Pine Glow Investments (Pty) Ltd v Minister of Energy and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Roelofse AJ |
| Judgment Date | 24 August 2023 |
| Citation | 2023 JDR 3192 (MN) |
| Hearing Date | 12 May 2023 |
| Docket Number | A58/22 |
| Court | Mpumalanga Division (Main Seat) |
Roelofse AJ:
INTRODUCTION
The true adversaries in this dispute are the appellant (hereinafter referred to as “Pine Glow”) who was the applicant in the court a quo and the third and fourth respondents (hereinafter referred to as “Erf 6” and “NAD” respectively). [1] I shall refer to the court a quo (Mashile J sitting) as “the court” save for in the headings in this judgment in order to avoid confusion between this court and the court a quo.
The initial dispute concerned decisions of the Minister of Energy (the Minister) and the Controller of Petroleum Products (the Controller). In the court and in this appeal the dispute now only involves the Controller. [2]
The resolution of the dispute lies within the realm of the Petroleum Products Act 120 of 1997 (“the Act”) and the Promotion of Administrative Justice Act 3 of
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Roelofse AJ
2000 (PAJA).
Pine Glow is the site licence holder for the Caltex Acornhoek Mall Filling Station and a fuel wholesaler to, inter alia, other filling stations in the Acornhoek area.
Erf 6 applied to the Controller for a retail licence and was granted same by the Controller after a successful appeal to the Minister against an initial refusal by the Controller. The same course followed in respect of NAD in respect of its site licence. The end result therefore is that Erf 6 holds a retail licence in respect of Erf 930 Extension 1 Township in Acornhoek (the site) and NAD holds the site licence.
Pine Glow, upon learning that construction of a filling station on the site had commenced, approached the court for relief upon motion. Firstly, Pine Glow applied for urgent relief interdicting the construction of the filling station. Secondly, for an order reviewing and setting aside the Minister’s decision to uphold Erf 6 and NAD’s appeal (which challenge was abandoned) and against the Controller’s decision to grant the site- and retail licences subsequent to Erf 6 and NAD’s appeal to the Minister of the Controller’s decision to initially refuse the licence applications.
The urgent application was struck from the roll. The court dismissed the review application. It is against this judgment and order the appeal lies with leave of the court.
Proceedings in the court a quo
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Relevant common cause facts
The Erf 6 applied to the Controller to be issued a retail licence in terms of the Act. NAD applied to be issued with a site licence by the Controller in terms of the Act. Both these applications pertain to the site. These licences are referred to hereinafter to collectively as “the licences”.
Pine Glow objected against the granting of the licences and on 9 November 2018, the Controller refused both licence applications.
Erf 6 and NAD lodged an appeal against the refusal of the licences in terms of Section 12A of the Act to the Minister. Pine Glow opposed the appeal.
The outcome of Erf 6 and NAD’s appeal to the Minister was communicated by the Minister on 10 December 2019 in a letter to Erf 6 and NAD’s attorneys. The letter reads:
I, the Minister of Mineral Resources and Energy, in terms of the provisions of Section 12A of the Petroleum Products Act, 1977 (Act No. 120 0f 1977) (as amended) (hereinafter referred to as “the Act”, considered the appeal against the decision of the Controller of Petroleum Products (hereinafter referred to as “the controller”) to refuse to grant your clients’ site and retail licences.
After careful consideration of all the facts and arguments presented before me, I hereby set aside the decision of the Controller to refuse the site and retail licence applications.
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However, I am referring the site and retail licences back to the Controller for re-evaluation taking into consideration the information submitted and other documentation obtained during the appeal process.’
On 10 December 2019, the Minister also wrote to the Controller as follows:
Find attached hereto, the outcome of the appellant’s appeal against your decision to refuse the site and retail licence applications.
Kindly attend to re-evaluate the appellants licence applications within sixty (60) calendar days from date of receipt hereof taking into account the new information submitted in the appeal. This time period should be sufficient to enable the office of the Controller to conduct new site visit, which requires to be conducted.
In the appeal, it was of specific concern that petroleum volumes obtained from Total South Africa (Pty) Ltd in respect of sites located in Witbank (338 km from the proposed site) and Umhlanga Rocks (793 km from the proposed site) were found in the Controller’s file. The appellants have quite right [sic] raised the suspect as being of specific consequence to the integrity of the initial evaluation.
Additionally, there are numerous expert reports that have been provided that the Appellants are adamant were not considered by the Controller. It is not apparent from the Controller’s working sheets that these reports were sufficiently considered. The Appellants have submitted a further updated report during the appeal process. All of these reports must be properly considered in the re-valuation process.
Accordingly, this, and other aspects of raised in the appeal, have necessitated that this set of licence applications be re-evaluated.’
On 5 February 2020, Pine Glow recorded that the Minister’s decision is unlawful because the Minister is required to decide the appeals and not empowered
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to refer the applications back to the Controller and furthermore recorded that the Controller was functus officio. The Minister contended that his decision was competent.
On 26 November 2028 it came to Pine Glow’s knowledge that construction activities had commenced on the site. Pine Glow was notified on 7 December 2020 by Erf 6 and NAD’s attorneys that the licences were issued by the Controller.
It is against this background that Pine Glow approached the court for relief as set out above. The court dismissed the review application on 10 June 2022. It is against this decision that this appeal lies.
Pine Glow’s case
Pine Glow relies on the provisions of the Act and PAJA for the review of the Controller’s decision to award the licences.
As grounds for review of the Controller’s decision to award the licences, Pine Glow (having abandoned the challenge to the Minister’s decision to direct the Controller to re-evaluate the applications), asserted as follows: the Controller is not authorised by section 12A of the Act or any other provision in the Act to re-evaluate applications previously finally decided by him; the Controller’s decision to re-evaluate the applications in question and revisit and reverse his final refusal was influenced by an error of law, and the Controller’s decision to re-evaluate and approve the applications in question was procedurally unfair.
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Pine Glow, in its “replying declaration”, refined its stance in the application when it set out as follows: [3]
This application turns on three crisp legal issues:
Was the Controller of Petroleum Products (“the Controller”) functus officio when he re-evaluated the licence applications of the respondents’ licence applications in terms of the Petroleum Products Act 120 of 1977 (“the PPA”)?
5.1.1
The applicant respectfully submits that he was and that his decision on re-valuation, consequently, stands to be reviewed and set aside;
5.1.2
the applicant further respectfully submits that if this honorable Court found the controller to have been functus officio, that would be the end of the matter.
If, however, the court were [sic] to hold that the controller was not functus officio, which is denied, two further questions arise:
5.2.1
Did the Controller conduct the re-evaluation process in a procedurally the fair manner in compliance with the mandatory prescripts of PAJA and the audi alteram partem rule? The applicant submit that he self-evidently did not.
5.2.2
Was the controller biased in the re-evaluation process? The applicant submits that the preferential treatment the Controller afforded the despondent shows unequivocally that he was.
Whether the respondents licence applications have any merit, is irrelevant to the questions this honourable court is seized with deciding. . . . . . . .’
Erf 6 and NAD’s case
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Erf 6 and NAD contended that: Section 2B of the Act provides for the licensing in the sense that the Controller must issue licences in accordance with the provisions of the Act; Section 2E(3) of the Act deals with the system for the allocation of licences. Applications for site and retail licences are further regulated and provided for under the Petroleum Products Site and Retail Licence Regulations (the Regulations) [4] ; any decision by the controller to issue a licence, is an administrative decision that falls under the Ambit of PAJA; the appeal procedure provided for in the Act is designed to give an internal remedy to any person aggrieved by the decision taken by the Controller; the Minister’s decision to set aside the controller’s original decision constitutes an administrative decision; the Controller’s original decision to refuse the licences no longer exists; the Minister’s decision to remit the matter to the Controller to consider the applications afresh with all the additional information obtained in the appeal process constitutes a further administrative decision; and, the Controller took a new decision based on new facts and new information, which was not before the Controller at the time the Controller took its original decision...
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