Lepelle Industrial and Mining Supplies CC v Streaks Ahead Investments (Pty) Ltd and Others

Lepelle Industrial and Mining Supplies CC (Lepelle) operated a fuel filling station (Impala Service Station) in Phalaborwa, Limpopo. Streaks Ahead Investments (Pty) Ltd purchased land from Ba-Phalaborwa Local Municipality in 2008, obtained environmental authorization and rezoning for a shopping complex and fuel filling station. The property was later sold to Erf 344 Ontwikkeling (Pty) Ltd in February 2013. A site licence was issued to Streaks Ahead by the Controller of Petroleum Products and a retail licence to Boroka Filling Station CC in July 2013. Lepelle appealed against these licences, arguing that the site licence was invalid because it was issued to Streaks Ahead when Erf 344 was the registered owner. Construction of the filling station was completed and Boroka commenced trading in May 2014. Lepelle launched an application in October 2014 seeking a temporary interdict restraining respondents from constructing the filling station and trading in petroleum products pending an internal appeal and review proceedings. The application was heard only in November 2016, during which time Boroka continued trading. The Minister dismissed Lepelle's internal appeal in August 2015 and directed the Controller to address the contravention. The Controller issued a notice of intention to cancel the licences, but ultimately transferred the site licence from Streaks Ahead to Erf 344. Lepelle did not challenge this subsequent administrative action.

• Whether the high court order granting a temporary interdict was appealable
• Whether an interdict prohibiting construction of a filling station was competent when construction had already been completed
• Whether the temporary interdict prohibiting trading in petroleum products should be set aside where significant time had elapsed and the balance of convenience no longer favoured the applicant
• Whether an invalid site licence issued to one party automatically vitiates a retail licence issued to another party
• Whether subsequent unchallenged administrative action authorizing the continued operation of the filling station provided a lawful basis for Boroka to continue trading
• Whether punitive costs should be awarded against a party whose litigation was vexatious in effect

The application for special leave to appeal was dismissed. Lepelle was ordered to pay the costs of Streaks Ahead and Boroka on the ordinary scale. Lepelle was ordered to pay the costs of Erf 344 on the scale as between attorney and client, including costs of two counsel.

Where a party seeks a temporary prohibitory interdict pending review of administrative action, but subsequent administrative action is taken that authorizes the very conduct sought to be prohibited, and that subsequent administrative action is not challenged and remains valid and binding, the applicant cannot establish unlawful conduct—the first requirement for a prohibitory interdict. Furthermore, where significant time has elapsed since the commencement of interdict proceedings, during which the respondent has continuously engaged in the activity sought to be prohibited, and the applicant has failed to prosecute the underlying review application, the balance of convenience cannot favour the granting of a temporary interdict even if other requisites are satisfied. An order prohibiting "further" construction lacks any factual or legal foundation and is not competent where construction has already been completed before the application was launched.

The court refrained from making definitive findings on the full court's analysis of the relationship between site licences and retail licences under the Petroleum Products Act 120 of 1977, and whether the invalidity of a site licence ipso facto results in the invalidity of a retail licence. The court noted that the full court was not required to reach this question given the narrow factual basis upon which the case could have been decided. The court also noted (without deciding) that it would assume the high court orders were appealable as found by the full court, though this point was not urged with conviction. The court observed that Lepelle elected not to pursue urgent relief, stating it felt the extent and difficulty of the application would not be properly dealt with in the urgent court, though it claimed to be suffering daily loss—a position that appeared inconsistent with the delays that followed.

This case illustrates important principles regarding temporary interdicts in administrative law matters: (1) courts will not grant prohibitory interdicts that lack factual foundation or are rendered moot by completed events; (2) subsequent unchallenged administrative action can supersede earlier administrative decisions that are under challenge; (3) the balance of convenience in interdict applications must be assessed in light of delays in prosecution and changed circumstances; (4) applicants must challenge all relevant administrative action that affects their case, not selectively attack only some decisions; (5) punitive costs may be awarded where litigation is vexatious in effect even without malicious intent, particularly where relief is sought without any reasonable factual or legal basis. The case also demonstrates the interrelationship between site licences and retail licences under the Petroleum Products Act, though the court ultimately declined to make definitive findings on this issue.