IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: 13364/2012

In the matter between:

and

JUDGMENT: 28 JANUARY 2013

GAMBLE, J:
[1] On 3 February 2012 the Applicant (acting on behalf the company yet to

[3] Before it would consider approval of the Applicant BP required him to complete an application form, submit a business plan, pay the requisite fee and to participate in a screening interview and assessment process by an outside party. This the Applicant did.

[5] On 13 April 2012 BP’s attorneys applied on behalf of their client and pointed out that the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”) was not applicable because their client was a private company whose decision to refuse the Applicant’s application did not constitute administrative action. They refused to furnish any reasons for their decision but went on to indicate that they had selected another candidate who had scored better in the evaluation process.

[7] Quite undeterred by this initial set-back the Applicant’s attorneys brought
this application some two months later under case no. 13364/2012. The application was brought in the long form with truncated time periods. The relief sought, aside from condonation for abridging the rules, was far ranging and lengthy:
“
(3) Interdicting and preventing the Second Respondent from entering into any further agreements with any third party pending the finalization of this matter.

(8) In the event that such a licence has been granted an order suspending the said licence pending the outcome of this matter and any subsequent action to be filed.

10.1. Confirming the agreement between the Applicant and the Second Respondent, as valid and binding between the parties.
10.2. Setting aside the decision of the First Respondent to allocate the BP Prince George Drive site to a third party.

10.4. Costs of this application only in the event that it is opposed.
10.5. Further and/or Alternative relief. ”
[8] When the matter came before Binns-Ward J in the Motion Court on 22 August 2012 the learned Judge also struck the matter from the roll with a similar costs order. On 18 October 2012 the matter was enrolled again before the Judge President who granted an agreed order setting out a timetable for the further exchange of affidavits and referring the application for hearing on the semi-urgent roll on 26 November 2012.
[9] In my view the matter was, at the end of November 2012, singularly lacking in any urgency, particularly given the allegation by BP in the opposing papers that the business had been allocated to an unidentified third party which was then running the service station. The matter warranted being struck from the roll a third time due to lack of urgency.
[10] In addition, given the nature of the relief being sought in the notice of motion, the non-joinder of the current operator of business is also a fatal defect in the Applicant’s case which warrants the removal of the matter from the roll.

[12] In the founding affidavit the Applicant formulated his cause of action as follows

“

“F”.

[13] In para 29 it is further submitted that:
“

29.3...First Respondent’s submission that this decision is purely a ‘commercial one’ and not also an administrative one rings hollow. It is submitted that the Applicant is entitled to have access to, consider, and if necessarily (sic), review the decision making process of the First Respondent”. ”

[16] BP also dealt with the erroneous reference to PAIA and contended, for similar reasons, that that Act did not apply to a request for reasons for an administrative decision, but to the procurement of particular documents.

[17] In the replying affidavit the Applicant managed to get the reference to PAIA correct and he went on to firmly pin his colours to that mast. Any reliance on PAJA was unequivocally jettisoned by the Applicant. The cause of action was PAIA, notwithstanding the fact that the Applicant had not issued a request under either Sections 18 or 53 of PAIA, or otherwise complied with the provisions of Section 78 of that Act.

[20] At some stage the argument even drifted into the realm of misrepresentation, but there too the argument went nowhere quickly.

[22] The argument, convoluted as it was, came down to this. BP should have been satisfied with the Applicant as the new franchisee at the Prince George Drive Service Station (notwithstanding that a competing purchaser had scored better in its internal assessment procedure) and its failure to so approve the Applicant effectively constituted a breach of the agreement upon which BP could not later rely on when challenged by the Applicant that it should have made a determination in his favour.

“In my judgment in that case I said:

casual condition, then if the person in whose interest it is
that it should not be fulfilled deliberately does some act by which he hinders the accomplishment of the condition, he is liable as if the condition had been fulfilled. But a party cannot be said to frustrate a condition unless he actively does something by which he hinders its performance. There must be an intention on his part to prevent his obligation coming into force. ’...In other words if it is the fault of the person in whose favour a condition is inserted that the condition cannot be fulfilled, or if he intended to prevent the condition from being fulfilled, the law considers the condition to have been fulfilled as against him. The nature of the contract is always an important element. In some cases the person benefited by the non-performance of the condition can sit still and do nothing to assist in its fulfillment; in other cases it is his legal duty to assist in the condition being fulfilled, and in all cases if he deliberately and in bad faith prevents the fulfillment of the condition in order to escape the consequences of the contract, the law will consider the unfulfilled condition to have been fulfilled as against the person guilty of bad faith. ”

“The principle may be stated thus: Where a party to a contract, in breach of his duty, prevents the fulfillment of a condition upon the happening of which he would become bound in obligation and does so with the intention of frustrating it, the unfulfilled condition will be deemed to have been fulfilled against him. ”

[27] Perusal of the Applicant’s founding papers contain, amongst a veritable hodge-podge of poorly drafted and conceptualized allegations, a fleeting reference to the doctrine of fictional fulfillment:
“13. I submit that two preliminary observations are pertinent when one considers these conditions precedent,

verb in the circumstances) was on PAJA and administrative review as a cause of action. And notwithstanding the promise made at the conclusion of para 13 thereof, the relevance of the promised submission never saw the light of day. Most certainly, however, the founding affidavit made out no case for the application of the doctrine of fictional fulfillment, given that the act of frustration of fulfillment would ordinarily have to have come from the Second Respondent and not BP.

“An order is asked for that he pay the costs as between attorney and client. Now sometimes such an order is given because of something in the conduct of a party which the Court considers should be punished, malice, misleading the Court and things like that, but I think the order may also be granted without any reflection upon the party where the proceedings of vexatious, and by vexatious I mean where they have the effect of being vexatious, although the intent may not have been that they should be vexatious. There are people who enter into litigation with the most upright purpose and a most firm belief in the justice of their cause, and yet whose proceedings may be regarded as vexatious when they put the other side to unnecessary trouble and expense which the other side ought not to bear. ”

A. The application is dismissed with costs on the scale as between attorney and own client.

P.A.L. GAMBLE