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Thomas v Head of the Department of Agriculture Conservation Environment & Tourism North West Province and Others; M J Thomas t/a Elandskraal Garage v Gouveia and Others (27858/2006, 36972/2006) [2007] ZAGPHC 242; [2008] 1 All SA 392 (T) (24 October 2007)

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-AND-

CASE No.: 36972/2006

FOR APPLICANT: ADV R DU PLESSIS SC & Adv C RIP

FOR 1ST, 2ND & 3RD RESPONDENTS: Adv NATHAN SEGAL

In the matter of:

MJ THOMAS

T/A ELANDSKRAAL GARAGE APPLICANT

-and-

JA DE GOUVEIA 1ST RESPONDENT

EURONOOI PETROL STATION CC 2ND RESPONDENT

EURONOOI PROPERTIES CC 3RD RESPONDENT

TOTAL SOUTH AFRICA (PTY) LTD 4TH RESPONDENT

HEAD OF THE DEPARTMENT OF AGRICULTURE,

CONSERVATION, ENVIRONMENT & TOURISM 5TH RESPONDENT

MEC FOR THE DEPARTMENT OF AGRICULTURE,

CONSERVATION, ENVIRONMENT & TOURISM 6TH RESPONDENT

FUEL RETAILERS ASSOCIATION OF

SOUTHERN AFRICA 7TH RESPONDENT

THE PREMIER OF THE NORTH WEST PROVINCE 8TH RESPONDENT

THE MEC OF THE MINERALS AND ENERGY

DEPARTMENT, NORTH WEST PROVINCE 9TH RESPONDENT

THE MINISTER OF THE MINERALS AND ENERGY

DEPARTMENT, NATIONAL GOVERNMENT 10TH RESPONDENT

THE MINISTER OF ENVIRONMENTAL AFFAIRS

AND TOURISM, NATIONAL GOVERNMENT 11TH RESPONDENT

JUDGMENT

VISSER, AJ:

* THE APPLICATIONS:

1. There are two interrelated applications before me, namely an application under case number 27858/2006 (the “first application”) and an application under case number 36972/2006 (the “second application”).

2. The first application relates to environmental issues and alleged contraventions of the Environment Conservation Act, 73 of 1989 and associated legislation, while the second application deals with the Petroleum Products Act, 120 of 1977 and associated legislation.

3. Most of the facts required to be determined in the first application are also relevant to the determination of the second application, and vice versa.

* THE PARTIES:

4. Mr de Gouveia is cited as being the only member of Euronooi Petrol Station Close Corporation, and being the only, or one of two, members of Euronooi Properties Close Corporation.

5. In each of the two applications, Mr du Plessis SC, assisted by Mr Rip, appeared for the applicant, MJ Thomas, trading as Elandskraal Garage, and Mr Segal appeared for Mr De Gouveia, Euronooi Petrol Station and Euronooi Properties. In order to avoid confusion, I shall refer to these three respondents by name, and collectively as “the first three respondents” in the second application and to Mr De Gouveia and Euronooi Properties as “the third and the fourth respondents” in the first application. The other respondents in both applications indicated that they will abide by the decision of the Court. I shall refer to the applicant in both applications as “the applicant”.

6. It is necessary to deal immediately with the interest, citation and joinder of the various other respondents. It is relevant to mention that it was not disputed by or on behalf of any of the respondents in either application that the provincial authority was the authorized entity in respect of the administration of the Environment Conservation Act, in respect of the activities in question. However, I nevertheless considered it to be my duty to investigate the question lest orders were made against incorrect respondents, or there should be a non-joinder. In particular, I was concerned whether the National Minister, as head of the National Department of Agriculture Conservation Environment and Tourism, (“the National Department”) ought not to have been joined as a respondent in the first application. This concern arose after the matter had been argued in Court, judgment was reserved and I was in the process of studying the papers, the heads of argument of counsel and my notes, writing my judgment. As a result, I addressed a written request to both counsel to make submissions if they so wished, in respect of the issue. I also could not find any note in which the question of the costs of two counsel for the applicant was addressed. There was a last aspect which concerned me. That concerned the fact that Mr Du Plessis referred in his written heads of argument to the “fifth respondent” in the first application. It appeared to me that such reference should rather have been to the “second respondent”. I consequently included these issues as well in my written request to counsel. Having received written replies by counsel to my requests, I am now able to deal with the issue of possible non-joinder.

7. The Head of the Department of Agriculture Conservation Environment and Tourism, Northwest Province was cited as the first respondent and the MEC of that Department as the second respondent in the first application and as fifth and sixth respondents respectively in the second application. I shall refer to these two respondents collectively as “the Provincial Department”. The following is relevant to this Department:

7.1. It appears from the papers in the two applications that a “Record of Decision” which is relevant to the present proceedings and to which I shall refer later, was amended by the Provincial Department. A directive to cease further construction and building operations was given in this communication. Two further directives, dated 11 May 2006 and 15 May 2006, were issued by the office of the MEC of the Provincial Department.mhtml:mid://00000005/

7.2. If regard is had to the regulations regarding the identification of activities which may have a substantial detrimental effect on the environment, to which I shall also refer more fully later, it appears that the relevant delegated authority is defined as “The Minister, Provincial Authority or Local Authority contemplated in Regulation 4(2), 4(3) or 4(4) as the case may be.” Regulation 4(2) provides that an application in terms of the Environment Conservation Act must be submitted to the relevant provincial authority for consideration, except if it falls under sections 4(3) and 4(4). In this matter the application was submitted to the provincial authority. As was pointed out above, the provincial authority gave the Record of Decision. It also dealt with an appeal in respect of the Record of Decision in terms of Regulation 11 of R1183. It is to be observed that the National Minister was not involved in these proceedings at all.mhtml:mid://00000005/

7.3. Mr Du Plessis submitted that for these reasons alone, it was unnecessary for the National Minister to be joined in the first application, because the relief there sought was only against the provincial authorities. The National Department therefore had, and still has, no interest in the relief sought in the first application.

7.4. The Minister of Environmental Affairs and Tourism, National Government, was cited as the eleventh respondent in the second application. Section 22 of the Environment Conservation Act refers to the Minister, or a competent authority, or a local authority, or an officer with competent authority, which shall be designated by the Minister by notice in the Gazette. Section 21(3)(c) of the Act provides that the Minister may identify an activity after consultation with the competent authority of the province concerned.

7.5. The regulations which make provision for the identification of the activities and procedures in respect thereof, namely Regulations in Government Notice R1182 and Government Notice R1183 refer to “competent authority” and “relevant authority” . The “relevant authority” is the authority defined in Regulation 1 of Government Notice R1183. The “competent authority” in terms of the definitions in the Environment Conservation Act means the competent authority to whom the administration of the Act, under sections 2, 3, 5 and 8 of the Constitution, had been assigned in a particular province. It was submitted by Mr Du Plessis that it was for this reason that the National Minister was not cited in the first application. It was further submitted by counsel that the National Minister, or his department, need not have been cited in any of the applications. Counsel submitted that the National Minister was cited in the second application simply because of the possible interest he may have had in respect of the matter. I have carefully considered the situation set out above and Mr Du Plessis’ arguments, and I conclude that his arguments are correct and should be upheld.

8. In the second application a ninth respondent, namely the “MEC of Minerals and Energy Department, Northwest Province” was cited. There is no such entity in existence. It was agreed at the hearing that, rather than striking out the references to this non-existing respondent wherever it appears on the papers in the second application, and thereby possibly creating confusion, those references shall be left as is.

9. For the sake of clarity, because of the different descriptions in the two applications to the same respondents, I shall refer to those respondents by name, unless they are referred to collectively, in which I event I shall refer to them as “the respondents”. Because of the long description of the Department of Agriculture, Conservation Environment and Tourism, Northwest Province, I shall, as indicated above, refer to that respondent as “the Provincial Department” and to the Head and the MEC of that Department by the same reference.

* AMENDMENT:

10. At the inception of the hearing, an amendment to the notice of motion in the second application was applied for by Mr Du Plessis. I shall deal with the amended notice of motion when I deal with the second application.

11. In effect the amendment entailed an abandonment of some of the relief sought previously. Mr Segal objected to the amendment, arguing that the respondents for whom he appeared are prejudiced thereby. He could, however, at my request to do so, not advance any grounds for the alleged prejudice. In a brief ex tempore judgment, I concluded that the amendment should be granted and I so ordered.

12. It needs to be stated in passing, that by the end of Mr Du Plessis’ argument, the amended notice of motion was further diluted by virtue thereof that prayer 2 was not proceeded with, and that prayer 3 (subject to the proviso that there is no ninth respondent) was only requested in the event of me not allowing prayer 1.

* APPLICATION FOR POSTPONEMENT:

13. Having granted the application for amendment, Mr Segal requested a postponement of the second application, alleging that there is a need for considering the implications of the amendment which I had granted. I invited Mr Segal to inform me why he would be unable to argue on the amended notice of motion, as it did away with previously existing issues and did not add any new issues. Upon reconsideration, Mr Segal informed me that he would be able to present his arguments under the regime of the amended notice of motion, but he nevertheless did not withdraw his application for a postponement. I consequently refused the application for postponement.

* THE FIRST APPLICATION:

14. On 24 August 2006, the applicant issued an application out of this Court in which the following relief was prayed for in the notice of motion:

“1. That an interim interdict be granted against the Third and Fourth Respondents whereby:

1.1 Third and Fourth Respondents are prohibited from:

1.1.1 Continuing with the construction of the petrol filling station on the property situated at corner of Wilkenson and Condro Avenue, Mooinooi, Northwest Province;

1.1.2 Taking any further steps to construct a petrol filling station on the property situated at corner of Wilkenson and Condro Avenue, Mooinooi, Northwest Province;

1.1.3 Arranging for, accepting delivery of and/or storage of fuel (petrol, diesel, paraffin and the like) at the aforesaid property or do any [sic] or conduct business, including, but not limited to, the sale of fuel as set out hereinbefore, which may contravene the provisions of the Environment Conservation Act, 1989 (Act 73 of 1989) and/or the National Environmental Management Act, 1998 (Act 107 of 1998).

2. The interdict is granted pending:

2.1 the finalisation of the Appeal in terms of Section 35 of the ECA in respect of the proposed filling station presently serving before the MEC;

2.2 the finalisation of the Department’s investigation into the actions pursuant to the Third and/or Fourth Respondent’s non-compliance with the mandatory conditions of the Record of Decision issued herein and particularly condition 7.2.8 thereof; and/or

2.3 the upliftment or setting aside of the cease and desist directives issued to the Third and/or Fourth Respondents in respect of the construction of the filling station in question.

2.3 That the Third and Fourth Respondents be ordered to pay the costs of this Application and in the event of any Respondents opposing the Application that such Respondents be ordered to pay the costs jointly and severally with the Third and Fourth Respondents, the one paying, the other to be absolved.

4. Further and/or alternative relief.”

* STATUTORY PROVISIONS:

15. Whenever an applicant wishes to conduct an activity which would probably have a detrimental environmental effect, there are statutory and regulatory provisions which are to be complied with.

16. The Environment Conservation Act, 1989, provides in Section 21:

“Identification of activities which will probably have detrimental effect on environment

(1) The Minister may by notice in the Gazette identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.

(2) Activities which are identified in terms of subsection (1) may include any activity in any of the following categories, but are not limited thereto:

(a) land use and transformation;

(b) water use and disposal;

(c) resource removal, including natural living resources;

(d) resource renewal;

(e) agricultural processes;

(f) industrial processes;

(g) transportation;

(h) energy generation and distribution;

(i) waste and sewage disposal;

(j) chemical treatment;

(k) recreation.

(3) The Minister identifies an activity in terms of subsection (1) after consultation with_

(a) the Minister of each department of State responsible for the execution, approval or control of such activity;

(b) the Minister of State Expenditure; and

(c) the competent authority of the province concerned.”

17. Section 22 of the Environment Conservation Act provides for the prohibition of undertaking of identified activities in the following terms:

“(1) No person shall undertake an activity identified in terms of section 21(1) or cause such an activity to be undertaken except by virtue of a written authorization issued by the Minister or by a competent authority or a local authority or an officer, which competent authority, local authority or officer shall be designated by the Minister by notice in the Gazette.

(2) The authorization referred to in subsection (1) shall only be issued after consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environment, which shall be compiled and submitted by such persons and in such manner as may be prescribed.

(3) The Minister or the competent authority, or a local authority or officer referred to in subsection (1), may at his or its discretion refuse or grant the authorization for the proposed activity or an alternative proposed activity on such conditions, if any, as he or it may deem necessary.

(4) If a condition imposed in terms of subsection (3) is not being complied with, the Minister, any competent authority or any local authority or officer may withdraw the authorization in respect of which such condition was imposed, after at least 30 days' written notice was given to the person concerned.”

18. Sections 21 and 22 have been repealed by section 50(2) of the National Environmental Management Act 107 of 1998, which subsection provides:

“(2) Sections 21, 22 and 26 of the Environment Conservation Act, 1989 (Act 73 of 1989) and the notices and regulations issued pursuant to sections 21 and 22 and in force on the commencement date of this Act are repealed with effect from a date to be published by the Minister in the Gazette, which date may not be earlier than the date on which regulations or notices made or issued under section 24 of this Act are promulgated and the Minister is satisfied that the regulations and notices under sections 21 and 22 have become redundant.

(3) Any application made in terms of section 21, 22 or 26 of the Environment Conservation Act, 1989 (Act 73 of 1989), that has been submitted but not finalised when those sections are repealed, must be finalised as if those sections had not been repealed.”

19. It was common cause that subsection 50(2) applied to the applications. Consequently, sections 21, 22 or 26 of the Environment Conservation Act apply by virtue thereof that they were in force at the time when the cause of action in the first application arose, and that was prior to the commencement date of the National Environmental Management Act> .

20. Section 29 of the Environment Conservation Act provides for certain offences and penalties:

“(2) Any person_

(a) referred to in section 16(3) who contravenes any provision of a direction issued under section 16(2) or fails to comply therewith; or

(b) who contravenes a provision of section 18(6) or a condition of an exemption in terms of section 18(7),

shall be guilty of an offence and liable on conviction to a fine not exceeding R8 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(3) Any person who contravenes a provision of section 19 or 19A or fails to comply therewith, or fails to comply with a direction in terms of section 31A (1) or (2), or prevents any person authorized in terms of section 41A to enter upon such land or hinders him in the execution of his powers, shall be guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding three months.

(4) Any person who contravenes a provision of section 20(1), 20(6), 22(1) or 23(2) or a direction issued under section 20(5) or fails to comply with a condition of a permit, permission, authorization or direction issued or granted under the said provisions shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000 or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment, and to a fine not exceeding three times the commercial value of any thing in respect of which the offence was committed.

(5) .............................”

21. The process of assessment of whether an activity will probably affect the environment must be done in terms of the guidelines prescribed by regulations, made in terms section 26 of the Environment Conservation Act, published by Government Notice R1183 of 5 September 1998, and by section 24(7) of the National Environmental Management Act, 107 of 1998. The National Environmental Management Act has subsequently been amended and section 24(7) as it existed prior to the amendment is now contained in section 24(4) in amended form.

22. In addition, the National Department of Environmental Affairs and Tourism issued a “Guideline Document” in April 1998 on the environmental impact assessment process regulations for “Implementation of sections 21, 22 and 26 of the Environment Conservation Act”.

23. Regulation 2 of Government Notice R1183 provides:

“(1) These regulations apply in respect of any activity which has been identified in Government Notice R. 1182 of 5 September 1997 under section 21 (1) of the Act.”

The “Act” refers in this instance to the Environment Conservation Act, 1989.

24. Regulation 3 of Government Notice R1183 specifies certain requirements to be complied with by an applicant in terms of the regulations. Regulation 4 of Government Notice R1183 deals with the requirements in respect of applications for authorisation to undertake activities. Regulation 5 provides for the submission of plans of study for scoping for the purposes of scoping reports, while regulation 6 deals with “Scoping reports”. Regulation 7 deals with plans of study for environmental impact assessment, while regulation 8 deals with the submission of environmental impact reports.

25. Regulation 9 of Government Notice R1183 deals with the authority to make Records of Decision. It provides:

“(1) After the relevant authority has made a decision contemplated in regulation 6(3)(a), or has received an environmental impact report that complies with regulation 8, as the case may be, the relevant authority must consider the application and may decide to -

(a) issue an authorisation with or without conditions; or

(b) refuse the application.

(2) The relevant authority must determine the period of validity of the authorisation.

(3) The relevant authority may, from time to time, on the new information, review any condition determined by it as contemplated in sub-regulation (1)(a), and if it deems it necessary, delete or amend such condition, or at its discretion, determine new conditions, in a manner that is lawful, reasonable and procedurally fair.”

26. Regulation 10 deals with “Records of Decision”, and provides:

“(1) The relevant authority must issue a record of the decision that was taken under regulation 9(1) to the applicant, and on request to any other interested party.

(1A) The record of decision contemplated in sub-regulation (1) must indicate the period within which, and the method how, the applicant must make the record of decision available to any interested party who has complied with regulation 3(5) or who is included in the appendix contemplated in regulation 6(1)(e).

(2) The record of the decision must include-

(a) a brief description of the proposed activity, the extent or quantities and surface areas involved, the infrastructural requirements and the implementation programme for which the authorisation is issued;

(b) the specific place where the activity is to be undertaken;

(c) the name, address and telephone number of the applicant;

(d) the name, address and telephone number of any consultant involved;

(e) the date of, and persons present at, site visits, if any;

(f) the decision of the relevant authority;

(g) the conditions of the authorisation (if any), including measures to mitigate, control or manage environmental impacts or to rehabilitate the environment;

(h) the key factors that led to the decision;

(i) the date of expiry of the duration of the authorisation;

(j) the name of the person to whom an appeal may be directed as contemplated in regulation in 11;

(k) the signature of a person who represents the relevant authority; and

(l) the date of the decision.”

* SUMMARY OF FACTS AND CHRONOLOGICAL SEQUENCE OF EVENTS:

27. It is common cause in both applications, or at least not disputed, that the activity of conducting a retail business for the sale of petroleum products, as well as all works and activities associated with that activity, constitute an activity identified in section 21 of the Environment Conservation Act as an activity which will probably have a detrimental effect on the environment.

* History in respect of the first application:

28. It appears that Mr de Gouveia and Euronooi Properties made application to the Provincial Department during 2004 for authorization in terms of section 22 of the Environment Conservation Act, 73 of 1989, to construct a filling station.

29. On 29 November 2004, under reference number: EIA 224/2002NW, the Provincial Department passed a Record of Decision in that application. This Record of Decision professed to be a decision in terms of section 23 of the Environment Conservation Act in respect of an activity described by Government Notice R1183 of 5 September 1997. The Record of Decision stated:

“The project is a proposed construction of a service station to be known as Mooinooi Garage.”

30. It went on to describe the applicant for the authority as being Euronooi Properties and the location of the proposed activity as being a Portion of Stand 1042, Mooinooi Extension 3 (herein referred to as “the property”).

The actual Record of Decision of 29 November 2004 reads:

“Authorisation is granted in terms of section 22(3) of the Environment Conservation Act (Act No. 73 of 1989) in respect of the construction, erection or upgrading with regard to any substance which is dangerous or hazardous (listed as activity 1(c)(ii) in schedule 1 of GN. R. 1182 of 5 September 1997 (as amended) to [for] the proposed establishment of a new service station on the southeastern corner of Wilkenson an Lonhro Avenue, a Portion of Stand 1042, Mooinooi.....................”

[Irrelevant portions omitted by me.]

31. The Record of Decision contained a list of “Special Conditions”, as well as some “Standard Conditions”. Some of the Standard Conditions are relevant to the present application. They are:

“7.2.1 This authorisation is granted only in terms of section 22 of the Environment Conservation Act, 1989 (Act 73 of 1989) and does not exempt the holder thereof from compliance with any other legislation.

7.2.2 This Authorisation refers only to the activity as specified and described above. Any other activity listed under Section 21 of the Environment Conservation Act, 1989 (Act 73 of 1989) which is not specified above, is not covered by this authorisation, and must therefore comply with the requirements of the Act, Government Notice R.1183 and its amendments.

7.2.3 The conditions of this authorisation must be brought to the attention of all persons (employees, subcontractors, contractors, etc) associated with the undertaking of this activity and the applicant must take the necessary measures to bind such persons to this conditions. The applicant must carry out regular environmental audits to establish compliance with condition of this authorisation.

7.2.4 This authorisation is subject to the approval of the affected local authorities in terms of the legislation administered by them.

7.2.5 One weeks notice, in writing, must be given to the Director: Environmental Management Services of this Department before commencement of the construction activities. Such notice shall make clear reference to the site location details and reference number and given above.”

32. On 25 January 2005 the applicant received an incomplete copy of the Record of Decision, as a consequence whereof the applicant was not informed of its right to lodge an appeal in respect of the Record of Decision of 29 November 2004. Such appeal procedure is provided for in Regulation 11 of Government Notice R1183. As stated above, Regulation 10(1A) of Government Notice R1183 provides that the Record of Decision must indicate the period within which, and the method how the applicant must make the Record of Decision available to any interested party who has complied with Regulation 3(5), or who is included in the appendix contemplated in Regulation 6(1)(e). It was common cause that Mr de Gouveia, nor Euronooi Properties had strictly complied with this obligation.

33. Mr de Gouveia and Euronooi Properties were also dilatory in giving the incomplete notice to the applicant. The Record of Decision was passed on 29 November 2004, whereas the notification thereof only reached the applicant in January 2005. And, on top of that, when the notification reached the applicant at last, it was incomplete, as has already been pointed out. The copy of the Record of Decision which was forwarded to the applicant terminated at the foot of page 6 thereof while it is clear that there are further pages to follow.

34. As an excuse for the omission, Mr Segal raised a somewhat technical dispute by alleging that the applicant could not be regarded as an interested and affected person in terms of the provisions, presently under discussion. He based his argument on the fact that the mother of Mr Thomas of the applicant was the one who registered the interest of the applicant, arguing that it should have been Mr Thomas himself. Mr Segal argued that, consequently, the applicant was not registered as an interested party, and thus was not entitled to a right of appeal (and, presumably, also not entitled to notification of the Record of Decision). Mr du Plessis in reply, pointed out that no provision is made in the registration document for recording the capacity in which a person registers as an interested and affected person. For reasons, discussed later, I have no hesitation to reject Mr Segal’s argument. In any event, if it had been the view of Mr de Gouveia and Euronooi Properties in the first application that the applicant was not entitled to a copy of the Record of Decision, one must wonder why they forwarded an incomplete copy to the applicant.

35. Mr Segal also argued that it is only an owner of a licensed petrol station business in Mooinooi who had locus standi to oppose the application of Mr de Gouveia and Euronooi Properties, and/or take the Record of Decision on appeal. Mr Segal submitted that the applicant was not a licensed entity in this regard. This argument fails for at least two reasons:

35.1. In terms of section 35(3) of the Environment Conservation Act, the applicant is a person who is aggrieved by a decision of an officer or employee exercising powers delegated to him in terms of the Act. The applicant therefore has locus standi to file an appeal in terms of this provision.

35.2. From my discussion of the deeming provisions in relation to existing licence holders as at 17 March 2006, which will follow, it is obvious that the applicant is deemed to be the holder of licences to retail petroleum products in respect of the premises as well as in respect of the business.

It is my view that these circumstances effectively destroy the argument that only a licensed petrol dealer has locus standi and that the applicant did not have such authority to appeal the Record of Decision. It is quite clear that the applicant must be considered to be an interested and affected person in all respects in regard to the present applications. I hold that the applicant has complied with Regulation 6(1)(e), and is properly registered as an interested and affected party in respect of both two applications serving before me.

36. On 12 October 2005 a notice to cease building operations was issued by the Provincial Department to Euronooi Properties.

37. On or about 17 October 2005 an amended Record of Decision was issued by the Provincial Department. In terms of this amended Record of Decision, clause 7.2.8 (quoted above) was amended to provide for an amended clause 7.2.8 in the following terms:

“7.2.8 The applicant [Euronooi properties] must:

7.2.8.1 furnish all interested and affected parties with a copy of the original Record of Decision (including all the conditions attached to thereto), dated 29 November 2004.

7.2.8.2 ....................”

The amended Record of Decision, in paragraph 2, repeated the order to cease building operations:

“You are furthermore directed to cease any further construction and building operations relating to this development with immediate effect, failing which the department may take legal action against you.

Construction may only recommence once the department confirmed this by way of written communication.”

There can, in my view, be no doubt as to import of these two notices: Euronooi Properties was expressly prohibited from continuing with any building operations unless authorised thereto in writing by the Provincial Department.

38. On or about 14 November 2005 a formal appeal was lodged by the applicant against the first Record of Decision of the Provincial Department as well as against the environmental impact assessment which had been conducted. The appeal hearing took place on 24 March 2006. The result is still outstanding.

39. It is common cause that Mr de Gouveia and Euronooi Properties, after they had ceased building operations as a result of the notice to cease, issued previously on 12  and 17 October 2005, recommenced building operations of the filling station during or about May 2006, without the authority or permission of the Provincial Department. This was in spite of the directives to cease and the fact that the appeal was still pending.

40. In a letter by the Provincial Department, dated 12 May 2006, directed to Mr de Gouveia and Euronooi Properties, it was stated, inter alia:

“I have however, been informed that you are currently continuing with the development despite the fact that the appeal is still pending. That compromises the whole process in that it pre-empts the outcome of the appeal.

This letter therefore, serves to direct you to cease the development forthwith failing which appropriate action may be taken against you.

Please note that although whatever action may be taken might amount to a material and adverse administrative action this matter is urgent therefore I dispense with the requirements of a pre-notice (notice to show cause) in terms of the Promotion of Administrative Justice Act, 2000 and the National Environmental Management Act as amended.”

I shall return to the significance of the Provincial Department having waived its rights in terms of the Promotion of Administrative Justice Act and the National Environmental Management Act.>

41. In a letter, written to the Provincial Department on behalf of Euronooi Properties, dated 18 May 2006, Messrs Cranko Karp and Associates, stated:

“Our client has acted on advice from senior counsel that there is no provision in the legislation pertaining to this matter viz. the National Environmental Management Act 107 of 1998, the Environment Conservation Act 73 of 1989 as well as the Regulations Promulgated in terms thereof, in terms of which the Department of Agriculture Conservation and Environments or its officers, is [sic] conferred with the authority to issue a directive in terms of which our clients is [sic] directed to cease construction of its development, pending an appeal. It is for this reason that we are of the view that the directive to cease construction issued by the Department is ultra vires.”

42. On 19 May 2006 the applicant registered criminal charges against Mr de Gouveia and Euronooi Properties for their contravention of section 31A(1) read with section 29(4) of the Environment Conservation Act. This was to no avail, however, as the matter was not followed up by the South African Police Service. At the end of July 2006 it became clear that the Provincial Department was not acting against Mr de Gouveia and Euronooi Properties. On 8 August 2006, by letter written by the State attorney on behalf of the Provincial Department, it was indicated that the Provincial Department would lay criminal charges. On 10 August 2006 an update was requested by applicant from the Provincial Department. On 11 August 2006 an update was provided by the State Attorney in which it was indicated that no urgent application would be launched by the Provincial Department. However, on 18 August 2006 a letter was received confirming that criminal charges were (apparently upon reflection) registered by the Provincial Department against the first three respondents.

43. On 24 August 2006 the applicant brought the first urgent application, (under case number 27858/2006), enrolled for hearing on 13 September 2006. The application did not proceed on that day.

44. During mid September 2006, according to the first three respondents in the second application, the construction of the service station was finalized.

* History in respect of the second application:

45. On 12 September 2006 applications in terms of the Petroleum Products Act were lodged by Euronooi Petrol Station (as the owner of the business) and Euronooi Properties (as the owner of the property.)

46. On 26 September 2006 Euronooi Petrol Station commenced trading in petroleum products, a fact of which the applicant became aware on 9 October 2006. At that stage no authority had been granted to Euronooi Petrol Station to retail petroleum products to the public, and that remained the situation up to the time when the applications served before me.

47. The second application was issued for relief in terms of the Petroleum Products Act, and was set down for hearing on 13 October 2006. This application was postponed to 5 December 2006 for the papers to be finalized.

48. On 24 October 2006 the applicant directed a letter to the Controller of Petroleum Products, (hereinafter referred to as “the Controller”), requesting action against Mr De Gouveia and Euronooi Petrol Station. In the letter an answer was requested by 25 October 2006, failing which it would be accepted that the Controller does not intend to act. To date no answer had been received from the Controller.

* History in respect of both applications:

49. The further history of the two applications is that the first application was thereafter enrolled for hearing on the opposed motion roll for 26 November 2006. The application was removed from the roll by the applicant, and there is no cost implication in respect thereof. On 28 November 2006 respondents filed their answering affidavit in the second application. On 5 December 2006 the second application was on the urgent roll, but was postponed to the normal roll, for purposes of waiting for the reaction of the Controller to the application. On 20 February 2007 the second application was on the normal opposed motion roll, but the reaction of the Controller was still outstanding. The application was postponed sine die because of this reason. The Controller had still not taken any action in the matter, and none of the other government respondents have filed opposing affidavits. Notices to abide were filed on their behalf. On the same date the first application was also postponed sine die, because it was enrolled to be heard with the second application. The applications were thereafter, by agreement, enrolled for hearing on 22 August 2007, when they came before me.

* THE SECOND APPLICATION:

50. The second application was issued on 9 November 2006 as an urgent application. What brought this application on was the fact that the applicant became aware that Mr De Gouveia and Euronooi Petrol Station had commenced conducting a business of selling petroleum products to the public on the property referred to in the first application.

51. In the second application, the applicant prayed for various forms of relief. The amended notice of motion in the second application to which I have referred earlier, prays for the following relief:

“1. That first, second and third respondents be prohibited from conducting business in all petroleum products as defined in the Petroleum Products Act, 120 of 1977, as amended, pending the granting or refusal of a site licence in terms of the Petroleum Products Act to third respondent, and a retail licence in terms of the Petroleum Products Act to second respondent.

2. That first, second and third respondents be prohibited from competing unfairly with applicant, pending the finalization of all criminal proceedings currently pending against first, second and third respondents, by retailing petroleum products in terms of the Petroleum Products Act, 120 of 1977.

3. That the ninth and tenth respondents be ordered to take all required steps they may be entitled to take in terms of the Petroleum Products Act, 120 of 1977, to stop and prohibit second and third respondents from retailing petroleum products in terms of the Petroleum Products Act, contrary to the provisions of that Act, including taking action in terms of section 2A(2)(a) of the Petroleum Products Act.

4. That first, second and third respondents be ordered to pay the costs of this application.”

52. On 17 March 2006 the Petroleum Products Amendment Act, 2 of 2005, amending the Petroleum Products Act>, 120 of 1977, came into operation. On 27 March 2006 the regulations in terms of the Petroleum Products Act were promulgated.

53. It was common cause between the parties, or at least not contested, that as at the time of the coming into operation of s 2A and 2D on 17 March 2006:

47.1. The applicant had an established a business of selling petroleum products to the public; and

47.2. Euronooi Properties was the owner or lessee of the relevant property referred to; and

47.3. For purposes of the applications, Euronooi Petrol Station can be regarded as the owner of the business, being that of retailing petroleum products to the public; and

47.4. Euronooi Properties was in the process of constructing a petrol service station on the property, which construction had not been completed; and

47.5. Euronooi Petrol Station had not yet commenced retailing petroleum products to the public.

54. Sections 2A, 2B, 2C, 2D, 2E and 2F of the Petroleum Products Act>, 120 of 1977, as amended by their insertion by section 3 of the Petroleum Products Amendment Act, 58 of 2003, came into operation on 17 March 2006. Of these new insertions, certain subsections of sections 2A and 2D find application to the circumstances of the present application.

Section 2A provides:

“Prohibition of certain activities

(1) A person may not_

(a) ......................;

(b) wholesale prescribed petroleum products without an applicable wholesale licence;

(c) hold or develop a site without there being a site licence for that site;

(d) retail prescribed petroleum products without an applicable retail licence,

issued by the Controller of Petroleum Products.

(2) (a) If a person engages in an activity in contravention of subsection (1) the Controller of Petroleum Products must by written notice direct that person to cease such activity forthwith.

(b) The Controller of Petroleum Products may allow a person to continue with an activity contemplated in paragraph (a) pending an application and the issuing of a licence if the cessation of such an activity is likely to lead to a material interruption in the supply of petroleum products.

(c) If an application contemplated in paragraph (b) is unsuccessful, the Controller of Petroleum Products must by written notice direct that person to cease such activity and, if applicable, to rectify any state of affairs resulting from that person's activities within the period stipulated in the notice.

(3) If a person engages in an activity in contravention of a licence issued to that person, the Controller of Petroleum Products must by written notice direct that person to comply with the licence and, if applicable, to rectify any state of affairs resulting from such contravention within the period stipulated in the notice.

(4) Any person who has to apply for a licence in terms of subsection (1) must_

(a) ..........................;

(b) in the case of a site licence be the owner of the property concerned or in the case of publicly owned land have the written permission of the owner;

(c) in the case of retail and wholesale licences be the owner of the business concerned;

(d) do so in the form and manner prescribed.

(5) ..................

(a) ..................

(b) ..................

(6) ..................

(7) A licensed retailer shall only purchase petroleum products from a licensed wholesaler or a licensed manufacturer, or both.”

[Irrelevant provisions omitted by me.]

Section 2D provides:

“Transitional licensing provisions

(1) For the purposes of this section_

'hold' means to own or lease land, or to possess an option to purchase or lease land, that has been zoned and approved by appropriate authorities for use as a site; and

'process of developing' means the construction of, or the completion of the infrastructure necessary to use such land as a site within a period of 12 months from the date of commencement of the Petroleum Products Amendment Act, 2003.

(2) Any person who, at the time of commencement of the Petroleum Products Amendment Act, 2003_

(a) holds and is in the process of developing a site; or

(b) manufactures or wholesales petroleum products, or retails prescribed petroleum products;

shall, subject to subsection (3), be deemed to be the holder of a licence for that activity.

(3) (a) Any person referred to in subsection (2) shall, within a period of six months from the date of commencement of this section, apply for a manufacturing, wholesale, site or retail licence, as the case may be.

(b) Subsection (2) shall cease to apply if the person fails to apply for a licence within the period contemplated in paragraph (a).

(4) (a) An applicant contemplated in subsection (3) shall, on application, be entitled to be issued with a licence for the operation of the activity concerned if the applicant is in compliance with all national, provincial and local government legal requirements, that are in force immediately prior to the commencement of this Act for the operation of the activity concerned.

(b) Such applicant shall be subject to the general conditions of a licence set out in this Act,.................”

[Non-applicable provisions omitted by me.]

55. The scheme of section 2D of the Petroleum Products Act>, 1977 is to distinguish between licence holders in respect of the trading authority (which affects Euronooi Petrol Station) and site licences (which affects Euronooi Properties). In the present case, Euronooi Properties falls under section 2D(2)(a) of the Act, and in terms of the wording of that provision it is deemed to be the holder of the site licence, but that clearly does not entitle Euronooi Properties to trade in the retail business of selling petroleum products to the public. Euronooi Petrol Station would have qualified to be deemed to have a trading licence if on 17 March 2006 it was already trading as envisaged in section 2B(2)(b), which it was not.

56. It is consequently patently clear on the facts which were common cause and the statutory provisions referred to above, that the conduct of Euronooi Petrol Station in retailing petroleum products to the public was unlawful for at least three reasons:

50.1. Euronooi Petrol Station did not possess the necessary authority;

50.2. Nor could it be deemed to have had authority in terms of section 2D(2)(b) of the Petroleum Products Amendment Act>, simply because it did not qualify for the deeming provision in that it was not trading as a retailer of petroleum products to the public as at 17 March 2006; and

50.3. Because of the provisions of section 2D (4) of the Petroleum Products Amendment Act read with the provisions of the Environment Conservation Act, 73 of 1989.

57. The consequence is that the applicant has made out an unanswerable case for relief in both applications.

* SUBMISSIONS ON BEHALF OF THE FIRST THREE RESPONDENTS:

* Alleged lawful trading by the first three respondents:

58. It was argued by Mr Segal that the Controller of Petroleum Products accepted that Euronooi Petrol Station was trading lawfully. This was so, it was submitted, because the controller had never stopped the respondents from selling petroleum products or acted against them for doing so. He must consequently be taken to have considered that Euronooi Petrol Station is te be deemed to have a trading licence. I have already dealt with the deeming provision in section 2D(2)(b), showing that Euronooi Petrol Station as a business cannot lay claim thereto because it had not been trading as such as at 17 March 2006.

59. A disturbing feature in this respect is the fact that an attorney, on behalf of for the first three respondents, filed an affidavit in which he related a conversation which he allegedly had with the Controller of Petroleum Products, a Mr Nandkishore, during which he informed Nandkishore that-

“..........our clients received documents from the Department of Minerals & Energy in terms of which their applications for Site and Retail Licences had been accepted”.

He inquired from Mr Nandkishore what the consequences and effects of such acceptance notices were. The attorney continues in his affidavit:

“He (Nandkishore) advised that if our clients had received such acceptance notices and that no further letters had been received by our clients from the Department requesting further documents or objecting to such applications that our clients are deemed to be the holders of such respective site and retail licence to which the applications pertain.”

Significantly, there are no “documents” to which the attorney refers, to be found in the papers, but only one document. Nor are there “notices” - there is only one notice. Both references to “documents” and “notices” can in fact only refer to one document, which is a notice. That notice is attached to the papers. A cursory reference to the document shows that the averment by the attorney to which I have referred, is unfounded and opportunistic. The document professes to be no more than a notice of receipt of an application for a licence from Euronooi Petrol Station. Moreover, that notice refers to a variety of documents required. I consider the attempt by the attorney to further the case of his clients in this way as regrettable.

60. A further submission by Mr Segal in this respect was that his clients are in fact valid licence holders. This argument is, in my view, unfounded. There is no indication on the papers to support the contention. On the contrary, it appears from the papers that it was conceded that Euronooi Petrol Station did not and does not have a trading licence, not was or is it entitled on the facts to be deemed to have one.

61. In any event, if Euronooi Petrol Station was in fact the holder of a valid licence at all or any material time, it is inconceivable that such licence would not have been attached to the papers, because it would have been realised that the production of such licence would have put an end to the second application.

* Opinion of senior counsel:

62. As I have indicated, in dealing with the fact that Euronooi Properties and Mr de Gouveia continued building operations in direct conflict with directions given by the Provincial Department, the attorney for the first three respondents relied on the fact that his clients had received advice from senior counsel that the conduct of the Provincial Department had been ultra vires. I have referred to the relevant correspondence in this regard.

63. As has been recorded above, it appears from section 22(3) of the Environment Conservation Act that the Provincial Department is authorised to impose such conditions, if any, as he or it may deem necessary to a Record of Decision. This is particularly provided for in Regulation 10(1A). Section 31A of the same Act furthermore specifically authorizes the competent authority to issue a cease and desist directive.

64. Mr Segal wanted to tell me what the advice of senior counsel was, but I stopped him from doing so. The reason for that is that even assuming that the said advice was correct, it seems to me that it is irrelevant. Certain quasi-judicial decisions had been made and directions given. Until they are legally set aside, they remain of full force and effect. There is no judicial consequence to the opinions of counsel that I am aware of which can have the effect of neutralising such orders or directions. It is only when an existing order is set aside by a competent authority, that its operation ceases. For so far as the first three respondents considered that this excuse justified them for not complying with competent orders and directions, that alleged entitlement is rejected.

* No steps taken:

65. What is significant in respect of the excuses of the first three respondents, is that at the time of the hearing of the present applications, no steps had been taken by them in an attempt to set aside any decision or direction of the Provincial Department. This, in spite of the fact which I have already alluded to, that the Provincial Department notified the first three respondents that, because of the urgency of the matter, it waived compliance by the first three respondents with the provisions of the Promotion of Administrative Justice Act and the National Environmental Management Act>.

* Non-joinder:

66. Mr Segal also argued that the Controller of Petroleum Products is a necessary and interested party to the second application, and should therefore have been joined by the applicant. I have dealt earlier with the position of the Minister of Minerals and Energy of the National Government who has been joined in the second application as the tenth respondent. I have pointed out that I do not consider that it was necessary for him or his Department to have been joined. It is not clear to me that the Minister or the functionaries in his department who might have had something to do with the case in hand, can be said to have a direct and substantial interest in the present proceedings. (See: Morgan and Another v Salisbury Municipality 1935 AD 167; Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) ; Sheshe v. Vereeniging Municipality, 1951 (3) SA 661 (AD) at 666 in fine; Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O); Rahim v Mahomed 1955 (3) SA 144 (D) at 147B _ E; Kock & Schmidt v Alma Modehuis (Edms) Bpk 1959 (3) SA 308 (A); United Watch & Diamond Co and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) at 415E; Khumalo v Wilkens and Another 1972 (4) SA 470 (N) at 475: Smith v Conolect 1987 (3) SA 689 (W) at 690 I - 691 F.)

67. But, in any event, as I have pointed out, the Minister has been joined in the second application. There is no rule which specifies that each and every official in his Department who had something to do with the application, must be joined individually as a respondent.

* Locus Standi of the Applicant:

68. Dealing with the question of the locus standi of the applicant, to which I have referred above, Mr Segal was constrained to abandon the attack based upon the alleged non-registration of the applicant as an interested and affected person.

69. Mr Segal, however, persisted in his argument that it could only be another licensed holder of business rights in petroleum products who is authorised to object. I have dealt with this issue before, and it suffices to say that I reject this argument. There can be no question that the applicant was at all relevant times entitled to the benefit of the deeming provisions in relation to both its site- and trading licences.

70. It has to be realised that prior to 17 March 2006 no licences existed. That is the very reason for the deeming provisions to have been promulgated. Because the applicant was already trading as at 17 March 2006, it falls into the category of licence holders which are deemed to have a trading licence.

71. The Constitution of the Republic of South Africa, 1996, provides in section 24:

“Everyone has the right_

(a) to an environment that is not harmful to their health or well_being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that_

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

In HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism, 2006 (5) SA 512 (T), Murphy J considered the import of section 24 of the Constitution, (the Constitution of the Republic of South Africa, 1996) in paras. 16-23 at pp.517-520, from which I quote the following relevant extracts:

“[16] Section 24(a) of the Constitution guarantees the fundamental right of everyone to an environment that is not harmful to their health or well_ being. Section 24(b) imposes programmatic and positive obligations on the State to protect the environment through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development, while promoting justifiable economic and social development.

........................ the principle of environmental assessment is premised upon and interrelated to a precautionary principle mandating a risk_averse and cautious approach. Where there is a risk of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation (see Glazewski [ Environmental Law in South Africa (Butterworths 2000)] at 1 _ 27). As I understand Prof Glazewski, this schemata of principles and obligations underpins the environmental right in s 24 of the Constitution.

[17] Section 24 of the Constitution, as outlined above, contains two components. Section 24(a) entrenches the fundamental right to an environment not harmful to health or well_being, whereas s 24(b) is more in the nature of a directive principle, having the character of a so_called second_generation right imposing a constitutional imperative on the State to secure the environmental rights by reasonable legislation and other measures. ................

[18] The scope of the right is therefore extensive. It does not confine itself to protection against conduct harmful to health, but seeks also by, inter alia, the promotion of conservation and ecologically sustainable development, to ensure an environment beneficial to our 'well_being'.................

Professor Glazewski (at 86) comments on the meaning of the expression 'well_being' in the environmental_law context as follows:

'In the environmental context, the potential ambit of a right to ''well_being'' is exciting but potentially limitless. The words nevertheless encompass the essence of environmental concern, namely a sense of environmental integrity; a sense that we ought to utilise the environment in a morally responsible and ethical manner. If we abuse the environment, we feel a sense of revulsion akin to the position where a beautiful and unique landscape is destroyed or an animal is cruelly treated.'

[19] The attainment of this objective or imperative confers upon the authorities a stewardship, whereby the present generation is constituted as the custodian or trustee of the environment for future generations. From this, it follows that owners of land no longer enjoy the absolute real rights known to earlier generations. An owner may not use his or her land in a way which may prejudice the community in which he or she lives because, to a degree, he or she holds the land in trust for future generations _ see King v Dykes 1971 (3) SA 540 (RA) at 545.

[20] ......................

[21] The first steps taken by the authorities after the adoption of the fundamental environmental right in the Constitution, before the enactment of NEMA, were the promulgation of regs 1182, 1183 and 1184 under s 21(1) of the ECA, which listed the activities potentially detrimental to the environment and set out the rules regarding the compilation of environmental_impact assessments relating to such activities. Once the Minister has declared activities as identified, no such activity may be undertaken unless a written authorisation has been obtained from the Minister or competent authority designated by the Minister. Section 22(2) of ECA provides that, in granting authorisation, the competent authority may require reports concerning the impact of the proposed activity, and of alternative proposed activities, on the environment.

[22] .................

[23] Regulation 1183, as I have said, contains the substantive body of rules regarding the conduct and content of environmental assessments required to be performed in terms of s 22 of ECA. ............................ Broadly, the assessment must be carried out by an independent consultant with expertise in the area of environmental concern, as well as the ability to perform all relevant tasks, including the ability to manage any public_participation process. The regulations go on to set out fully the requirements of screening, scoping and carrying out of the environmental_impact assessment, as well as the authorisation process.”

[Portions of the original text omitted, and emphasis supplied, by me.] [The judgment of Murphy J was upset on appeal, but on a ground which does not affect the validity of the extracts quoted above.]

72. I have been unable to discover any reason why the applicant should not be entitled to the rights which the Constitution enshrines for the benefit of “everyone”.

73. Based upon what has been referred to in this judgment, I have concluded that the applicant must be considered to be an interested and affected person in respect of the environmental issues which arise in the first application, and that he had locus standi in respect thereof.

* Interpretation of section 2D of the Petroleum Products Amendment Act:

74. Mr Segal argued that upon a proper interpretation of section 2D of the Petroleum Products Amendment Act, it was intended by the legislature that those entities which were either trading or constructing a service station as at 17 March 2006, should be deemed to have a licence. The conclusion contended for was that Euronooi Petrol Station would be deemed to have a trading licence, because Euronooi Properties was busy with the construction of the service station at the time, and therefore was deemed to have a site licence.

75. I have been unable to discover any provision in the Act which supports the contention. It appears to me that the provision draws a clear distinction in separate subsections between site- as opposed to trading licences.

76. It also appears to me that the use of the word “hold” in section 2D(1) effectively excludes Euronooi Petrol Station, because it did not hold such authority at the time.

77. In any event, the argument flies in the face of the reality of the situation, in that Euronooi Properties never pretended to be an applicant for a trading licence. This authority was applied for by Euronooi Petrol Station. That much is common cause.

* TEMPORARY/PERMANENT INTERDICT:

78. Mr Segal in my view correctly argued that the relief requested in the amended notice of motion in the second application is in effect for a permanent interdict. Although the amended notice of motion couched the relief sought in the form of a temporary interdict, it is clear that the relief, if granted, will be permanent in its nature and effect (Fourie v Uys 1957 (2) SA 125 (C) per Herbstein J at 126 D-G.) This is so because, if the relief is granted, the proviso that the relief will be subject to the acquisition of the necessary trading licence, will have the same effect as an order which simply prohibits the relevant respondents from trading unlawfully (without a trading licence).

79. I believe, therefore, that it would be incorrect, in these circumstances, to approach the second application on the basis of the requirements for a temporary interdict.

80. In the case of the first application, the relief is in fact for a temporary interdict, and that application is approached by me on that basis.

81. It is true that part of the mischief which was sought to be avoided in the first application, had materialised, as the construction had been unlawfully completed. However, the issue of storage of petroleum products on the property, as well as the consideration that Euronooi Properties must be considered to permit Euronooi Petrol Station to conduct business on the property, remained in contention. I consider that the applicant is entitled to ask for a finding that it was entitled to approach this Court for the relief sought in the first application..

82. Mr Segal pointed out that in the case of a permanent interdict the applicant is charged with proving its entitlement to the relief on a balance of probability, as opposed to the situation in a temporary interdict, where an applicant is required merely to show a prima facie right which may be open to some doubt, that he might suffer irreparable harm, and that the balance of convenience favours the granting of temporary relief. Mr Segal is, of course, correct in his summary of the legal situation. See: Webster v Mitchell, 1948 (1) SA 1186 (W) at p.1190; 1192.

83. The question therefore is whether the applicant has proved on a balance of probabilities that it is entitled to the orders sought in the second application.

84. What the applicant had to show in the second application to entitle it to a permanent interdict, is:

76.1. that he has a clear right (Setlogelo v Setlogelo, 1914 AD 221at 225 - 7; Burnham v Neumeyer, 1917 TPD 630 at 633; Nienaber v Stuckey, 1946 AD 1049 at 1053, 1056; Webster v Mitchell, 1948 (1) SA 1186 (W) at 1186 [Bottom] -1190; Liss Shoe Co (Pty) Ltd v Moffett Building & Contracting (Pty) Ltd, 1952 (3) SA 484 (O) at 487D; Fourie v Uys, 1957 (2) SA 125 (C) at 126 D-G; 127F-128A and 128F-128G; Olympic Passenger Service (Pty) Ltd v Ramlagan, 1957 (2) SA 382 (D) at 383A-F; 384F-H; Kibe v Mphoko & Another, 1958 (1) SA 364 (O) at 367 G-H; Cresto Machines v Afdeling Speuroffisier SAP, 1970 (4) SA 350 (T), at 367G; Johannesburg Consolidated Investment Co. Ltd v Mitchmor Investments, 1971 (2) SA 397 (W), at 405B; Pentagon Fibreglass & Plastics (Pty) Ltd & Others v Hennic (Pty) Ltd, 1978 (3) SA 587 (T) at 589A; National Chemsearch (SA) v Borrowman & Ano, 1979 (3) SA 1092 (T) at 1095 D); and

76.2. that his right had been unlawfully infringed upon or that there exists a reasonably credible or well-founded fear of such infringement (National Chemsearch (supra) at 1095 D) and

76.3. that the infringement has, or will cause it harm; and

76.4. that he does not have any other a satisfactory remedy available (National Chemsearch (supra) at1095 D; Setlogelo v Setlogelo, 1914 A.D. 221, at 227; Buitendach and Others v West Rand Proprietary Mines Limited and Another 1925 TPD 886, at 906; Cresto Machines v Afdeling Speuroffisier SAP 1970 (4) SA 350 (T), at 367G; National Chemsearch (Pty) Ltd v Borrowman and Another 1979 (3)SA 1092 (T) at 1118H, 1121A & 1123 F-H.)

85. In considering whether the applicant had succeeded in proving his case so as to entitle him to a permanent interdict in motion proceedings, the authorities show that the approach must be to take the allegations made in support of the application which are not disputed or cannot be disputed by the respondents, and thereafter to have regard to the allegations of the respondents. If upon a consideration of the evidence, so approached, the applicant has not shown on the balance of probabilities that he is entitled to the relief which he asks, a final interdict will be denied. If the applicant has succeeded in doing so, a final interdict may be granted, depending upon the result of the exercise of the Court’s discretion to grant or refuse a final interdict.

86. In the oft-quoted appeal case of Plascon_Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), Corbett JA (as he then was)(with whom Miller JA, Nicholas JA, Galgut AJA and Howard AJA concurred) stated at 634E-635:

“Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a final interdict, together with ancillary relief, on the papers and without resort to oral evidence. In such a case the general rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E_G, to be:

‘... where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order... Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.’

This rule has been referred to several times by this Court (see Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) at 938A _ B; Tamarillo (Pty) Ltd v B N Aitkin (Pty) Ltd 1982 (1) SA 398 (A) at 430 _ 1; Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923G _ 924D). It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 _ 5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D _ H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross_examination under Rule 6(5)(g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see e.g. Rikhoto v East Rand Administration Board and Another 1983 (4) SA 278 (W) at 283E _ H). Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far_fetched or clearly untenable that the Court is justified in rejecting them merely on the papers (see the remarks of Botha AJA in the Associated South African Bakeries case, supra at 924A).”

87. As far as the harm which the applicant suffers is concerned, I consider that the written proof of its lower income from the sale of petroleum products, which are attached to the papers, presents sufficient proof. Mr Segal has not attacked this information.

88. Arguably, the applicant can be said to have an alternative remedy, founded in a claim for damages. The question is whether the applicant should be compelled to take that route. Firstly, an action for damages will certainly take a long time to bring to conclusion, and there is a clear sense of urgency that the present situation should be defused. Secondly, the reason why the applicant is before Court in the first place, is the unlawful conduct of the first three respondents. There is no reason which occurs to me in the circumstances of the two applications which would warrant any sympathy with the first three respondents which might persuade me to refuse the relief which the applicant seeks, caused by their own unlawful conduct.

89. Mr Segal also submitted that the applicant was not entitled to apply for an interdict in respect of past infringements of its rights. He relied on the cases of Philip Morris Inc & Another v Marlboro Shirt Co SA Limited & Another 1991 (2) SA 720 (A) at 735B and Stauffer Chemicals Chemical Products Divisions of Cheseborough-Ponds (Pty) Limited v Monsanto Company 1988 (1) SA 805 (T) at 809 F. Mr Segal’s argument loses sight of the continuing unlawful conduct of his clients, as well as the fact that the applicant had the right to apply for the relief at the time of the issuing of the first application.

90. I am consequently of the view that the applicant has succeeded in proving an entitlement to a permanent interdict against the first three respondents in the second application as well, in order to prohibit and restrain them from acting unlawfully.

* DISPUTES OF FACT:

91. Mr Segal argued that there are material disputes of fact on the papers. I have been unable to identify any such disputes. Such disputes as have been raised by the first three respondents cannot be considered to constitute “real” or “material” disputes of fact. The denials and protestations by the first three respondents of the facts alleged by the applicant do not, in my opinion, raise a real, genuine or bona fide dispute of fact.

92. I am satisfied as to the inherent credibility of the applicant's factual averments, which allows me to proceed on the basis of the correctness thereof.

93. I am of the view that the allegations and denials of the first three respondents are so effectively neutralised by objective documentary evidence, that I am justified in rejecting it.

94. Mr Segal also advanced the arguments in respect of the first application that it had become academic. For reasons which appear from what I have stated above, I wholeheartedly disagree with this contention. The continuing unlawful conduct of the third and the fourth respondents in the first application has the effect of perpetuating the problem.

* THE RIGHT OF THE APPLICANT IN RESPECT OF THE SECOND APPLICATION:

95. The applicant has in my view succeeded in establishing that it has a right to put a stop to any unlawful conduct by the first and second respondents and Euronooi Properties permitting that conduct as a result of which the applicant suffers harm or loss.

96. Whether that harm or loss results from the principle of unfair trading by the these respondents or by reason of their unlawful non-compliance with statutory requirements, matters not. What is important that in both instances the conduct complained of is unlawful conduct.