maker. The building plan was drawn at the instance of the first respondent which wanted to erect the building on its property and the granting of the approval could not by itself affect the applicant’s rights, interest or legitimate expectation. The doctrine of legitimate expectation applies where a person enjoys a privilege or benefit which it would be unfair to deny that person without giving him or her a hearing. A

legitimate expectant could arise either from a promise made by the decision-maker or from a regular practice which was reasonably

expected to continue.

[72] In Ladychin Investments (Pty) Ltd v South African National Road Agency & Others,[26] the applicant was the owner of the property which would have been adversely affected by the construction of a toll plaza near to its business. It made representations to the first respondent to have the decision to locate the toll plaza in that position altered. The applicant was unsuccessful in its representations. In an application for interim relief pending an application to review the decision to allow for the construction of the toll plaza in the intended position, the applicant alleged that there had been no compliance with the relevant legislation and, as a consequence, no proper consideration was given to the applicant’s rights when the decision was made. The court held that as there was no compliance with the South African National Roads Agency Ltd and National Roads Act[27] in dealing with the applicant’s objections, and that there were reasonable prospects of a review succeeding on this ground. The court further, held that the applicant had established a clear right of review or alternatively, right, open to some doubt (the weighing of the balance of convenience come into place).

[73] Ladychin Investments is also distinguishable from the present case in that the applicant has no right or interest to protect by way of the interim relief sought at all. Though there is nothing to show that the applicant stands to be affected by an administrative decision taken by the respondent municipality, in that it was entitled to be given a hearing before the decision was taken, the decision-maker has a duty to act fairly. However, the required standard for procedural fairness, the facts and circumstances of a particular case determine the content of procedural fairness. In the Walele, the court held that the express precondition for the requirement to act fairly, in terms of the section, is that the administrative action has to materially and adversely affect the rights or legitimate expectation of the aggrieved person.

[74] In the present case the evidence does not establish that there had been a breach of the National Building Regulations and Building Standards Act but the building control officer approved the building plan, submitted by the first respondent, without complying with the respondent municipalities internal procedures or processes. The standard practice with the respondent municipality is that building plans are not to be approved until comments have been received from the traffic section, the fire section, the storm water section, the electricity department, and these applications must include artistic impressions to enable the town planning department to properly assess the building plan. The building control officer’s failure to comply with the internal process is not in itself indicative of any corrupt or fraudulent activity. Nor can corruption and fraud legitimately be inferred therefrom.

[75] The question for decision is whether, considering the comments by the various sections of the respondent municipality, before taking a decision on the building plans, was a necessary precondition for the validity of the consequent acts. If the validity of the consequent acts was dependent on no more than the factual existence of the initial act, the consequent act would have legal effect for so long as the initial act is not set aside by a competent court. It is trite that an administrative action remains effectual until properly set aside.[28] For a public official to ignore irregular administrative action on the basis that it is a nullity amounts to self-help.[29]

[76] An administrator lacks jurisdiction wherever he or she fails to comply with the preconditions for lawfully exercising his or her powers. His or her decision is capable of being set aside by a proper process of law. The approval of the building plan by the building control officer, without complying with internal process relating to the consideration of the comments by various relevant sections of the respondent municipality, means that a jurisdictional fact for the building control officer to make a proper approval of the building plan in question was lacking, and that such lack rendered the approval invalid.

[77] However, the absence of a jurisdictional fact does not automatically make the decision a nullity. Our courts have consistently treated the absence of a jurisdictional fact as a reason to set the administrative action aside, rather than as rendering the action non-existent from the outset.[30] In the present matter, the first respondent did not in any way contribute to the invalidity of the approval of the building plan, but it came as a failure on the part of the respondent municipality to comply with its internal processes. Further, the respondent

municipality is not guilty of non-compliance with the provisions of the relevant statute in assessing the building plan in question. In the circumstances, there is no reasonable prospect of the approval of the building plan in question being declared unlawful invalid and having no force and effect. For the court to set aside the approval in question, as being unlawful invalid and having no force and effect, there must be consequences which had been produced by such administrative action. In the present case, the approval of the building plan was a permission to develop the property concerned in the way set out in the building plan. Nor did any balancing of interests or consideration of representations take place, which could have entitled the applicant to a hearing prior to the decision to approve the building plan, was made. The referral of the matter to the respondent municipality for consideration afresh would according to the Constitutional Court in Kirland Investments,[31] in the circumstances be a fair route to take. The court may only set it aside as a defective administrative action, and remit it to the respondent municipality for consideration afresh.[32] As there is no infringement of any right or competing interests involved in this matter, the applicant has no locus standi at all to take the defective approval of the first respondent’s building plan on review.

[78] The approval in question was a decision taken by the building control officer, being an employee of the respondent municipality, empowered to take it and therefore it remains effectual until properly set aside. It cannot be ignored or withdrawn by administrative fiat.[33] In terms of the right to lawful, reasonable and procedurally fair administration action the respondent municipality is entitled to approach the court or where appropriate, an independent and impartial tribunal or forum for the review of its defective approval of the first respondent’s plan have it set aside.[34] Since the applicant has failed to establish locus standi to take the defective approval on review, it has become unnecessary to decide the question whether or not the contemplated review is out of time, and to consider the other issues raised by the applicant.

Conclusion

[79] The applicant has not proved that the first respondent is engaged in any illegal activity, to which the respondent municipality has adopted a lackadaisical attitude or acquiesced in. The approval of the building plan constitutes a permission to develop the property in question. Such an approval is effectual and valid until it is properly reviewed and set aside. The applicant has not satisfied this court that it has any right, interest or legitimate expectation materially or adversely affected through the continued building or construction that the first respondent carries out on its property. Nor has the applicant demonstrated that the act complained of has caused it some special damage – some peculiar injury beyond that which it may be supposed to sustain in common with the rest of the members of the public. Instead, the first respondent stands to suffer irreparable damage through a delay in the construction of the filling station or possibly demolition of the structure, if the circumstances so demand.

[80] Even if, the applicant were to suffer any infringement to its right, interest or legitimate expectation, there are so many other remedies available to keep the conduct of the first respondent in check. In terms of the provisions of the National Building Regulations and Building Standards Act, the Petroleum Products Act, Town Planning Scheme and the by-laws, the first respondent has to comply with all the conditions and requirements set by the respondent municipality and the controller of Petroleum Products (fourth respondent) before it can start operating the filling station. In terms of s 14 of the National Building Regulations and Building Standards Act occupation of a completed building without a certificate of occupancy is a criminal offence, and so is operating an entity without the required operating licence under s 2A (2) of the Petroleum Products Act. The fourth respondent is waited to make a ruling on the objections the applicant raised with it in respect of the first respondent’s application for a retail licence for a filling station.

[81] For a review court to set aside the approval complained of there must be consequences which have been produced by such administrative action. In this case there was no balancing of interests or consideration of representations which could entitle the applicant to take the approval on review. In the circumstances, I am not satisfied that the applicant has made a compelling case for the granting of the temporary relief sought.

Costs

[82] It is a normal consequence that costs follow the results but granting costs for two counsel depends on the complexity of the matter in question. From the look of things one may regard this case as simple only but to find that going into the finer details of it, it turns out to be a complex case which its facts and circumstances make it distinguishable from various decided authorities. It is for this reason I have deemed it appropriate fair and just to award costs for two counsel

Order

[83] In the result, I make the following order:

MADONDO DJP

Date reserved:

29 May 2020

Date delivered:

4 August 2020

Counsel for applicant:

Adv Rall SC

Instructed by:

Southey Inc. Attorneys

Ref: Z Scholtz/MAT 5199/SB

034-3151241

Email: sarah@southeys.co.za

0783553776

Counsel for 1st respondent: Adv Dickson SC

Instructed by:

Afzal Akoo & Partners

Ref: A A/V90

033 -3947274

Email: Akooinc@mweb.co.za

Counsel for 2nd respondent: Adv Nxusani SC/ Adv Pillay

Instructed by:

Brett Purdon Attorneys

Ref:

031-2014100

rama@purdon.co.za; emily@purdon.co.za

[1] Petroleum Products Act 120 of 1977, as amended.

[2] Petroleum Products Amendment Act 58 of 2003.

[3] National Building Regulations and Building Standards Act 103 of 1977, as amended.

[4] Promotion of Access to Information Act 2 of 2002, as amended.

[5] See Setlogelo v Setlogelo 1914 AD 221, 227; Webster v Mitchell 1948 (1) SA 1186 (W) at 1189ffg; Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (1) SA 382 (D) at 383A-C; National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012 (6) SA 223 (CC) paras 41, 48; Camps Bay Residents and Ratepayers Association v Augoustides 2009 (6) 190 (WCC) para 9.

[6] Promotion of Administrative Justice Act 3 of 2000, as amended.

[7] See Webster v Mitchell at 1189.

[8] See Fourie v Uys 1957 (2) SA 125 (C) at 127-128D

[9] Webster v Mitchell at 1189.

[10] Regulations regarding Petroleum Products, Site and Retail Licenses GN R286, GG 28665, 27 March 2006, in terms of the Petroleum Products Act.

[12] Walele v City of Cape Town & Other 2008 (6) SA 129 (CC).

[13] Tavakoli & another v Bantry Hills (Pty) Ltd 2019 (3) SA 163 (SCA) para 13.

[14] Patz v Greene & Co 1907 TS 427.

[15] See Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718.

[16] See Kruger & Another v Rayner & Others [2020] 2 All SA 138 (KZP).

[17] See United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1997 (4) SA 343 (T) at 348I-J.

[18] All The Best Trading CC t/a Parkville Motors & Others v S N Nagar Property Development and Construction CC & Others 2005 (3) SA 396 (T) at 399H-401A.

[19] Section 1 of the Petroleum Products Act 120 of 1977.

[20] Section 2D (1) of the Petroleum Products Act 120 of 1977.

[21] Webster v Mitchell 1984 (1) SA 1186 (W) at 1190.

[22] 2012 (6) SA 223 (CC) paras 41, and 53 – 54,

[23] Ladychin Investments (Pty) Ltd v South African National Road Agency Ltd & Others 2001 (3) SA 344 (N) see the headnote at 345.

[24] Ladychin Investments at 353D – 354D.

[25] Walele v City of Cape Town & Others 2008 (6) SA 129 (CC).

[26] Ladychin Investments (Pty) Ltd v South African National Road Agency Ltd & Others 2001 (3) SA 344 (N).

[27] South African National Roads Agency Ltd and National Roads 7 of 1998.

[28] Oudekraal Estate (Pty) Ltd v City of Cape Town & Others 2004 (6) SA 222 (SCA) paras 26, 37 – 38; Walele v City of Cape Town & Others [2008] ZACC 11; 2008 (6) SA 129 (CC) para 55; MEC for Health, Eastern Cape & Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC).

[29] Kirland Investments para 103.

[30] See Walele para 72; Oudekraal Estate para 37.

[31] See Oudekraal Estate paras 29 – 38.

[32] Walele para 75.

[33] Kirland Investments para 37, 64 and 105 – 106.

[34] Section 33 of the Constitution of the Republic of South Africa, 1996; Kirland Investments paras 64, 91-92.