Pine Glow Investments (Pty) Ltd v The Minister of Energy and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mashile J
• Judgment Date: 10 June 2022
• Court: Mpumalanga Division, Mbombela
• Hearing Date: 10 June 2022
• Docket Number: 3525/2020

Mashile J:

INTRODUCTION:

[1]

This review application first served before this Court on 19 January 2021 as an urgent matter comprising Part A and B. On that day, the parties reached a transitory settlement in terms of which the Third and Fourth Respondents ("Highveld Technopark") and ("NAD Property") respectively agreed to halt construction of the filling station until early February 2021. In Part A of the application, the Applicant ("Pine Glow") sought an order prohibiting Highveld Technopa rk and NAD Property, which will henceforth be referred to as the Respondents, from proceeding and/or commencing with the construction of a filling station alternatively, from continuing with operation of the filling station situated on a site described as Erf 930, Greenvalley, Extension 1 Township, Registration Division K.U, Province of Mpumalanga ("the site").

2022 JDR 1624 p3

Mashile J

[2]

In Part B of the application, Pine Glow sought to urgently review and set aside:

2.1

The decision of the Minister on the Respondents' appeals in terms of section 12A of the Petroleum Products Act, 120 of 1977 ("the PPA"), to refer the applications back to the Second Respondent ("the Controller") for re-evaluation; and

2.2

The decision of the Controller to approve the site and retail license applications of the Respondents in terms of the PPA; and

2.3

Lastly, it also sought an order that, under the exceptional circumstances of this matter, an appeal against the granting of the foregoing prayers will, as provided for in section 18 of the Superior Courts Act, 10 of 2013, not suspend the operation of the order of this Court setting aside the decisions of the First Respondent ("the Minister") and the Controller.

[3]

When the urgent application returned to Court on 2 February 2021, it was struck off the roll for lack of urgency. The parties arranged that Part b be heard during the ordinary course on 3 May 2021. When they came back to Court in May 2021 to argue Part B, Highveld Technopark and NAD Property took a legal point that Pine Glow lacked locus standi. On that day the parties argued the point and judgment was reserved. The locus standi point was ultimately dismissed and the parties argued Part B on 25 October 2021.

[4]

In its initial founding affidavit, Pine Glow sought to review and set aside the decisions of both the Minister and that of the Controller. I note that this is no longer the position in its supplemented founding affidavit. The review grounds now pertain to the decision of the Controller to re-evaluate his decision approving the license. The upshot of the reconsideration of the applications is that the Controller has now granted the licenses as applied for by the Respondents.

2022 JDR 1624 p4

Mashile J

[5]

Where I refer to Respondents in this judgment, it will mean Highveld Technopark and NAD Property otherwise and depending on the context, I will refer to them in their individual names. The Fifth to Ninth Respondents have been joined to this application insofar as they might have interest in case the proposed filling station elects to use one of their petroleum brands. Pine Glow seeks no relief or costs against the Tenth Respondent ("Tokivect") but it is cited as it operates a filling station on a site owned by Pine Glow. Besides, Pine Glow is also the wholesaler from which Tokivect purchases its petroleum products.

FACTUAL MATRIX:

[6]

The factual background of this application is substantially uncontested by either side. In April 2016, the Respondents applied to the Controller for site and retail licences in terms of the PPA for the establishment of a new filling station on the site. Following the application, the Controller granted the licenses on 3 November 2020 and on 12 November 2020, allocated G/2018/04/26/0001 and G/2018/04/26/0002 to the site and retail licenses respectively.

[7]

Pine Glow, as it was entitled in terms of PPA regulations 4(2)(e) and 16(2)(e), objected to the license applications. On 9 November 2018, the Controller found that there was no need for the proposed filling station and that it would be incongruent with the objectives of the licencing system prescribed by PPA, the Controller refused the site and retail licences. In consequence of the Controller's decision, the Respondents noted an appeal to the Minister in terms of section 12A of the PPA against the Controller's decision to refuse the licenses.

[8]

Pine Glow opposed the appeal. On 12 December 2019, Pine Glow received a notification from the Minister dated 10 December 2019 advising the parties that he has upheld the appeal and set aside the decision of the controller and referred the license applications of the Respondents back to the Controller for re-evaluation based on information submitted and other documentation obtained during the appeal process.

2022 JDR 1624 p5

Mashile J

[9]

On 5 February 2020, Pine Glow reacted to the decision of the Minister stating that:

9.1

The Minister is required to decide the appeals and not empowered to refer the applications back to the Controller; and

9.2

The Controller is functus officio.

[10]

Standing the Minister's ground, his office reverted to Pine Glow in an e-mail message of 27 February 2020 recording the intransigent stance of the Minister on the matter. On 26 November 2020, Pine Glow alleges that it learnt for the first time that construction of what appeared to be a filling station had taken root on the site. On 30 November 2020, Pine Glow wrote to the Controller and to the attorneys of the Respondents demanding that the Controller gives direction ending construction or proof that licences had been issued to Highveld Technopark and NAD Property in terms of the PPA.

[11]

On 7 December 2020, the attorneys of the Respondents furnished Pine Glow with letters confirming the issuing of site and retail licences to the Respondents. The attorney further verified that the construction on the site was indeed a filling station. Pine Glow claims that other than the response from the attorneys of the Respondents, it has not heard from the Controller

[12]

This Court has been provided with e-mail message communications that preceded the dispute between Pine Glow and the Respondents suggesting that they had a long established business relationship concerning the site and these petroleum license applications. These exchange of e-mail messages are common cause consequently I do not intend to quote them extensively. While they may not be directly relevant to the outcome of this judgment, they nonetheless establish the motive behind this review application.

2022 JDR 1624 p6

Mashile J

[13]

The Respondents allege that the e-mails indubitably reveal that Pine Glow was actively involved in the planning of the proposed new site and assisted the Respondents with advice and planning. It began on 24 November 2017 when Mr Arnold Le Roux, an employee of Pine Glow, sent an e-mail message to Japie, a director of both Respondents, annexing a draft layout plan of the proposed filling station. On 13 February 2018, one Rina Groves a property manager in the employ of the Applicant addressed an email correspondence to Riaan Kock of a Kock & Associates Inc., which represents the Respondents in this matter and is also the firm responsible for the license applications .

[14]

Groves requests Kock to send her copies of the license applications and to inform her of the progress of the said license applications. On 14 February 2018, Wimpie de Beer, the Senior Manager: Property and Brand Development of Pine Glow, wrote to Kock requesting and emphasizing that Pine Glow needed to peruse and signoff on the final versions of the license application prior to Kock's submission to the Minister. On 14 February 2018, startled by the request, Kock replied and said that he did not appreciate why De Beer wanted to sign off on any documents and copies of the applications when Caltex Mpumalanga North Marketer was not the client in this matter.

[15]

Responding to the above on 15 February 2018, De Beer stated that Kock was correct and confirmed that they were not the client but said that their interests thought were closely aligned...