Highway Junction (Pty) Ltd and Others v Di-Thabeng Truck and Taxi (Pty) Ltd and Others

The first respondent, Di-Thabeng Truck and Taxi (Pty) Ltd (T&T), owned property zoned for agricultural use and truck parking. The Di-Thabeng entities (respondents 1-5), all controlled by Mr PJ du Toit (who died in July 2021), were trading in petroleum products from the property. T&T held a wholesale licence under the Petroleum Products Act 120 of 1977 (PPA) which required sales in bulk (defined as 1500 litres or more per transaction). T&T employed a system whereby customers paid for a minimum of 1500 litres but could collect the fuel in smaller quantities over time. The appellants (Highway Junction (Pty) Ltd, which operated a competing truck-stop and fuel facility; the Swinburne Home Owners Association; and Swinburne Store CC) contended this amounted to unlawful fuel retailing rather than permitted wholesaling, and also claimed various other contraventions including violations of NEMA, SPLUMA, the National Building Regulations, and the National Water Act. The appellants sought interdictory relief in the Free State High Court to stop these allegedly unlawful activities.

• Whether the High Court should grant multiple interdicts when one adequately protects the applicant's rights
• Whether an appeal against refusal to grant additional interdictory relief is moot when an overarching interdict has been granted
• Whether it is appropriate for an appeal court to interpret statutory provisions when the matter is moot and the issue affects parties not before the court
• The proper interpretation of 'per transaction' in regulations under the Petroleum Products Act 120 of 1977 (though not ultimately decided)
• The principles governing when a matter is moot and not justiciable

The cross-appeal was dismissed with no order as to costs.

Where an interdict adequately protects an applicant's rights, an appeal against the refusal to grant a further interdict on different grounds is moot and does not present a live controversy that should be decided by a court. A case is moot and not justiciable when it no longer presents an existing or live controversy. Courts should avoid giving advisory opinions on abstract propositions of law. When a party's rights are no longer threatened due to existing effective relief, it is not in the interests of justice for an appellate court to entertain an appeal seeking additional relief. An appellate court should exercise restraint in interpreting statutory provisions with wide-reaching implications when: (i) the matter is moot; (ii) the lower court made no clear finding on the issue; (iii) the appellate court would be deciding as both first and potentially last instance; (iv) parties with interests in the interpretation are not before the court; and (v) only interdictory (not declaratory) relief was sought.

The court observed that the High Court's judgment was not a model of clarity, particularly regarding the interpretation of 'per transaction' under the PPA regulations. The court noted that the proper approach to statutory interpretation should include evaluation of language, context and purpose (citing Natal Joint Municipal Pension Fund v Endumeni Municipality), which the High Court failed to articulate or apply. The court observed that the High Court appeared unable to fault the system employed by the Di-Thabeng entities but made no clear finding, instead merely stating that a bona fide dispute existed. The court commented that this fell short of a finding on whether the appellants had established a clear right. The court noted that the cross-appeal should properly have been made conditional on the main appeal proceeding, and that strictly speaking it should have been withdrawn once the main appeal lapsed. However, the court acknowledged the appellants could hardly be faulted for persisting given the unclear nature of the High Court's judgment. The court also observed that granting a declaration of rights is discretionary and would not be appropriate in these circumstances even if declaratory relief had been sought.

This case provides important guidance on the principles of mootness in South African law and the circumstances in which appellate courts will decline to decide issues that no longer present live controversies. It reinforces that courts will not give advisory opinions on abstract propositions of law when the relief sought is not necessary to protect the applicant's rights. The judgment demonstrates judicial economy and restraint - where one interdict adequately protects an applicant's rights, courts will not entertain appeals seeking additional interdicts on different grounds. It also illustrates that appellate courts will be cautious about interpreting statutory provisions with wide-reaching implications when: (a) the matter is moot; (b) the court would be deciding the issue as both first and potentially last instance; (c) affected parties are not before the court; and (d) the appropriate form of relief (declaratory order) has not been sought. The case applies and extends the principles from National Coalition for Gay and Lesbian Equality v Minister of Home Affairs regarding justiciability and Pheko v Ekurhuleni Metropolitan Municipality regarding when it is not in the interests of justice to grant leave to appeal when rights are adequately protected.