Move on Up 104 CC and Others v Sagewise 1018 CC t/a Dragon Fuels and Others (14300/15) [2016] ZAKZPHC 3 (5 January 2016)

Move on Up 104 CC and Others v Sagewise 1018 CC t/a Dragon Fuels and Others (14300/15) [2016] ZAKZPHC 3 (5 January 2016)

The court found that the restrictive conditions imposed by the Town Planning Appeal Board at Mr Kader's request remain valid and enforceable until set aside. The applicants demonstrated a prima facie right to enforcement of these conditions, as they were imposed to resolve objections and agreed to by Mr Kader. The respondents' continued operation of both service stations is contrary to these conditions and prejudices the applicants by reducing their market share. The court held that the balance of convenience favours the applicants, as the respondents' delay in seeking removal of the conditions is self-created, and the applicants would suffer irreparable harm during the interim period. No...

Citation
[2016] ZAKZPHC 3
Parties
Applicant: Move on Up 104 CC; Applicant: Kwikcorp 1 CC t/a Leon Motors; Applicant: NCL Moola’s (Pty) Ltd t/a Newcastle Pitstop; Applicant: We-Two Investments CC t/a Auto City; Applicant: LMD Africa Forensics (Pty) Ltd; Respondent: Sagewise 1018 CC t/a Dragon Fuels; Respondent: Kadbro Taxi City CC; Respondent: Seyma Investments (Pty) Ltd; Respondent: Newcastle Local Municipality; Respondent: Controller of Petroleum Products; Respondent: Total South Africa (Pty) Ltd; Respondent: Engen Petroleum Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
5 January 2016
Case Number
14300/15
Procedural Posture
Urgent Application / Interim Interdict Pending Finalisation of Application to Remove Restrictive Conditions
Outcome
Interim interdict granted in favour of the applicants restraining the respondents from operating both service stations simultaneously pending the outcome of the application to remove restrictive conditions.
Judges
Lopes
Legal Topics
Town Planning Scheme, Restrictive Conditions, Interim Interdict, Petroleum Products Act, Municipal Consents, Competition Between Service Stations
Land and Property Civil Procedure Commercial and Corporate Town Planning Scheme Restrictive Conditions Interim Interdict Petroleum Products Act Municipal Consents +1 more

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Parties

Move on Up 104 CC

Applicant

Kwikcorp 1 CC t/a Leon Motors

Applicant

NCL Moola’s (Pty) Ltd t/a Newcastle Pitstop

Applicant

We-Two Investments CC t/a Auto City

Applicant

LMD Africa Forensics (Pty) Ltd

Applicant

Sagewise 1018 CC t/a Dragon Fuels

Respondent

Kadbro Taxi City CC

Respondent

Seyma Investments (Pty) Ltd

Respondent

Newcastle Local Municipality

Respondent

Controller of Petroleum Products

Respondent

Total South Africa (Pty) Ltd

Respondent

Engen Petroleum Limited

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Finalisation of Application to Remove Restrictive Conditions

Legal Issues

  1. 1 Whether the respondents may operate service stations at both 22 Terminus Street and 60 Murchison Street simultaneously contrary to restrictive conditions imposed by the Town Planning Appeal Board.
  2. 2 Whether the restrictive conditions constitute a contract or are enforceable as part of the town planning scheme.
  3. 3 Whether the applicants are entitled to an interim interdict restraining the respondents from operating both service stations pending the outcome of the application to remove the restrictive conditions.

Ratio Decidendi

The court found that the restrictive conditions imposed by the Town Planning Appeal Board at Mr Kader's request remain valid and enforceable until set aside. The applicants demonstrated a prima facie right to enforcement of these conditions, as they were imposed to resolve objections and agreed to by Mr Kader. The respondents' continued operation of both service stations is contrary to these conditions and prejudices the applicants by reducing their market share. The court held that the balance of convenience favours the applicants, as the respondents' delay in seeking removal of the conditions is self-created, and the applicants would suffer irreparable harm during the interim period. No...

Court Disposition

Interim interdict granted in favour of the applicants restraining the respondents from operating both service stations simultaneously pending the outcome of the application to remove restrictive conditions.

Orders

  • Judgment is granted in terms of paragraphs 2, 3, 4 and 5 of the Notice of Motion dated 27 October 2015.
  • The first and second respondents are directed to pay the costs occasioned by the applicants, jointly and severally, the one paying the other to be absolved, including costs consequent upon the employment of two counsel where appropriate.