Fuel Retailers' Association and Another v Minister of Mineral Resources and Energy and Others (2024-123240) [2024] ZAGPPHC 1267 (6 December 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 2024-123240

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 2024-12-06

SIGNATURE

In the matter between:

THE FUEL RETAILERS’ ASSOCIATION

First Applicant

MOSAVAL FUELS (PTY) LTD.

[REG. NO.: 2018/444757/07]

Second Applicant

and

THE MINISTER OF MINERAL RESOURCES AND ENERGY First Respondent

CONTROLLER OF PETROLEUM PRODUCTS

Second Respondent

THE DIRECTOR-GENERAL: DEPARTMENT OF

MINERAL RESOURCES AND ENERGY

Third Respondent

SULNISA GARAGES (PTY) LTD

[REG. NO.: 2012/168775/07]

Fourth Respondent

MAYFIELD PROPRTY INVESTMENTS (PTY) LTD

[REG. NO.: 2015/056371/07]

Fifth Respondent

This judgment was prepared and authored by the Judge whose name is reflected 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 matter on CaseLines. The date for handing down is deemed to be 6 December 2024.

JUDGMENT

POTTERILL J

The parties.

[1] The first applicant is the Fuel Retailers’ Association [the Fuel Retailers], an association of fuel retailers in all provinces of the RSA representing 2 500 members having its own constitution and having its main purpose to “inter alia create and sustain a peaceful and stable working environment in the fuel retailers industry, to protect, secure and to promote the interests of all affiliates.” It asserts it has the capability in law to sue and be sued. The second applicant is Mosaval Fuels (Pty) Ltd, with its principal place of business and its registered address in Cape Town.

[2] The first respondent is the Minister of Mineral Resources and Energy [the Minister]. The second respondent is the Controller of Petroleum Products [the Controller] and the third respondent is the Director-General: Department of Mineral of Resources and Energy [the DG]. The fourth respondent is Sulnisa Garages (Pty) Ltd [Sulnisa] with its principal and registered address in Cape Town. The fifth respondent is Mayfield Property Investments (Pty) Ltd [Mayfield] with its principal and registered address in Cape Town.

[3] The Minister, the Controller and the DG have filed a notice to abide. Sulnisa and Mayfield oppose the application.

The relief sought.

[4] This is an urgent application wherein a nutshell the applicants seek the decision to issue a site and retail licence to Sulnisa and Mayfield to be reviewed and set aside, alternatively set aside. Furthermore, the Controller is to be interdicted from issuing a retail licence to Sulnisa and Mayfield pending finalisation of the Appeal. Sulnisa and Mayfield must be ordered to return the issued site and retail licences to the Controller and the Controller is to cancel their site and retail licences. Sulnisa and Mayfield are to be interdicted from conducting the business of selling petroleum products, or products ordinarily sold by a garage operator with a site and retail licence at the property described as Erf 2[...], situated at 2[...] M[...] Road, Observatory, Cape Town.

The common cause facts.

[5] Sulnisa and Mayfield started with the construction of the site on March 2024. On 9 May 2024 the licences were granted. On 20 May 2024 the applicants wrote to the Controller informing them that they would be appealing the decision to grant the applicants’ licences and that in terms of the judgment of Gensinger and Neave CC and Others v Minister of Mineral Resources and Energy and Another 2024 JDR 1553 (SCA) the appeal suspends the issuing of the licences until the Minister has finalised the appeal. On 21 May

2024 the second applicant lodged the appeal against the granting of the licence. On 10 June 2024 the Controller issued the licences to the respondents. The respondents responded to the appeal on 8 November 2024. The legal services of the Department of Mineral Resources and Energy on 18 October 2024 informed Sulnisa and Mayfield that they may not continue to develop the site or [sell] retail petroleum products from the site pending the finalisation of the appeals.

Points in limine raised by Sulnisa and Mayfield.

Urgency.

[6] Much was made on behalf of Sulnisa and Mayfield that the matter was not urgent. The argument went that the application was issued on the 28th of October 2024 to be enrolled on 12 November 2024. An amended notice of motion re-enrolled the matter for 26 November 2024 affording the respondents to file their opposing affidavits now by 15 November 2024. This shifting of dates already indicated that the matter is not remotely urgent.

[7] Furthermore, if there was any urgency then it was self-created, because the site licence was granted on 10 June 2024, some 5 months ago. The applicants aver that in September 2024 they were informed that the licences were issued. They further aver that they only learnt that the licences were collected on 22 October 2024. Sulnisa and Mayfield did not know of the objection lodged by the second applicant. The applicants also provided no detail of how they were informed the licences were provided. They knew by 30 September 2024 that the site and retail licences had been issued and that the filling station plans to commence streaming by the end of September 2024. There is no explanation why the urgent application was not before Court in October.

[8] On behalf of the applicants it was submitted that the matter is extremely urgent. This is so because on 22 May 2024 the applicants lodged an appeal against the approval of the licences granted on 9 May 2024, despite the objections of 8 August 2024 and 14 August 2024. Despite the Controller being informed by letter of the SCA judgment and an undertaking sought that the site and retail licences would not be issued, no such undertaking was forthcoming.

[9] The interim appeal was lodged by the second applicant and IRM as they operated service stations within the same catchment area and sharing the same traffic. On 16 May 2024 a PAIA application was made. To date no document requested in terms of PAIA has been provided.

[10] On 21 May 2024 a letter was sent to the Minister seeking an urgent intervention and demands in an effort to exhaust all its internal remedies for the site and retail licences not to be issued. Only a few days prior to the founding affidavit being drafted did the applicants hear and have it confirmed by the Controller (22 October 2024) that the licences were issued, despite the pending appeal.

[11] Prior to 22 October 2024 the second applicant wrote a letter to all the respondents demanding an undertaking that no trading will commence until this application is finalised. The undertaking had to be provided before 18 October 2024. No such undertakings were received and the application was launched on 28 October 2024.

Decision on urgency.

[12] An unlawful issuing of a licence by the Controller must be interdicted pending the review and is inherently urgent. This is specially so as there is no provision in the Act or Regulations to set aside or cancel an issued site and retail licence. The applicants’ submission that it will not be afforded substantial redress at a hearing in due course is correct; immediate intervention is necessary to preserve the status quo and prevent further prejudice to all the parties concerned.

[13] The applicants’ timeline in bringing this application did not create its own urgency. They timeously acted upon incidents taking place and attempted to exhaust internal remedies and sought undertakings, yet the respondents forged ahead. The matter is urgent and must be heard.

Lack of jurisdiction.

[14] It is common cause that the site is situated in Cape Town and Sulnisa and Mayfield’s registered addresses are in Cape Town. The Controller, Minister and DG’s principal places of business are located in the jurisdiction of this Court. The licences were granted in this jurisdiction and the appeal is to be heard in this jurisdiction.

[15] On behalf of Sulnisa and Mayfield it was submitted that the matter should have been issued out of Cape Town because the site is there and it would alleviate the burden of this Court.

[16] It could not be seriously argued that this Court lacks jurisdiction, but only that it would have been more convenient to be heard in Cape Town. Section 21(2) of the Superior Courts Act 10 of 2013 clothes this Court with jurisdiction. The Controller, Minister and DG is in the area of this Court’s jurisdiction and

accordingly it also has jurisdiction over any person joined as a party to any cause in relation to which such court has jurisdiction.

[17] This Court has jurisdiction and this point in limine is dismissed.

Locus standi of the applicants.

Locus standi of the Fuel Retailers.

[18] It was submitted that the Fuel Retailers has no pending appeal and thus cannot materially suffer if the licences are granted. Accordingly it does not have a clear right and therefore no locus standi.

[19] On behalf of the Fuel Retailers it was submitted that it is a company which represents the interest of proprietors of filling stations across South Africa. It is represented by the CEO of the company with the second applicant being a member of Fuel Retailers. Although itself has no pending appeal it sets out that it received more and more complaints from member retailers that despite appeals being lodged against decisions to approve site and retail licences, the Controller ignores the appeals and issues site and retail licences that are subject to appeal. This trend has increased over the last couple of months, amounting to a national crisis and it must be addressed. This is baldly denied by Sulnisa and Mayfield. The Controller is startlingly silent hereon as it did not file opposition or an explanatory affidavit.

[20] Furthermore, it was set out that in close proximity of the site of Sulnisa and Mayfield are Total Energies Observatory, Caltex Observatory and Shell Salt River Circle, that are all members of the Fuel Retailers. Instead of all these members launching an application, the Fuel Retailers, as its association, with the authority and power to protect their rights against unlawful interferences is mandated and authorised to seek relief in protection of their rights.

[21] I am satisfied that the Fuel Retailers has standing. It has set out adequate interest in the subject matter of the litigation and has a direct interest on behalf of its members. The interest to be protected is actual and current. It is not denied that contrary to the SCA’s decision the Controller issues licences while appeals are pending. The Fuel Retailers has often been afforded standing in litigation in our Courts.[1]

Does the second applicant have locus standi?

[22] In the answering affidavit no issue was taken with the locus standi of the second applicant. In a supplementary affidavit filed just prior to the hearing the locus standi is now attacked on the basis of new facts that should be permitted in the interests of justice. The fact is that the second

applicant’s right of tenure will be terminated within 60 days.

[23] The second applicant had no opportunity to answer thereto, but in any event it has locus standi, as it stands, before me now. This point in limine is dismissed.

The description of the site.

[24] The applicants described the property as “Erf 2[…], situated at 2[...] M[...] Road, Observatory, Cape Town.” It is common cause that the correct description is: “The Remainder of Erf 2[…], situated at 3[...] M[...] Road, Observatory, Cape Town.”

[25] The argument on behalf of Sulnisa and Mayfield went that the amendment of the notice of motion to the correct address is not for the mere asking as Erf 2[…] does not exist in law as it has been sub-divided. The problem is expanded in that 2[…] and 3[...] M[...] Road are two entirely different properties.

[26] On behalf of the applicants it was argued that it relates to the property of Sulnisa and Mayfield for which the licence was approved.

[27] I am satisfied that although the description is incorrect, it is common cause between the parties that licences were approved for the property of Sulnisa and Mayfied and that the issues relate to that property.

[28] This point in limine is dismissed.

Is the issuing of the licences reviewable?

[29] In the Gensinger-matter the SCA found and ordered inter alia as follows:

“It is declared that the applicants’ appeal in terms of section 12A of the Act, against the decisions of the Controller of Petroleum Products to approve the third and fourth respondents’ applications for site and retail licences and subsequently to issue those licences to them suspends the Controller’s decisions pending the finalisation of such appeal.”

[30] There is no doubt that the approval and the issuing of the licence is a two-step process. The licences could only be issued by the Controller when the successful applicants have fulfilled the conditions imposed by the Controller.

[31] The argument on behalf of Sulnisa and Mayfield was that the applicants should have internally appealed the issuing of licences or brought a judicial review thereof under PAJA.

[32] This argument on the day of hearing was not seriously pursued, I think, because it has no merit. The Controller never had the power to decide to issue the licences pending the appeal. But, in any event, the decision to issue the licences can only be taken after approval was given; the approval must be appealed for the issuing of the licence to follow if so complied with, whatever decision on appeal. On behalf of Sulnisa and Mayfield it was submitted that when one decision follows upon each other, application must be made to set aside all the decisions and not only one. In these circumstances this argument is incorrect. The decision to issue the site and retail licences can only follow after the approval was granted. If there is no approval granted no decision to issue the site and retail licences can follow. In terms of the SCA ruling the decision is unlawful and must be set aside pending appeal.

Prayer 6.

[33] In oral argument counsel for Sulnisa and Mayfield placed much emphasis on the requirement for an interim interdict pertaining to the balance of convenience as sought in prayer 6 of the notice of motion. I was referred to National Treasury and Others v Opposition to Urban Tolling Alliance and Others (OUTA) 2012 (6) SA 223 (CC) and reliance was placed on the reasoning therein that when a court evaluates where balance of convenience exists, a court must be aware that it is restraining statutory power exercised within the exclusive terrain of the executive branch of government. I must accordingly exercise my discretion in terms of section 172 and take into consideration the money expended by Sulnisa and Mayfield and in view thereof not grant prayer 6.

[34] Prayer 6 seeks that pending finalisation of the appeal Sulnisa and Mayfield “are interdicted and restrained from forthwith conducting the business of selling petroleum products, or any other retail products that are ordinarily sold by a garage operator with a site and retail licence” at the property. I need not consider the separation of powers balance simply because I am only confirming what the organ of state had instructed Sulnisa and Mayfield on 18 October 2024, it had instructed them not to continue to develop the site or [sell] retail petroleum products from the site pending finalisation of these appeals. I can also not utilise the remedy in section 172 as this matter is not a constitutional matter, but a review and setting aside of decision to issue licences.

[35] On the one hand counsel for Sulnisa and Mayfield argued that the effect of prayer 6 is final, but on the other hand argued the balance of convenience requirement of an interlocutory interdict. I am satisfied that the applicants have a prima facie right, though open to some doubt. The harm herein is an irremediable breach of the second applicant’s rights, as well as the rights of the retailers that Fuel Retailers are there to establish and maintain.

[36] The balance of convenience was discussed above, but in view of the SCA decision the balance favours the applicants. Pending appeal the licences could not have been issued and Sulnisa and Mayfield cannot trade further.

[37] There is no alternative remedy. The applicants can only on an urgent basis seek to limit their harm.

[38] I am satisfied that for the prayers seeking final relief the applicants have proven that they have a clear right, will suffer irreparable harm and have no alternative remedy.

[39] I am satisfied that in view of the SCA judgment and Sulnisa and Mayfield expressing their commitment to continue to trade to order costs on a punitive scale.

[40] I accordingly make the following order:

[40.1] The application is enrolled as an urgent application and it is authorised and allowed that this application be heard by way of urgency, and the rules, format, time period and service as envisaged in Uniform Rule 6(12) are dispensed with.

[40.2] The second respondent’s decision to “issue” the site and retail licences (“the licences”), pending finalisation of the second applicant’s appeal lodged in terms of section 12A of the PPA (“the appeal”) is set aside.

[40.3] The second respondent is interdicted and restrained from issuing the licences pending finalisation of the appeal.

[40.4] The fourth and fifth respondents are ordered and interdicted to forthwith return the licences to the second respondent.

[40.5] The second respondent is ordered and directed to forthwith cancel the licences.

[40.6] The fourth and fifth respondents are interdicted from conducting any business associated with a fuel station at the Remainder of Erf 2[...], situated at 3[...] M[...] Road, Observatory, Cape Town (“the site”).

[40.7] The fifth respondent is interdicted and restrained from forthwith conducting the business of selling petroleum products, or any other retail products that are ordinarily sold by a garage operator with a retail licence and the fourth respondent is interdicted and restrained from conducting any business, at the property described as Remainder of Erf 2[...], situated at 3[...] M[...] Road, Observatory, Cape Town (“the site”), pending finalisation of the appeal.

[40.8] In the event that the fourth and/or fifth respondents are conducting any business, at the site, then in that event, the fourth and fifth respondents are ordered to immediately cease conducting business, at the site, pending finalisation of the appeal.

[40.9] The fourth and fifth respondents are ordered to pay the costs of this application on the attorney client scale (scale C).

S. POTTERILL

JUDGE OF THE HIGH COURT

CASE NO: 2024-123240

HEARD ON: 27 November 2024

FOR THE APPLICANTS: ADV. W.F. WANNENBURG

INSTRUCTED BY: Tshepo Mofokeng Attorneys

FOR THE 4TH AND 5TH RESPONDENTS: ADV. R. DU PLESSIS SC

INSTRUCTED BY: A Kock & Associates

DATE OF JUDGMENT: 6 December 2024

[1] Fuel Retailers Association of SA (Pty) Ltd and Others v Director-General, Environmental Management, Mpumalanga and Others 2007 (2) SA 163 (SCA)