In the case of Gensinger and Neave CC & Others v Minister of Mineral Resources and Energy, the Supreme Court of Appeal ("the SCA") made certain findings as to when an entity is affected by administrative decisions. The court further confirmed the general common law principle that administrative decisions are suspended until all appeals relating to the administrative decision are finalised.
Background
The appellants held retail licenses for the sale of petroleum products in the business district of Matatiele. In May 2019, another entity successfully applied for a retail license from the Controller of Petroleum ("the Controller") to sell petroleum products in Matatiele.
Aggrieved by the Controller's decision, the appellants objected to the issuance of the additional retail license but it was issued despite the objection. Further Aggrieved by this, the CC launched an appeal to the Minister of Mineral Resources and Energy ("the Minister") against the Controller's decision.
Notwithstanding the appeal, the Department of Mineral Resources and Energy saw no issue with the entity continuing to construct the filling station and commencing with retail activities pending the outcome of the appeal.
Legislative Framework
Section 12A of the Petroleum Products Act 120 of 1977 ("the Act") provides that "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 a decision".
Proceedings in the High Court
Before the High Court, the CC claimed an interim interdict pending the outcome of its appeal. The High Court found that the CC was not directly affected by the Controller's decision and therefore was not entitled to appeal the Controller's decision, resulting in a failed application by the CC.
The findings in the SCA
The SCA referred to the Constitutional Court judgment of Giant Concerts CC v Ronaldo Investments (Pty) Ltd and Others and found that in order for there to be a "direct effect", a litigant must show that they have a real interest in the administrative decision in question rather than a hypothetical or academic one.
The SCA quoted with approval the case of Pine Glow Investments (Pty) Ltd v Minister of Energy and Others and found that someone is "directly affected" by the Controller's decision, where they have an existing retail license in the area in which another entity is applying for permission to conduct business. This is so as the decision of the Controller to issue a retail license to another will have a financial impact on an aggrieved entity, due to the potential loss of revenue that an aggrieved party may suffer.
As such, the SCA found that the CC was “directly affected” by the Controller's decision and thus had a real interest in the subject matter rather than a hypothetical or academic one. The court therefore found that the CC had standing to lodge the appeal in terms of section 12A of the Act.
The SCA also confirmed the common law principle that where an administrative decision has been taken and an appeal lodged against that decision, the administrative decision is suspended by the appeal, until the appeal is finalised. The court held that where legislation does not provide that an administrative decision is not suspended by an appeal, an appeal suspends administrative decisions. In these circumstances, the court found that it was incorrect for the Department to ignore the appeal lodged by the CC.
The court therefore upheld the CC's appeal and remitted the back to the High Court for the High Court to determine the CC's application for an interim interdict.
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