Free State firm sent packing amid lucrative fuel business lawsuit

In what is seen like a battle over the piece of the pie between two Free State commercial businesses, one company was sent packing after it went to court to complain about the alleged illegal trading of another. In a technicality, the firm lost its appeal because the judges said the “main appeal has lapsed”.

This means that Highway Junction and its associates, Swinburne Homeowners Association and Swinburne Store CC, stand to lose millions of rands they generated by trading in fuel in Harrismith, Free State.

Appeal dismissed

This comes after the Bloemfontein Supreme Court of Appeal dismissed the appeal lodged by Highway Junction and its associates regarding claims that Di Thabeng Truck and Taxi was unlawfully conducting business in Harrismith. This where truck drivers from various logistics corridors detour to the small town of Free State to refuel. The trucks are regions such as Kwazulu-Natal, Gauteng, Mpumalanga, Limpopo, including neighbouring countries.

In the judgement delivered two weeks ago, the court dismissed an application by Highway Junction to be granted a “cross appeal”. There was no basis for entering into whether a further clear right was established, it said in the application.

The matter before us is a cross-appeal where the main appeal has lapsed, wrote the judges.

A condition of title, which is recorded in the zoning certificate, also allows use as a place where trucks may be parked.

T&T and the second to fifth respondents (the Di-Thabeng entities) were all companies under the effective control of Mr PJ du Toit, until he died during July 2021.

Main appeal has lapsed

In the panel of five Supreme Court judges it was stated that the matter before the court was a cross-appeal. This means the main appeal has lapsed. The judges are Visvanathan Ponnan, Trevor Gorven, Anna Kgoele, Rishinand Seegobin and Raylene Keightley.

“The parties will be referred to as in the cross-appeal. The first respondent, Di-Thabeng Truck and Taxi (T&T) is the owner of immovable property described as Portion 5. This is portion 5 of the Farm Franshoek 1861, district of Harrismith, Free State Province (the property). The property is zoned agricultural.

“A condition of title also allows use as a place where trucks may be parked. This is recorded in the zoning certificate. T&T and the second to fifth respondents (the Di-Thabeng entities) were all companies under the effective control of Mr PJ du Toit. This was until he died in July 2021,” reads the court document.

According to the court document, the first appellant, Highway Junction, conducts the business of a truck stop where drivers can rest and a fuel retail facility known as “The Highway Junction”.

“In excess of 1,500 trucks pass through it per day. The second appellant, the Swinburne Home Owners Association (NPC), [represents] a housing development adjacent to the property. The third appellant, Swinburne Store CC, is the developer of the Swinburne Township on land adjoining the property.

Unlawfully constructing buildings

Highway Junction, alongside Swinburne Home Owners and Swinburne Store contended in the matter. They contended that the Di-Thabeng entities were engaged in unlawful activities on the property. This included the use of the property it owned, contrary to its approved zoning under the Town Planning Scheme.

Highway Junction also accused Di Thabeng entities of unlawfully constructing buildings. This was in contravention of the National Building Regulations and Building Standards Act.

The bone of contention between these companies is also about what Highway Junction claims is the illegal sale of fuel by Di Thabeng. The fuel is sold to truckers who detour to the truck depot.

“It is common cause that the Di-Thabeng entities were trading in petroleum products. They traded only from the property. As indicated, the property was zoned for agricultural use and the parking of trucks.

“As regards, T&T holds a wholesale licence under the Power Purchase Agreement  (PPA). Under the PPA and the relevant regulations, the wholesale licence entitles T&T to sell only in bulk (fuel wholesaling).

“The word ‘bulk’ is defined in the regulations as meaning ‘1,500 litres or more, per transaction of petroleum products’. The operative phrase is ‘per transaction’. The requirement of selling in bulk does not apply to the retail sale of fuel (fuel retailing),” reads the documents of Highway Junction in its cross appeal.

Transaction intervals of 1,500 litres

According to Highway Junction, the disputed system employed by T&T was to sell fuel in what it termed “transaction intervals” of 1,500 litres.

“The customer was required to pay for a minimum of 1,500 litres of fuel. But did not have to take immediate delivery of the full 1,500 litres. It was permitted to collect as and when it needed the fuel in quantities of less than 1,500 litres.

“So, for example, having paid for a minimum of 1,500 litres of fuel, the customer could collect 200 litres, then 300 litres. This would go on until the quantity is paid for had been collected. The real issue is whether the regulation envisages that a transaction comprises the simultaneous sale and delivery of a minimum of 1,500 litres of fuel. Or whether it comprises the sale of a minimum of 1,500 litres. This  without the need for contemporaneous delivery,” reads the court document.

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