Pine Glow Investments (Pty) Ltd v Minister of Energy and Others (1264/2023) [2025] ZASCA 75 (2 June 2025)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

  

 Reportable

Case
no: 1264/2023

In
the matter between:

 

PINE
GLOW INVESTMENTS (PTY) LTD       
                                                

APPELLANT

 

and

 

THE
MINISTER OF
ENERGY                                                       

    FIRST RESPONDENT

THE
CONTROLLER OF PETROLEUM

PRODUCTS         
                                                                        SECOND

RESPONDENT

ERF
[…] HIGHVELD TECHNOPARK

INVESTMENTS
(PTY) LTD                                 

                        

    THIRD RESPONDENT

NAD
PROPERTY INCOME FUND (PTY) LTD 
                            FOURTH

RESPONDENT

ROYALE
ENERGY (PTY) LTD                           

                         

     FIFTH RESPONDENT

ROYALE
ENERGY GROUP (PTY) LTD                                      

     SIXTH RESPONDENT

ROYALE
ENERGY MANAGEMENT SERVICE

(PTY)
LTD                                                               

                    SEVENTH
RESPONDENT

ROYALE
ENERGY OLIFANTSFONTEIN

(PTY)
LTD                                                               

                    
  EIGHTH
RESPONDENT

VIVA
OIL (PTY)
LTD                                                                     

    NINTH RESPONDENT

TOKIVECT
(PTY)
LTD                                                                 

   TENTH RESPONDENT

 

Neutral
citation:   Pine Glow Investments (Pty) Ltd v The
Minister of Energy and Others (1264/2023) [2025] ZASCA 75 (2 June
2025)

Coram:                
ZONDI DP and MOCUMIE, MOKGOHLOA
and KOEN JJA and MOLITSOANE AJA

Heard:       
          5 May 2025

Delivered:  
        This judgment was handed
down electronically by circulation to the parties’

representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand-down
of
the judgment is deemed to be 11h00 on 2 June 2025.

Summary: 
Administrative Law – Petroleum Products Act 120 of 1977
(the Act) – whether decision of Minister of Minerals and Energy

(the Minister) on appeal remitting decision of Controller of
Petroleum Products (the Controller) for re-evaluation constitutes

administrative action – whether such remittal within Minister’s
powers in    s 12A of the Act –
whether
Controller functus officio regarding re-evaluation of site and
retail licences pursuant to remittal – whether objector to
approval of licences had internal
remedy of appeal to the Minister in
terms of s 12A of the Act and should first exhaust such remedy –
if so, whether aggrieved
party should be exempted from first having
to exhaust internal remedy – whether Controller re-evaluated
the licence applications
in an unfair manner and/or was biased.

 

 

ORDER

 

On
appeal from: Mpumalanga Division of the High Court, Mbombela
(Roelofse AJ, Vukeya J and Greyling-Coetzer AJ, sitting as a court of
appeal):

1     
The appeal is dismissed.

2     
The appellant is directed to pay the third and
fourth respondents’ costs of the appeal, such costs to include
the costs of
two counsel where so employed.

 

JUDGMENT

 

Koen
JA (Zondi DP and Mocumie and Mokgohloa JJA and Molitsoane AJA
concurring):

 

Introduction

[1]          
This
appeal concerns a decision by the second respondent, the Controller
of Petroleum Products (the Controller), which awarded a
retail
licence to the third respondent, Erf […] Highveld Technopark
Investments (Pty) Ltd (Erf […]) and a site licence
to the
fourth respondent, NAD Property Income Fund (Pty) Ltd (NAD) pursuant
to the provisions of the Petroleum Products Act 120
of 1977 (the
Act).[1]
The
issue raised is  whether the Controller’s decision should
have been reviewed and set aside at the instance of the
appellant,
Pine Glow Investments (Pty) Ltd (Pine Glow).

 

[2]          
Pine
Glow was unsuccessful with its review in both the Mpumalanga Division
of the High Court (the court of first instance)[2]
and
on appeal to the full court of that division (the full court).[3]
The
present appeal is against the decision of the full court with the
special leave of this Court. All references hereafter to section

numbers are to sections of the Act, unless stated otherwise. Only Erf
[…] and NAD (collectively referred to as the respondents)

oppose the appeal.[4]
 

 

Background

[3]          
Pine Glow holds a site licence for the Caltex
Acornhoek Mall filling station, Mpumalanga province. It is also a
fuel wholesaler
supplying some filling stations in the Acornhoek
area.

 

[4]          
On
26 April 2018, Erf […] and NAD applied to the Controller for
respectively a retail licence and a site licence in respect
of Erf
9[…], Green Valley, Extension 1, Acornhoek (the site).[5]
Pine
Glow objected to the issue of the licences. On 9 November 2018, the
Controller refused both applications.

 

[5]          
Erf
[…] and NAD lodged an appeal in terms of s 12A[6]
with
the first respondent, the Minister of Minerals and Energy (the
Minister)[7]
against
the refusal of the licences. Pine Glow opposed the appeal. On 12
December 2019 the Minister upheld the appeal, set the Controller’s

refusal of the applications aside and advised that he was referring
the site and retail licences back to the Controller for re-evaluation

taking into consideration information submitted and other
documentation obtained during the appeal process (the Minister’s

decision). The Minister’s decision was recorded as follows:

‘1.       
I, the Minister of Petroleum Resources and Energy . . . considered
the appeal . . .

2.        
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.

3.        
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.’

 

[6]          
Pine Glow’s complaint is not so much against
the part of the Minister’s decision which upheld the appeal
against the
initial decision of the Controller refusing the licences,
but primarily against the portion of the decision remitting the
decision
as to whether the licences should be granted to the
Controller. The Minister, in a letter of 12 December 2019, explained
the motivation
for his decision as follows:

‘After
having due regard to the arguments put forward by the Appellants,
Legal Services is of the view that there are numerous possible

deficiencies in the assessment of this set of licence applications
that have come to the fore. It is apposite that the Controller

re-evaluates this set of licence applications with all of the
information at hand as well as the information supplied by the
Appellants
and the objectors. Any deficiency would be cured by such a
re-evaluation . . . ’

The information alluded
to by the Minister comprises, inter alia, updated reports dealing
with traffic counts, the economic feasibility
of the proposed filling
station and the expansion and growth in the area of Acornhoek.

 

[7]          
In an email
addressed to the Minister on 5 February 2020, Pine Glow’s
attorney recorded that the Minister’s decision
was, in his
view, unlawful because the Minister was required to decide the
appeals and was not empowered to refer the applications
back to the
Controller. Pine Glow contended that the Minister failed to take a
decision as contemplated in s 6(3)(b)
of the
Promotion of Administrative Justice Act 3 of 2000 (the
PAJA),[8]
and that the Minister had not provided reasons for his decision. It
demanded full written reasons forthwith and that the Minister
decide
the appeal within 30 calendar days. It expressed the view that any
decision taken by the Controller pursuant to the Minister’s

decision would be ultra
vires
and of no legal force and effect, as would be any licences issued by
the Controller pursuant thereto. Finally, it cautioned that
it would
approach the high court for urgent relief should that be deemed
necessary.    

 

[8]          
On 27
February 2020, the Senior Legal Administration Officer of the
Controller responded to Pine Glow’s attorney. The response

recorded that: since the enactment of the licensing system in 2006,
decisions by the Minister to refer matters back for reconsideration

by the Controller have never been challenged; and that following
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others (Oudekraal)[9]
an invalid administrative action continues to have legal consequences
and remains competent and valid until reviewed and set aside
in an
appropriate forum.   

 

[9]          
On
12 November 2020, after undertaking various enquiries, a second site
visit, visits to competitors in the area of the site, obtaining

further information including information from Pine Glow pursuant to
a visit to it, the Controller approved the applications and
issued
the retail and site licences (the Controller’s decision).[10]
On
10 December 2020, Pine
Glow brought an application, pursuant
to the provisions of the PAJA,
to review and set aside the Minister’s
decision and the
Controller’s decision. Pending
the review, Pine Glow also sought an order that the respondents be
interdicted and restrained from constructing a filling
station on the
site.

 

[10]      
Pine
Glow abandoned its challenge to the Minister’s decision before
the review came to be adjudicated before the court of
first
instance.[11]
It
also did not persist with the interdict.

 

[11]      
The court of first instance, per Mashile J,
dismissed the review of the Controller’s decision. It concluded
that: the Minister
was entitled to refer the matter back to the
Controller; the Controller was expected to assist the Minister as
requested and in
doing so was discharging his responsibilities set
out in s 3(2)(a);
in doing so the Controller was not revisiting his own decision but
was merely executing instructions of the Minister; the Controller
was
therefore not functus officio;
the Controller’s decision re-assessing the applications was
part of the Minister’s consideration of the appeal; therefore

there was no internal appeal available to the Minister in respect of
the Controller’s re-evaluation and grant of the licences;
the
Minister could not be functus officio
as he had upheld the appeal; and the decision to re-assess the
applications was that of the Minister and not the Controller.

 

[12]      
The subsequent appeal to the full court was
dismissed. The full court concluded inter alia that: the Minister’s
decision and
the Controller’s decision were separate
administrative acts as contemplated in the PAJA; s 7(2)(a)
of the PAJA required Pine Glow to exhaust internal remedies provided
for in any law before taking any administrative action on
review; s
12A provided such a remedy; Pine Glow had failed to exhaust such
remedy, or to apply to be exempted from the obligation
to do so; and
Pine Glow’s review application was accordingly premature. 

 

[13]      
Pine Glow seeks an order from this Court that the appeal be upheld
with the costs of two
counsel, that the order of the full court be
set aside and that it be replaced with an order that:

‘1.       
The appeal is upheld and the third and fourth respondents jointly and
severally, shall
pay the costs of the appeal;

2.        
That the order of the Court a quo dated 10 June 2022, is set aside
and replaced
with the following:

i          
The decision of the second respondent, taken on 12 November 2020, to

re-evaluate and approve the respondents’ site and retail
Applications in terms of the provisions of the PPA, is reviewed
and
set aside;

ii         
the third and fourth respondents are ordered, jointly and severally,
the
one paying the other to be absolved, to pay the costs of the
application.’

 

 

 

The
parties’ contentions

[14]      
Pine Glow argues that: the Minister’s
decision was not administrative action as contemplated in PAJA; the
Controller could not be authorised in terms of s 12A to re-evaluate
the licence applications; and the Controller was functus officio
and could not grant the applications. Alternatively, if the
Controller was not functus officio, Pine Glow contends that:
the Controller did not conduct the re-evaluation of the licences in a
procedurally fair manner in compliance
with the prescripts of the
PAJA and the audi alteram partem rule; and that the Controller
was biased.

 

[15]      
The respondents maintain that: the Controller’s original
decision not to grant the
licences no longer exists as it was set
aside on appeal to the Minister; the Minister’s decision to
remit the applications
to the Controller to consider the licence
applications afresh with additional information constitutes
administrative action; the
Minister’s decision is no longer
sought to be impugned as separate substantive relief; the Minister’s
decision accordingly
stands; the Controller thereafter took a new
decision on facts previously submitted in support of the applications
for the retail
and site licences augmented by additional information
and documents which were not before the Controller previously when
the original
decision was taken; therefore, the Controller was not
reconsidering his own decision on the same facts and was not functus
officio. They further maintain that a review of the Controller’s
decision was premature, as Pine Glow had not exhausted the internal

remedy of an internal appeal against the Controller’s decision
to the Minister.

 

Discussion

Was the Minister’s
decision an administrative act?

[16]      
Preliminary to any discussion of the merits of
Pine Glow’s review based on the provisions of the PAJA, is the
question whether
the Minister’s decision and the Controller’s
decision each constitute administrative action as contemplated by the
PAJA. The Controller’s decision was rightly accepted by all the
parties as constituting administrative action. Pine Glow however

persisted that the Minister’s decision did not amount to
administrative action.

 

[17]      
It
contends that to qualify as administrative action in compliance with
the various components in the definition of administrative
action, as
confirmed in Minister
of Defence and Military Veterans v Motau and Others (Motau),[12]
its
rights had to be affected adversely by the Minister’s decision.
It maintains that its rights were not affected adversely
because when
the Minister’s decision on appeal did not result in the grant
of the licences, the only parties whose rights
were affected were the
respondents.

 

[18]      
That argument cannot be sustained. Pine Glow had
participated in the appeal supporting the Controller’s initial
decision refusing
the licence applications. Its contention is that
the Minister’s powers in deciding the appeal were only
two-fold: either
to uphold the appeal or to dismiss the appeal. When
the Minister upheld the appeal and added the remittal of the licence
applications
to the Controller, Pine Glow’s rights would be
adversely affected. As an objector, the licence applications to which
it had
previously successfully objected, were not disposed of in the
appeal, but were now referred back to the Controller for what Pine

Glow viewed as ‘an unlawful reconsideration’. These
consequences satisfy the requirement of its rights being affected

adversely.

 

[19]      
It was not disputed that the other requirements
for the Minister’s decision to amount to administrative action,
as discussed
in Motau,
were satisfied. The Minister’s decision accordingly amounted to
administrative action.

 

The
ambit of the Minister’s powers on appeal in terms of s 12A

[20]      
The next consideration is whether the Minister’s decision,
notably the remittal,
fell within the powers conferred on the
Minister in terms of s 12A. Pine Glow maintains that the Minister did
not have such power.
It however formulates the proposition from the
perspective of the Controller, that is whether the Controller could
lawfully re-evaluate
the licence applications having been enjoined to
do so by the Minister’s decision. It views the issue from that
perspective
probably because, having initially sought to review the
Minister’s decision, it abandoned that relief against the
Minister
and removed it from the relief claimed by an amendment to
the notice of motion. The review application was however not
withdrawn
against the Minister. He remained cited as the first
respondent.

 

[21]      
The
question arising is whether this Court can enquire into the legality
of the Controller’s decision, as it will involve
enquiring
whether the Minister’s decision pursuant to s 12A, remitting
the licence applications for re-evaluation, fell within
his powers,
where Pine Glow had abandoned the relief for the review and setting
aside of the Minister’s decision as against
the Minister. It is
trite law, recognised inter alia in Oudekraal,
that absent a successful review of an administrative action, that
administrative action, even if invalid, stands as a fact. That
is a
necessary consequence to ensure administrative certainty.[13]

 

[22]      
Oudekraal
however
recognised that where an administrative body seeks to exercise
coercive powers against a person, it is permissible, and
a court is
indeed enjoined[14] to
consider a collateral challenge to the legality of a preceding
administrative act on which the coercive provision is premised
for
its existence and enforcement. It held:[15]

‘It
is important to bear in mind (and in this regard we respectfully
differ from the court a quo) that in those cases in which the
validity of an administrative act may be challenged collaterally a
court has no discretion to
allow or disallow the raising of that
defence: The right to challenge the validity of an administrative act
collaterally arises
because the validity of the administrative act
constitutes the essential prerequisite for the legal force of the
action that follows
and ex hypothesi the subject may not then
be precluded from challenging its validity. On the other hand, a
court that is asked to set aside an invalid
administrative act in
proceedings for judicial review has a discretion whether to grant or
to withhold the remedy.’

 

[23]      
In casu, Pine Glow maintains that the Controller’s decision was
coercive upon it
because it resulted in the approval of the
applications, where the applications should have been disposed of in
the appeal before
the Minister without it becoming the recipient of
an invalid referral back to the Controller. Insofar as it is
adversely affected
by the Controller acting on the Minister’s
referral when considering the applications afresh, the legal impetus
for that
being the Minister’s decision, the legality of the
Minister’s decision has significance, because without it, the
remittal
would not have served before the Controller.

 

[24]      
But
coercion apart, in the words of Oudekraal:[16]

‘It
will be apparent from that analysis that the substantive validity or
invalidity of an administrative act will seldom have relevance
in
isolation of the consequences that it is said to have produced – the
validity of the administrative act might be relevant in
relation to
some consequences, or even in relation to some persons, and not in
relation to others – and for that reason it will
generally be
inappropriate for a court to pronounce by way of declaration upon the
validity or invalidity of such an act in isolation
of particular
consequences that are said to have been produced.’

 

[25]      
The validity of the Controller’s decision and the consequences
it produced, depends
on the validity of the Minister’s
decision. Even in the absence of formal relief being claimed against
the Minister for the
review and setting aside of his decision,
considerations of legality and the rule of law render it necessary to
consider the extent
of the Minister’s powers.

 

[26]      
The factual position is however a peculiar one, and an irregular
review should not be introduced
via the back door, where the Minister
had effectively been informed that no further relief would be claimed
against him. This makes
it all the more important to ensure that the
Minister must have had an adequate opportunity to be heard on the
relief claimed,
insofar as it may affect him or impact on his powers.
That is what the application of the audi alteram partem rule
requires.      

 

[27]      
Hence in
Merafong
City Local Municipality v AngloGold Ashanti Limited
(Merafong)[17]
a collateral challenge to administrative action was raised.[18]
But significantly, the Constitutional Court did not decide the
challenge raised but referred the validity of the Minister’s

decision for separate determination in a separate substantive review
in the Gauteng Division of the High Court against the Minister,[19]
where the Minister could be heard on the issue of the extent of his
or her administrative powers.

 

[28]      
A court
should not permit a challenge to the powers of an administrator
unless the administrator had been afforded an opportunity
to be heard
on whether he or she acted illegally, or unless the administrator was
afforded an adequate opportunity to be heard
and declined that
opportunity. As was stated in City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd:[20]

‘It
is in general imperative that a party affected by a ruling should be
joined in those proceedings. This is particularly so when
the
constitutional validity of a ministerial act is at issue.’

Whether
there was an adequate opportunity for the administrator to be heard
is largely a factual enquiry.

 

[29]      
In casu, the initial notice of motion cited the Minister, and
expressly provided for the
Minister’s decision to be reviewed
and set aside. This was claimed on the basis that he acted beyond his
powers in s 12A.
After the notice of motion was amended, no relief
was being claimed against the Minister, although he still remained
cited as a
party to the application. The effect thereof was that the
Minister did not participate in the proceedings before the court of
first
instance, the full court, or this Court, and perhaps
understandably so, because no specific relief was claimed against
him. Indeed,
further participation in the review by the Minister was
discouraged by costs being sought against such further respondents as
may
oppose the application.

 

[30]      
However, being still cited as the first respondent, he had all the
rights of a party to
the review and could participate and oppose the
relief. He would know that an order was still sought reviewing the
Controller’s
decision and that this was sought on the basis,
set out in the founding affidavit, that Pine Glow contended that the
decision to
refer the applications back to the Controller for
re-evaluation of the applications, was illegal, as being beyond the
Minister’s
powers. That was sufficient to convey to the
Minister that the relief persisted with involved a determination of
the extent of
his powers in terms of s 12A on appeal, and that he was
required to place any submissions which could impact on the claimed
invalidity
of the Controller’s decision and hence the challenge
raised, before the court of first instance.

 

[31]      
The
Minister did not avail himself of that opportunity. The Controller
did not oppose the relief claimed against him either. The
Minister
would only have himself to blame if this Court was to find that he
had acted illegally. The conclusion reached in this
appeal regarding
the Minister’s powers, however, happens to coincide with the
contentions of the Minister. It is therefore
unnecessary to examine
the doctrine of collateral challenge and whether it finds application
further[21] because Pine
Glow’s prospects of reversing the judgment of the full court
are non-existent.

 

[32]      
Of course, if I am wrong in reaching the conclusions above, and it
was to be found that
the notice to the Minister was insufficient,
then the appeal should for that reason alone be refused. The enquiry
into the extent
of the powers of the Minister would then, at this
stage, be irrelevant and irregular.

 

[33]      
Turning then to an examination of the Minister’s powers in s
12A. The extent of the
powers which would constitute the legal basis
for either the Minister’s decision, or the Controller’s
decision, particularly
the direction that the licence applications
were to be re-evaluated, depends on an interpretation of the relevant
provisions of
the Act. These provisions are quoted below.

 

[34]      
The long title of the Act provides inter alia that it provides ‘.
. . for the licensing
of persons involved in the manufacturing and
sale of certain petroleum products . . . to provide for matters
incidental thereto’.

 

[35]      
Section 3 provides:

‘(2)     
Subject to the provisions of this Act, the Controller of Petroleum
Products, a regional controller
of petroleum products and an
inspector –

(a)  
may assist the Minister in the exercise
of his powers and the performance of his functions under this Act;

(b)  
. . .

(3)      
The Minister shall, subject to the provisions of this Act, determine
the powers, duties
and functions of the Controller of Petroleum
Products, a regional controller of petroleum products and an
inspector, and different
powers, duties and functions may thus be
determined in respect of different persons or categories of persons
appointed or authorised
under subsection (1).’

 

[36]      
Section 12A provides

‘Appeal
–

(1)      
Any person directly affected by a decision of the Controller of
Petroleum Products may,
notwithstanding any other rights that such a
person may have, appeal to the Minister against such decision.

(2)      
An appeal in terms of paragraph (a) shall be lodged within 60
days after such decision has been made known to the affected person
and shall be accompanied by –

(a)  
A written explanation setting out the
nature of the appeal;

(b)  
Any documentary evidence upon which the
appeal is based.

(3)      
The Minister shall consider the appeal, and shall give his or her
decision thereon, together
with written reasons therefor, within the
period specified in the regulations.’

 

[37]      
The only
regulation relevant to the s 12A appeal process is regulation 33
which provides that the period contemplated in s 12A(3)
for the
Minister to give his decision is 90 days.[22]
The General Guidelines for the Submission of Internal Appeals to the
Minister in terms of s 12A[23]
prescribe time limits for various steps in the appeal process, but do
not proscribe the powers of the Minister in any way. They
simply
provide in regulation 4.6 that ‘[t]hereafter, the appeal will
be considered, and the Minister will make a decision
on the appeal’.
It is correctly accepted by the parties that the internal appeal
contemplated is an appeal in the wide sense.[24]

 

[38]      
The court of first instance relied on s 3(2)(a)
to find that the Minister could remit
the matter back to the Controller, as the Controller would then
assist the Minister, but the
decision would be that of the Minister.
In terms of s 3(2)(a),
the Controller may assist the Minister with the exercise of his
powers and the performance of his duties, but such assistance
is
rendered specifically in respect of the Minister’s exercise of
those powers.  The Minister does not issue retail
and site
licences. That is the preserve of the Controller. The decision
whether to issue a licence is a polycentric decision involving

particular skills and knowledge. It is best entrusted to a specialist
administrator like the Controller. There is no basis to conclude
that
what the Minister referred back to the Controller to consider and
decide, would become or be part of a decision of the Minister.
In
fact, the converse is the case.

 

[39]      
The Minister’s powers in s 12A(3) are wide
and not circumscribed in any way. The internal appeal does not only
lie against
the approval or disapproval of a licence, but at the
instance of ‘[a]ny person’ who might be ‘directly
affected
by a decision of the Controller’. The Minister’s
powers when considering the appeal are also not confined to only
either
upholding or dismissing the appeal. Section 12A(3) does
not limit the powers of the Minister.

 

[40]      
Section 12A simply contains four requirements:
first, the Minister has to consider the appeal; second, he must
decide the appeal;
third, he must give written reasons for his
decision; and fourth, he must deliver his decision within the time
prescribed. The
Minister complied in all these respects.

 

[41]      
Section 12A is silent on the granting of licences when an appeal
against a refusal to issue
licences is upheld. The Minister cannot
issue licences. Only the Controller may do so. Thus, where an appeal
against the refusal
of a licence is upheld by the Minister, the
decision would have to include some direction that the Controller
should issue the
particular licences. The power to include such
direction is not expressly provided for in s 12A(3) but must
necessarily be implied.
It is difficult to conceive why a direction,
issued by the Minister that the Controller should re-evaluate an
application in the
light of additional information which had come to
light and which had not been considered by the Controller initially,
would be
any different. Such a direction is necessarily implied as an
essential part of the Minister deciding the appeal. It gives
practical
effect to the Minister’s reasons.  

 

[42]      
Pine Glow’s argument is that because the appeal contemplated by
s 12A is one in the
wide sense where the Minister can have regard to
whatever additional information he may consider appropriate to decide
the appeal,
that the Minister is the only one to decide the fate of
the applications, even if it means having to call on the Controller
to
place his view on the impact of the additional documents before
the Minister. But having considered the appeal, as the Minister
was
obliged to do and did, there is nothing which precludes him in
deciding the appeal and in the exercise of his discretion in
the wide
sense, inherent in the decision making process, and having regard to
the object of the Act, his responsibilities, the
obligations of the
Controller, and the interest of the general public, from remitting
the applications for re-evaluation.  

 

[43]      
The grant of retail and site licences involves specialised skills of
officials involved
in those processes and who have acquired such
expertise through the exposure to what should inform such decisions,
on a continuous
basis. These decisions are almost invariably policy
laden and polycentric. The full-time officials dealing with these
policies
are best suited to make these decisions. They are employed
by the Controller. They are able to undertake further investigations,

collate these meaningfully, and assess the impact thereof. An appeal
tribunal, like the Minister in s 12A, can only benefit considerably

from having the investigative background, which should have preceded
any decision on the licences, taking into account all relevant

information and documentation, collated, analysed, examined and
assessed for the purpose of the Controller deciding whether a
particular licence should be granted or refused. That will result in
the Minister having the benefit of the considered result of
such a
distilling process, should any appeal be pursued thereafter.

 

[44]      
Not only does the above conclusion mean that the remittal to the
Controller for re-evaluation
was within the powers of the Minister,
but it also emphasises that the subject matter of what was referred
back, was not the evidential
material which previously served before
the Controller and on which the licences were refused. The material
to be considered in
the re-evaluation was as different from what
previously served before the Controller, as entirely new applications
based on the
original material amplified by the further information
and documentation would call for a fresh determination of the
applications
by the Controller.

 

[45]      
The remittal did not entail the Controller making a new determination
on the same material
which he had considered previously. The
Controller would therefore not be functus officio. The
Minister, having regard to the purposes of the Act, simply expedited
the process of properly deciding the respondents’
licence
applications, to avoid the further delays which might occur if fresh
applications were to be commenced, to save costs by
avoiding much
investigative work which had already been done, and to arrive more
speedily at a properly informed determination.
The re-evaluation
further was reached, not in response to any illegality, but as the
result of a proper mandate to the Controller,
which he was obligated
to perform.  

 

[46]      
Pine
Glow contends that any argument that because s 12A does not prohibit
the Minister from remitting the applications back to the
Controller
for reconsideration, it was competent for him to do so, flies in the
face of authorities such as Principal
Immigration Officer v Medh (Medh)[25]
and
Compcare
Wellness Medical Scheme v Registrar of Medical Schemes and Others
(Compcare).[26]
Generalised
comparisons are however unhelpful. Every case must depend on its own
facts and on a proper interpretation of the statutory
power granted
to the administrator.

 

[47]      
In Medh
the power granted was to either exempt a person from a class of
prohibited immigrants or not. There was no intermediate option
of
attaching a condition of domicile. The enquiry was confined to
whether an exemption should be granted, or not. In casu, the
Minister
had to decide the appeal, not decide between options. His discretion
and powers were not fettered in any way.

 

[48]      
In Compcare it
was found that the provision empowered the Board to either approve a
name change of a medical scheme or not, but not to add conditions.

Significantly, the learned judge held, unlike the position in the
present appeal, that ‘I can see no possible basis for somehow

implying [that power] in the section’. In this appeal, there is
a basis to imply such a power.

 

[49]      
The powers of the Minister are contained in s 12A,
but they will include powers necessarily implied. There is no reason,
on a proper
interpretation of s 12A, and having regard to the text
thereof, in the context of the Act, and having regard to the purpose
of
the Act, why the Minister in serving an effective role as an
internal appeal adjudicator, could not direct that the site and
retail
licence applications be remitted to the Controller for
re-evaluation.  

 

[50]      
That
power is necessarily implied to give effect to the purpose of the Act
as recorded in its long title. It is permitted by law,[27]
as
much as it is not prohibited or precluded. It is furthermore not a
function beyond that necessarily conferred in our constitutional

order.[28]

 

[51]      
The
mere fact that a statutory provision in a related statute, s 96 of
the Mineral and Petroleum Resources Development Act (MPRDA),[29]
in
regulation 74(13)(b)
of the Mineral and Petroleum Regulations[30]
accords
to the same Minister the power to ‘set aside the administrative
decision concerned with or without directions’,
might place the
power to remit a decision in the context of that statute beyond
doubt. But it does not per
se
mean that absent such an express conferral of the power, it is not
competent for the Minister to remit in the context of s 12A.

 

[52]      
Section
12A(3) provides in the most general of terms that the Minister shall
consider the appeal and shall give his ‘decision
thereon’.
That is without any restriction on what the decision might be.[31]
It
does not follow that because a power to refer the decision back was
not conferred expressly, that it would not be competent as
part of
‘the decision thereon’ which the Minister may reach. The
MPRDA, like the other statutes referred to above are
not in
pari materia
(not the same).

 

[53]      
It
is not insignificant, although the point apparently did not
specifically arise for decision thus rendering its precedential value

limited, that in Total
Brite Star Service Station CC v ENSPA Trading Company (Pty) Limited
and Others[32]
the
Minister had set aside the decisions of the Controller and remitted
the decisions to the Controller, without demur from the
parties or
any interested person, and the decision following on the remittal was
thereafter taken on appeal again to the Minister.        

 

The failure to
exhaust the internal remedy of an appeal in respect of the
Controller’s decision

[54]      
At the outset of this discussion, it is necessary to deal with a
preliminary procedural
issue raised by Pine Glow. The court of first
instance did not deal with the respondents’ argument that Pine
Glow failed
to exhaust the internal remedy of an
appeal in respect of the Controller’s decision to grant the
licences. The full court however
dismissed the appeal against the
order of the court of first instance primarily on the basis that Pine
Glow had not exhausted such
remedy. Pine Glow maintained that the
full court erred in basing its judgment on the failure to exhaust the
internal remedy, because
there was no cross appeal against the order
of the court of first instance for not having relied on that defence.

 

[55]      
This
submission is without merit. An appeal lies against the order of a
court, not the reasons for arriving at that order.[33]
If the order of the court of first instance was, in the view of the
full court, the correct order but on a legal basis not considered
by
the court of first instance, nothing precluded the full court from
relying on such ground to justify its refusal to interfere
with the
order of the court of first instance.

 

[56]      
Turning then to the merits of this defence, the
Controller’s decision regarding what was referred back to him,
constituted
separate and distinct administrative action. As separate
administrative action, any party aggrieved by the decision, such as
Pine
Glow, could appeal to the Minister, as provided in terms of s
12A. The merits of such an appeal would depend on the new body of

evidence and reports on which the Controller’s decision
approving the licences would be based. The grounds of appeal could

also include any alleged unfair treatment of Pine Glow by the
Controller, or bias on the part of the Controller.

 

[57]      
Section
7(2)[34]
of
the PAJA requires that no court shall review administrative action in
terms of that Act unless any internal remedy provided had
first been
exhausted. If a court is not satisfied that an internal remedy has
been exhausted, it must direct that the person concerned
must first
exhaust such remedy before instituting proceedings for judicial
review.

 

[58]      
An appeal to the Minister in terms of s 12A would
be an adequate remedy. Pine Glow has not contended that it is not.
Pine Glow however
failed to invoke that remedy. This is not simply a
technical defence. Internal appeals carry distinct benefits in an
administrative
context. It has been said that:

‘Internal
remedies are designed to provide immediate and cost-effective relief,
giving the executive the opportunity to utilise its
own mechanism,
rectifying irregularities first, before aggrieved parties resort to
litigation. Although courts play a vital role
in providing litigants
with access to justice, the importance of more readily available and
cost-effective internal remedies cannot
be gainsaid. First,
approaching a court before the higher administrative body is given
the opportunity to exhaust its own existing
mechanisms undermines the
autonomy of the administrative process. It renders the judicial
process premature, effectively usurping
the executive role and
function. The scope of administrative action extends over a wide
range of circumstances, and the crafting
of specialist administrative
procedures suited to the particular administrative action in question
enhances procedural fairness
as enshrined in our Constitution. Courts
have often emphasised that what constitutes a “fair”
procedure will depend
on the nature of the administrative action in
the circumstances of the
particular
case. Thus, the need to allow executive agencies to utilise their own
fair procedures is crucial in administrative action.’[35]
 

 

[59]      
Pine Glow’s failure to appeal the Controller’s decision
to the Minister is
accordingly fatal to its prospects of success in
the review. That is unless it was exempted from having to first
exhaust such remedy.

  

Exemption
from exhausting internal remedies

[60]      
A
court may in exceptional circumstances and on application by the
person concerned, in terms of s 7(2)(c)
of the PAJA, exempt such person from the obligation to exhaust any
internal remedy if deemed in the interest of justice.[36]
The
position was explained as follows in Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Co
Ltd:[37]

‘The
exemption is granted by a court, on application by the aggrieved
party. For an application for an exemption to succeed, the
applicant
must establish “exceptional circumstances”. Once such
circumstances are established, it is within the discretion
of the
court to grant an exemption. Absent an exemption, the applicant is
obliged to exhaust internal remedies before instituting
an
application for review. A review application that is launched before
exhausting internal remedies is taken to be premature and
the court
to which it is brought is precluded from reviewing the challenged
administrative action until the domestic remedies are
exhausted or
unless an exemption is granted. Differently put, the duty to exhaust
internal remedies defers the exercise of the
court’s review
jurisdiction for as long as the duty is not discharged.’

 

[61]      
The
person seeking exemption must satisfy the court: first, that there
are exceptional circumstances, and second, that it is in the
interest
of justice that the exemption be given.[38]
To
insist on an internal remedy first having to be exhausted, is not
simply a technicality. There are very sound reasons for doing
so.

 

[62]      
As
explained in Koyabe
and Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as Amicus Curiae):[39]

‘Internal
administrative remedies may require specialised knowledge which may
be of a technical and/or practical nature. The same
hold true for
fact-intensive cases where administrators have easier access to the
relevant facts and information. Judicial review
can only benefit from
a full record of an internal adjudication, particularly in the light
of the fact that reviewing courts do
not ordinarily engage in
fact-finding and hence require a fully developed factual record.

The duty to exhaust
internal remedies is therefore a valuable and necessary requirement
of our law. However, that requirement should
not be rigidly imposed.
Nor should it be used by administrators to frustrate the efforts of
an aggrieved person or to shield the
administrative process from
judicial scrutiny. PAJA recognises this need for flexibility,
acknowledging in section 7(2)(c) that exceptional
circumstances may require that a court condone non-exhaustion of the
internal process and proceed with judicial
review nonetheless. Under
section 7(2) of PAJA, the requirement that an individual exhaust
internal remedies is therefore not absolute.

What constitutes
exceptional circumstances depends on the facts and circumstances of
the case and the nature of the administrative
action at issue. Thus,
where an internal remedy would not be effective and/or where its
pursuit would be futile, a court may permit
a litigant to approach
the court directly. So too where an internal appellate tribunal has
developed a rigid policy which renders
exhaustion futile.’

 

[63]      
As
to whether there are exceptional circumstances will depend on the
facts and circumstances of each case. Generally, factors taken
into
account in deciding whether exceptional circumstances exist, are
whether the internal remedy is effective, available and adequate.
An
internal remedy is effective if it offers a prospect of success and
can be objectively implemented taking into account relevant

principles and values of administrative justice present in the
Constitution and our law. It is available if it can be pursued
without any obstruction, whether systemic or arising from unwarranted
administrative conduct. It is adequate if it is capable of
redeeming
the complaint.[40]
Such
an application to be exempted from the provisions of PAJA is
compulsory.[41]

 

[64]      
The aspect of an exemption was dealt with casually
by Pine Glow. It simply, almost in passing, asked the court of first
instance
to condone its failure to appeal the Controller’s
revisitation of the decision, submitting that: it was advised and
accepted
that the respondent’s appeal in terms of s 12A in
respect of the refusal of the licences exhausted the internal
remedies
available to the parties; the Minister, having made his
decision, was also functus officio;
the Minister is not empowered by the Act to make a second decision on
appeal regarding the same licence applications; it would
be an
exercise in futility for the parties to repeatedly appeal decisions
of the Controller related to the same set of applications;
and that
the court is properly vested with the authority to entertain the
review application.

 

[65]      
There is no merit in these considerations. They
are certainly not exceptional. They simply indicate that Pine Glow
was misdirected.
That is inherent in the litigation process and
cannot per se
constitute exceptional circumstances. Pine Glow was directly affected
by the decision of the Controller and dissatisfied with its
decision.
As a person aggrieved by the Controller’s decision it was
required first to exhaust its internal remedy under s
12A by an
appeal to the Minister. It failed to do so and it failed to apply to
be exempted. As a result the appeal stands to be
dismissed.

 

Alternative
grounds           

[66]      
The alternative grounds of appeal, namely that the
Controller’s decision was allegedly procedurally unfair or that
he was
allegedly biased, should have formed the subject of the
internal appeal. They will therefore not be considered further in
much
detail in this judgment.

 

[67]      
If
it was to be found that these alternative grounds should have been
determined by this Court, then I simply record that: material

disputes of fact exist as to whether the procedure adopted by the
Controller was unfair and whether the Controller was biased;
the rule
in Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd[42]
therefore
finds application; the version of the respondent accordingly prevails
in respect of any material factual disputes.

 

[68]      
Pine Glow maintains that it was unaware of
what transpired with the reconsideration by the Controller until, on
26 November 2020,
it came to its knowledge that construction
activities had commenced on the site and it was notified by the
respondents’ attorney
on 7 December 2020, that the site and
retail licences had been issued by the Controller. This is disputed.
The respondents allege
that subsequent to the Minister’s
decision being conveyed to the parties, Pine Glow, on 5 February
2020, addressed a letter
to the Minister alleging that the Minister’s
decision constituted a failure to take a decision, demanded that the
Minister
provide reasons, and claiming that the Controller was now
functus officio.

 

[69]      
Pine Glow failed to challenge the decision
of the Minister. It did nothing further. It was aware that in the
absence of the Minister’s
decision being challenged, the
Controller would act on such decision and re-evaluate the
applications taking into account the new
information. The Controller
requested further information from competing filling stations before
deciding the applications. This
included Pine Glow, trading as
‘Caltex Mpumalanga North Marketer’, which responded and
supplied information. After
a site inspection and volume data being
requested, Pine Glow made further representations to the Controller.
The respondents made
no further representations and did not submit
any further documents in addition to what had previously been
submitted to the Minister
as part of the appeal. On 12 November 2020
the Controller issued the licences.

 

Conclusion

[70]      
Pine Glow has not established any
circumstances, leave aside special circumstances, why the appeal
should succeed. The appeal accordingly
falls to be dismissed.

 

Costs

[71]      
The respondents have been successful. There
is no reason why they should not be entitled to their costs of the
appeal. The respondents
were represented before this Court by two
counsel and Pine Glow by four counsel. It is appropriate and fair
that the costs of two
counsel be allowed.    

 

Order

[72]      
The following order is granted:

1       
The appeal is dismissed.

2       
The appellant is directed to pay the third and fourth respondents’
costs of the
appeal, such costs to include the costs of two counsel
where so employed.

 

 

P
A KOEN

JUDGE
OF APPEAL

 

Appearances

For the appellant:	M C Erasmus SC (with him E Bloem, D J Van Heerden and E Ngantweni)
Instructed by:	Doyer & Doyer Attorneys, Mbombela
	Symington De Kok Attorneys, Bloemfontein
For the third and fourth respondents:	J A Venter (with him N Satekge)
Instructed by:	A Kock & Associates, Mbombela
	Honey Attorneys, Bloemfontein.

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