Highway Junction (Pty) Ltd and Others v Di-Thabeng Truck and Taxi (Pty) Ltd and Others (5821/2021) [2022] ZAFSHC 209 (25 August 2022)
- Citation
- [2022] ZAFSHC 209
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- ZIETSMAN P
- Case number
- 5821/2021
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- ZIETSMAN P
- Case number
- 5821/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, given the differing interpretations of the regulatory and legislative enactments governing land use and planning, there exists a reasonable possibility that another court may reach a different conclusion regarding both the restraint imposed and the refusal of further relief. The matter involves complex statutory interpretation and the application of planning law, which warrants consideration by the Supreme Court of Appeal. Accordingly, leave to appeal was granted to both parties, with the respondents' appeal designated as the main appeal and the applicants' as the cross-appeal.
Court disposition
Leave to appeal against the whole of the judgment is granted to the Supreme Court of Appeal. The First to Fifth Respondents' application is the main appeal and the original Applicants' appeal is the cross-appeal. Costs of the application for leave to appeal will be costs in the appeal.
Orders
- Leave to appeal against the whole of the judgment is granted to the Supreme Court of Appeal.
- The First to Fifth Respondents' application is to be regarded as the main appeal and the original Applicants' appeal as the cross-appeal.
- Costs of the application for leave to appeal will be costs in the appeal.
02
Material facts
Parties
Highway Junction (Pty) Ltd
Applicant Counsel: HJ De Waal SCSwinburne Village Home Owners Association NPC
Applicant Counsel: HJ De Waal SCSwinburne Store CC
Applicant Counsel: HJ De Waal SCDi-Thabeng Truck and Taxi (Pty) Ltd
Respondent Counsel: MM Rip SCDi-Thabeng Logistics (Pty) Ltd
Respondent Counsel: MM Rip SCDi-Thabeng Finance (Pty) Ltd
Respondent Counsel: MM Rip SCDi-Thabeng Fuel Supply (Pty) Ltd
Respondent Counsel: MM Rip SCDi-Thabeng Fuel Management (Pty) Ltd
Respondent Counsel: MM Rip SCMember of the Executive Council, Free State Provincial Department of Economic, Small Business Development, Tourism and Environmental Affairs
RespondentMaluti-a-Phofung Local Municipality
RespondentMinister of Water and Sanitation
RespondentMinister of Mineral Resources and Energy
RespondentController of Petroleum Products
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Order
04
Questions and positions
Legal issues
- 01
Whether leave to appeal should be granted against the order restraining the use of the property for non-agricultural purposes.
- 02
Whether the refusal of further interdictory relief to the applicants warrants leave to appeal.
- 03
Whether the interpretation of regulatory and legislative enactments justifies appellate review.
Party arguments
- Applicant
- The applicants argued that the court erred in refusing further interdictory relief beyond the restraint imposed, contending that the respondents' activities on the property contravened applicable planning legislation and municipal by-laws. They maintained that the regulatory framework required stricter enforcement and that the court should have granted broader relief to prevent ongoing unlawful use.
- Respondent
- The respondents challenged the order restraining their use of the property, asserting that the court misinterpreted the relevant statutes and by-laws. They argued that their activities were permissible under the current zoning and that the court's order was overly restrictive and not supported by the legislative framework. They sought to overturn the restraint and have the order set aside.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a) of the Superior Courts Act 10 of 2013
Leave to appeal should be granted where there is a reasonable possibility that another court may reach a different conclusion.
- 02
Spatial Planning and Land Use Management Act 16 of 2013; Municipal Planning By-law of 2015
Land use may only be changed in accordance with the Spatial Planning and Land Use Management Act and relevant municipal by-laws.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, given the differing interpretations of the regulatory and legislative enactments governing land use and planning, there exists a reasonable possibility that another court may reach a different conclusion regarding both the restraint imposed and the refusal of further relief. The matter involves complex statutory interpretation and the application of planning law, which warrants consideration by the Supreme Court of Appeal. Accordingly, leave to appeal was granted to both parties, with the respondents' appeal designated as the main appeal and the applicants' as the cross-appeal.
Obiter and limits
- The appeal raises important questions regarding the interpretation of planning legislation and municipal by-laws.
- The outcome may have broader implications for land use regulation in the Free State Province.
Court disposition
Leave to appeal against the whole of the judgment is granted to the Supreme Court of Appeal. The First to Fifth Respondents' application is the main appeal and the original Applicants' appeal is the cross-appeal. Costs of the application for leave to appeal will be costs in the appeal.
- Leave to appeal against the whole of the judgment is granted to the Supreme Court of Appeal.
- The First to Fifth Respondents' application is to be regarded as the main appeal and the original Applicants' appeal as the cross-appeal.
- Costs of the application for leave to appeal will be costs in the appeal.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Order
IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: 5821/2021
Reportable:
YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
In the matter between:
HIGHWAY JUNCTION (PTY) LTD First Applicant
SWINBURNE VILLAGE HOME OWNERS
ASSOCIATION NPC Second Applicant
SWINBURNE
STORE CC Third Applicant
and
DI-THABENG TRUCK AND TAXI (PTY) LTD First Respondent
DI-THABENG LOGISTICS (PTY) LTD Second Respondent
DI-THABENG FINANCE (PTY) LTD Third Respondent
DI-THABENG FUEL SUPPLY (PTY) LTD Fourth Respondent
DI-THABENG FUEL MANAGEMENT (PTY) LTD Fifth Respondent
MEMBER OF THE EXECUTIVE COUNCIL,
FREE STATE
PROVINCIAL DEPARTMENT OF ECONOMIC,
SMALL
BUSINESS DEVELOPMENT, TOURISM AND
ENVIRONMENTAL
AFFAIRS Sixth Respondent
MALUTI-A-PHOFUNG LOCAL MUNICIPALITY Seventh Respondent
THE MINISTER OF WATER
AND
SANITATION Eighth Respondent
THE MINISTER OF MINERAL RESOURCES
AND
ENERGY
Ninth Respondent
THE CONTROLLER OF PETROLEUM PRODUCTS Tenth Respondent
CORAM: ZIETSMAN P, AJ
DELIVERED ON: 25 AUGUST 2022
This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time for
hand-down is deemed to be 15:00 on 25 August 2022
[1] In the aforementioned matter, I delivered judgment on 27 July 2022 by issuing an order against the First to Fifth Respondents as follows:
“1. The First to Fifth Respondents are interdicted and/or restrained from using the property, known as Portion [….] of the Farm Franshoek No [….], S[....], Free State Province, for any uses other than agricultural, and the parking of trucks, until:
1.1 the use of the land had been changed in terms of the provisions of the Spatial Planning and Land Use Management Act, 16 of 2013 and/or the Municipal Planning By-law of 2015 read with the Town Planning Scheme 51969.
2. Each party to pay its own costs.”
[2] Both the original Applicants as well as the original First to Fifth Respondents filed applications for leave to appeal:
2.1 The original Applicants against the refusal of further interdictory relief that they sought;
2.2 The First to Fifth Respondents against the order that I did issue as referred to above.
[3] Mindful of the test in applications for leave to appeal, that a reasonable possibility exists that another Court would come to another decision, and mindful of the fact that I have attached various interpretations to regulatory / legislative enactments, I am of the view that I should grant leave to appeal to the Supreme Court of Appeal, in the matter concerned, and that the aforementioned appeal needs the attention of the Supreme Court of Appeal.
I THEREFORE MAKE THE FOLLOWING ORDER:
1. Leave to appeal against the whole of the judgment is granted to the Supreme Court of Appeal;
2. The First to Fifth Respondents’ application is to be regarded as the main appeal and the original Applicants’ appeal as the cross-appeal;
3. Costs of the application for leave to appeal will be costs in the appeal.
P ZIETSMAN, AJ
On behalf of the Applicants: Adv
HJ De Waal SC
Adv JS Rautenbach
Instructed by: Phatshoane
Henney Inc.
35 Markgraaff Street
Bloemfontein
E-mail: law@phinc.co.za
On behalf of the Respondents: Adv
MM Rip SC
Adv L Kotze
Instructed by: Graham
Attorneys
14A Torbet Street
Noordhoek
E-mail:
vanessa@grahamattorneys.co.za
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