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[2020] ZAGPJHC 101
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City of Johannesburg Metropolitan Municipality v Olympia Trade Centre (Pty) Limited and Another (2018/18147) [2020] ZAGPJHC 101 (15 April 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2018
/18147
In
the matter between:
THE
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
Applicant
and
OLYMPIA
TRADE CENTRE (PTY)
LIMITED
First
Respondent
BARRADAS,
BAP
Second
Respondent
JUDGMENT
SOUTHWOOD,
AJ:
A.
INTRODUCTION
1.
The applicant seeks to enforce what it
contends is a contravention of its outdoor advertising by-laws. The
following relief is sought
in the Notice of Motion:
1.1
a declarator that the erection of and/or
allowing and/or causing to allow the erection of a certain
advertising sign (‘
the sign
’
or ‘
board
’),
on erf 204, known as stand number 66, corner Kliprivier Road and Van
der Hoven Street, Glenanda, Johannesburg, Gauteng
(‘
the
property’
) is unlawful because it
contravenes and/or fails to comply with section 3 of the Outdoor
Advertising By-Laws of the applicant (‘
the
by-laws
’), in that the said
sign/board was erected by the respondents or their appointed agents
without the applicant’s prior
written approval;
1.2
a
declarator that the applicant’s prior approval was required
prior to the said erection of the sign and that failing such
approval, the erection was, a contravention of the by-laws and
therefore unlawful;
1.3
an order directing the respondents to
remove the said sign and restore the property to its original
‘
status
’
in which the property was prior to erecting the said sign, thereby
ceasing the unlawfulness complained of;
1.4
an order that the relief sought in terms of
prayers 1.1 to 1.3 in the notice of the motion be given effect to
within 30 days from
the date of the order, failing which, the Sheriff
of this court or his/her deputy, be authorised to carry out the court
order,
and to do whatever is legally and reasonably necessary and to
take all reasonable and lawful steps to carry out and give effect
to
such court order;
1.5
an order directing the respondents to pay
the costs of this application on the scale as between the attorney
and the client, jointly
and severally, the one paying and the other
to be absolved.
2.
On 2 November 2018, the applicant withdrew
the application against the second respondent.
3.
The applicant persisted with the relief
sought in the notice of motion.
4.
During the hearing, Ms
Martin
,
who appeared for the first respondent indicated that at the previous
hearing of this matter, the court had granted leave to the
parties to
file further affidavits in order to address the issue of whether
someone could obtain
ex post facto
consent for the erection or use of the sign.
5.
No such order is indicated in the court
file but Mr
Kela
who appeared for the applicant did not dispute this.
B.
BACKGROUND
6.
The first respondent is the owner of the
property. The sign is located on the property.
7.
The applicant’s complaint is that the
‘
the respondents in erecting the
advertising sign or board on the property owned by the first
respondent, contravenes or the effect
of contravening
(
sic
)
the applicant’s by-laws since the
said erection was effected without the applicant’s prior
consent in writing
.’
8.
The first respondent purchased the property
in or around 2014. The sign in question had already been erected by
the previous landowner,
albeit that it was smaller. The sign had been
on the property for a number of years. The applicant did not
allege when the
sign was erected. In or around 2015, the first
respondent extended the existing sign and made it larger. The
presence of the sign
is one of the reasons why the first respondent
bought the property. The first respondent derives a monthly rental
income through
the advertising sign.
C.
OBJECTIONS
IN
LIMINE
9.
In its answering affidavit, the first
respondent raised a number of objections
in
limine
, namely:
9.1
the incorrect citation of the court;
9.2
the misjoinder of the second respondent;
9.3
the inadmissibility of certain annexures;
9.4
a failure to establish that the by-laws
were in existence when the sign was erected.
10.
Save for the fourth objection, dealt with
as part of the argument on the merits, these objections were not
dealt with in argument.
D.
THE MERITS
11.
The relief sought is premised on the
erection of the sign by the respondents without the applicant’s
consent.
12.
Nowhere in the founding affidavit is the
relevant section in the by-law which has allegedly been contravened
referred to nor have
its provisions been reproduced. In the
notice of motion, prayer 1.1 refers to section 3 of the Outdoor
Advertising by-laws
as the relevant provision which has been
contravened.
13.
The by-laws are not attached to the
founding papers. This was a deliberate choice on the part of
the applicant. It deigned
to attach two sets of by-laws to its
replying affidavit.
14.
In paragraph 13 of the applicant’s
replying affidavit, the applicant’s deponent indicates that the
by-laws are those
attached to the replying affidavit as “COJ1”.
“COJ1” is not an extract from the Provincial Gazette but
a document entitled
Outdoor Advertising
By-Law, 2017
. As proof that these
by-laws had been adopted, the applicant attached “COJ2”.
“COJ2” is an extract from
the Provincial Gazette
Extraordinary, dated 18 December 2009, which evidences publication of
the Outdoor Advertising by-laws, 2007.
This is not proof that
the 2017 bylaws have been adopted.
15.
In the applicant’s heads of argument,
reference is made to the 2007 by-laws (instead of the 2017 by-laws)
and to sections
3 and 29 thereof.
16.
The respondents allege that they did not
erect the sign. This is not disputed. Despite this
undisputed fact, Mr
Kela
indicated that the applicant was still pursuing the relief sought in
the Notice of Motion (which seeks relief against the ‘
respondents
’
despite the application having been withdrawn against the second
respondent).
17.
Mr
Kela
argued
that the continued use of the sign or the failure to remove the sign
constituted the allowing of the erection of the sign
or causing the
erection to the sign to be allowed, without the necessary consent.
18.
In neither version of the by-laws is there
any reference to the allowing of the erection of a sign or causing
erection of a sign
to be allowed without the necessary consent.
19.
Furthermore, as a matter of fact, there is
no basis for concluding that the first respondent allowed the
erection of the sign or
caused the erection of the sign to be allowed
at the time it was erected. Given that the erection of the sign is an
historical
act i.e. not a continuing act, permission for or causing
the sign to be erected could only have occurred prior to or at the
time
that the sign was erected.
20.
Accordingly, I do not agree with Mr
Kela
’s
contention that the use of the sign thereafter constitutes the
ex
post facto
permission for or causing of
the erection of the sign.
21.
For all the reasons indicated above, the
relief sought in prayer 1.1 of the notice of motion must be refused.
22.
Insofar as prayer 1.2 is concerned, the
applicant failed to establish when the 2017 by-laws, which it relied
upon in its affidavits,
came into operation. Presumably, it was
on or after 2017. This is after the erection of the sign.
Accordingly,
there is no basis for granting the relief sought in
prayer 1.2 of the notice of motion.
23.
Even on a robust approach, taking the 2007
by-laws into consideration, there is no evidence to establish that
the sign was erected
during the time that the 2007 by-laws were in
operation.
24.
Prayer 1.3 is couched in the form of a
mandamus, i.e. an order requiring the first respondent to act.
25.
The applicant was required to establish a
clear right, a breach of the right (in the context of a mandatory
interdict) and the absence
of an alternative remedy.
26.
Mr
Kela
contends that the applicant has a clear
right in that the by-laws require the prior written consent of the
applicant for the alteration,
removal, re-erection or upgrading of an
advertising sign, other than for maintenance work.
27.
The first difficulty with this contention
is that the relief sought is directed at the erection of the sign and
not the alteration,
removal, re-erection or upgrading of the sign.
28.
The second difficulty with the contention
is that no right to the relief sought i.e. the removal of the sign,
is contemplated by
this contention.
29.
Furthermore, neither the application nor
the applicant’s heads of argument refer to any by-law in
the 2017 by-laws which
provides for the removal of the sign.
30.
In response to questions in this regard, Mr
Kela
referred
me to section 29(3) of the 2007 by-laws. Given that these were
not the by-laws relied upon by the applicant in its
papers, the
reference is irrelevant.
31.
In any event, section 29(3) of the 2007
by-laws reads as follows:
‘
If
an authorised official is of the opinion that an advertising sign
constitutes an imminent danger to any person or property,
he or
she may without serving a notice in terms of section (2), or if such
a notice has been served but not complied within the
period specified
therein, he or she may remove that advertising sign or take other
steps which he or she may consider necessary.
’
32.
The applicant would have had to establish
that the section was applicable. The applicant would have to
show that an authorised
official had formed the view that the
advertising sign constitutes an imminent danger to any person or
property.
33.
The applicant has, thus, failed to
establish a clear right to the relief sought. Simply on this
basis, no order should be
made.
34.
Insofar as a breach of any right is
concerned, in particular a contravention of any by-law, the relief
sought was based, in the
founding affidavit, on the erection by the
respondents of a sign without the applicant’s consent.
There being no dispute
that the respondents had not erected the sign,
the applicant has failed to establish a breach of the alleged right.
35.
In the applicant’s heads of argument,
reliance was placed on the fact that the respondents had alleged that
the respondents
had had the sign enlarged during 2015 without the
applicant’s prior approval which was a contravention of section
3(2) of
the by-laws, presumably the 2007 by-laws.
36.
This is not the applicant’s case in
the papers. Nor is the relief sought in prayer 1.3 premised on the
enlargement of the
sign without consent.
37.
It
is trite that an applicant in motion proceedings has to make out his
or her case in the founding affidavit unless there are special
circumstances why that has not been done.
[1]
A totally defective application cannot be rectified in reply.
[2]
38.
In the circumstances, the applicant has
failed to establish the contravention of any by-law.
ORDER
Accordingly,
I make the following order:
1
The relief sought in prayers 1.1 and 1.2 of
the notice of motion is refused.
2
No order is made in relation to the relief
sought in prayer 1.3 of the notice of motion.
3
The applicant is directed to pay the first
respondent’s costs of the application.
_________________________________
F
SOUTHWOOD
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances:
Date
of Hearing: 30 January 2020
Date
of Judgment: 15 April 2020
For
the Applicant: DZ Kela
Instructed
by: Tshiqi Zebediela Inc
For
the First Respondent: SJ Martin
Instructed
by: Dogulin Shapiro Dermatinis Inc.
[1]
NK v
KM
2019
(3) SA 571
(GJ) at [22]
[2]
Poseidon
Ships Agencies (Pty) Limited v African Coaling and Exporting Company
CO (Durban) (Pty) Limited and Another
1980 (1) SA 313
(D) at 315 H to 316A