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[2021] ZAGPJHC 514
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City of Johannesburg Metropolitan Municipality v Olympia Trade Centre (Pty) Limited (2018/18147) [2021] ZAGPJHC 514 (19 February 2021)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2018/18147
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
19/02/21
In
the matter between:
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Applicant
and
OLYMPIA
TRADE CENTRE (PTY)
LIMITED
Respondent
JUDGMENT
SOUTHWOOD, AJ:
A.
INTRODUCTION
1.
Two applications served before me, namely,
an application for leave to appeal and an application for condonation
for the late filing
of the application for leave to appeal.
2.
The main application which formed the
subject matter of the judgment against which leave to appeal is
sought, was directed at obtaining
the following relief:
2.1.
a declarator that the respondents, their
actions and/or activities are unlawful for erecting, and/or allowing
and/or causing to
be allowed, to be erected, a certain advertising
sign on erven [....], known as stand number 66, corner Kliprivier
Road and Van
der Hoven Street, Glenanda, Johannesburg, Gauteng (‘
the
property
’), for contravening
and/or failing to comply with section 3 of the Outdoor Advertising
By-laws of the applicant (‘
the
By-laws
’), in that the said sign
was erected by the respondents, or their appointed agents without the
applicant’s requisite
prior written approval;
2.2.
a declarator that the applicant’s
prior approval was required prior to the said erection and that
failing such approval, the
erection was, on that basis, in
contravention of the By-laws and therefore unlawful;
2.3.
that the respondents be ordered to remove
the said sign and restore the property to the state which the
property was in prior to
erecting the said sign, thereby ceasing the
unlawfulness complained of; and
2.4.
ancillary relief.
3.
This relief was persisted in against both
respondents even though the applicant had served a notice of
withdrawal of application
against the second respondent on 5 November
2018, which notice was delivered on 5 November 2018.
4.
On 15 April 2020, judgment was handed down
by emailing the judgment to the parties’ legal
representatives. In the judgment,
the following orders were
made:
4.1.
The relief sought in prayers 1.1 and 1.2 of
the notice of motion is refused.
4.2.
No order is made in relation to the relief
sought in prayer 1.3 of the notice of motion.
4.3.
The applicant is ordered to pay the first
respondent’s costs of the application.
B.
THE APPLICATION FOR CONDONATION
5.
Condonation
is not granted merely because it is sought. The court should exercise
its discretion judicially and upon sufficient
and satisfactory
grounds being shown. An applicant for condonation must give a
full explanation for the delay which must
not only cover the entire
period of the delay but must also be reasonable. A number of
other factors may be considered.
These include the prospects of
success, the importance of the case, the absence of prejudice to the
parties, the respondent's interest
in the finality of its judgment
and the convenience of the court.
[1]
6.
The application for leave to appeal was
served on the respondent on 9 July 2020 and, allegedly, filed on 14
July 2020. On 8 September
2020, the applicant’s attorney
uploaded the application for leave to appeal onto CaseLines.
The application for condonation
was served on the respondent on 28
July 2020. The application for condonation was also uploaded
onto CaseLines on 8 September
2020. I was invited to the
CaseLines case only on 15 January 2021. The uploading of the
main application onto CaseLines
was only completed on 29 January
2021.
7.
On 15 March 2020, a national state of
disaster was
declared,
and a country-wide
lockdown imposed in terms of the
Disaster Management Act 57 of 2002
.
8.
In terms of Rule 49(1)(b) of the Uniform
Rules of Court, the application for leave to appeal had to be made
within 15 days after
the date of the order i.e. by 6 May 2020.
9.
The application for leave to appeal is
forty-nine days late, a not negligible amount of time.
10.
The condonation application is supported
only by an affidavit deposed to by the applicant’s instructing
attorney. The application
was not opposed and so the facts alleged
are not in dispute.
11.
The explanation for the delay commences
with the applicant’s attorney indicating that because of
lockdown, he was unable to
attend at the firm’s offices from
the time that the lockdown commenced until 6 May 2020. He
alleges, further, that
during that time, he did not have remote
access to his work email. It was only on his return to the
firm’s offices,
on 6 May 2020, that he became aware of the
judgment.
12.
The applicant’s attorney then states
that he sent the judgment to the applicant but does not indicate on
what date he sent
it. He alleges, further, that on 10 May 2020, he
managed to speak to the person instructing him at the applicant who
requested
that counsel be instructed to furnish an opinion. He
doesn’t indicate what steps, if any, were taken to bring the
judgment
to the applicant’s attention and to obtain
instructions between 6 and 10 May 2020.
13.
Despite the fact that the deadline for
making the application for leave to appeal had passed, the
applicant’s attorney only
instructed counsel on 11 May 2020.
The opinion was received by the applicant’s attorney on 15 May
2020. Between 15
May 2020 and 10 June 2020, when a further opinion
was received from counsel, no explanation is provided as to what
transpired (other
than there being an instruction to obtain a second
opinion) and what steps were being taken to progress this matter.
14.
The second opinion was forwarded to the
applicant, but it is unclear when this was done. The applicant’s
attorney then states
that, on 15 June 2020, he was informed by the
person instructing him that he is having difficulty obtaining
instructions on whether
to proceed or not. There is no confirmatory
affidavit from anyone at the applicant who explains what difficulties
were being experienced
by the applicant between 15 and 30 June 2020
(or prior thereto), when the applicant instructed its attorney to
proceed with the
appeal.
15.
Whilst I accept the applicant’s
attorney’s evidence as to what he was told, I do not accept the
reasons for his not
obtaining an instruction earlier as this
constitutes inadmissible hearsay.
16.
The applicant’s attorney then states
that he received the application for leave to appeal from counsel on
4 July 2020 and
‘
thereafter
effected the necessary amendments and ensured that same was served
and filed
.’
17.
However, what the applicant’s
attorney then alleges is that on 7 July 2020, he attempted to serve a
hard copy of the application
on the respondent. He was unable to do
so and, on 8 July 2020, the parties agreed that the application could
be served via email.
Despite that agreement having been concluded on
8 July 2020, the application for leave to appeal was only served on 9
July 2020
and only filed on 14 July 2020.
18.
There is no explanation why the application
for condonation only follows some three weeks later.
19.
In
dealing with my difficulties regarding the gaps in time in the
explanation for the delay, counsel submitted that the respondent
did
not oppose this application. Although not irrelevant, it is not an
overriding consideration.
[2]
20.
Taking all the facts into consideration and
the fact that the explanation does not cover the entire period of the
delay, I find
that the applicant has not furnished a sufficient
explanation for the delay to assess whether the delay was reasonable.
21.
A further significant factor is the
applicant’s prospects of success in the application for leave
to appeal.
22.
Section 17(1) of the Superior Courts Act 10
0f 2013 read with Rule 49(1) regulate applications for leave to
appeal.
23.
The application for leave to appeal is
against the whole judgment of the court.
24.
Given the withdrawal of the application
against the second respondent, there can be no difficulty with the
absence of any order
against the second respondent.
25.
The second issue which arises is whether
order 2, which makes no order in relation to prayer 1.3 of the notice
of motion, is appealable.
26.
The
test for appealability of an order of court is whether it is in the
interests of justice for an appeal against the order to
be heard.
[3]
27.
One
of the factors to be taken into consideration is whether the order is
final. Order 2 does not have final effect and is
susceptible of
alteration by the court of first instance; it is not definitive of
the rights of the parties; and it does not have
the effect of
disposing of at least a substantial portion of the relief claimed in
the main proceedings.
[4]
28.
A further factor is whether irreparable
harm will result if leave to appeal is not granted against the order
and an interdict as
contemplated by prayer 1.3 of the notice of
motion is granted in due course? There is no indication that
the applicant will
suffer irreparable harm if leave to appeal is not
granted. There is, furthermore, no basis on which I can find
that irreparable
harm to the public will ensue if leave to appeal
order 2 is not granted.
29.
In the premises, the interests of justice
do not require that an appeal be entertained. Order 2 is not
appealable.
30.
As such, the application for leave to
appeal in relation to order 2 has no prospect of success.
31.
I turn now to the declaratory relief.
32.
It must be stated at the outset that the
applicant has failed to set out the grounds of appeal in a clear and
coherent fashion.
It was difficult to ascertain what the
grounds were, and to which orders they were applicable. My attempts
to obtain clarification
during the hearing met with little success.
33.
The grounds of appeal which I have managed
to identify appear to be directed, in the main, at order 2 and I do
not discuss them
further.
34.
The first prayer for a declarator is
directed at the respondents erecting a sign or causing or permitting
a sign to be erected.
In this matter, the respondent alleged
that it had purchased the property with the advertising sign already
having been erected
on it, this being the reason for the purchase.
This was not disputed by the applicant. The respondent could not have
erected
nor allowed or permitted anyone else to erect the advertising
sign.
35.
In the application for leave to appeal, the
applicant contends that this finding is wrong (despite the
applicant’s failure
to take issue with the respondent’s
allegations) because, ‘
The owner
of the property
[i.e. the respondent]
and the sole director of the respondent
when making a fresh application for approval despite the fact that
the advertisement sign
had been erected already confirms that he has
given permission to the respondent to erect the sign, having owned
the property since
September 2014
’.
The meaning of this contention is unclear. The alleged
confirmation is the deponent’s opinion which is irrelevant
and
makes no sense in the context of the undisputed facts.
36.
Accordingly, given the undisputed facts, I
have no difficulty in finding that another court cannot come to a
different conclusion
that the respondents had not erected nor caused
or permitted the sign to be erected.
37.
For
this reason, the applicant’s reliance on the unreported
judgment of
Friedshelf
[5]
does
not avail it.
Friedshelf
cannot be applicable in relation to factual findings.
Furthermore,
Friedshelf
is distinguishable
inter
alia
because in that matter it was clear that the respondent, as the owner
of the property, whilst not having erected the sign, had
allowed or
permitted the entity which had erected the sign to do so.
38.
For all these reasons, the application for
leave to appeal in relation to the dismissal of the first prayer has
no prospects of
success.
39.
Insofar as the prayer for the second
declarator is concerned, this is directed at confirming that prior
approval was required for
the said erection i.e., the erection of the
sign at the relevant property. Given that, as is clear from the
judgment, the date
of the erection of the advertising sign was not
established (and, in all likelihood, cannot be established), I could
not make a
finding as to whether any bylaws were applicable and,
thus, whether prior approval was required for the said erection of
the sign.
40.
None of the grounds of appeal were directed
at these factual findings.
41.
For the reasons above, it is unlikely that
another court will come to a different conclusion. Accordingly,
the application
for leave to appeal in relation to the refusal to
grant the second declarator has no prospects of success.
42.
There is no importance to be attached to
this dispute. The applicant’s failure to obtain relief in this
matter is based on
the factual findings of the Court rather than on
any legal determinations.
43.
Only the question of prejudice favours the
applicant. The respondent failed to dispute that it would not suffer
any prejudice if
condonation was granted.
44.
Taking all the above factors into
consideration, I find that the applicant has failed to establish
sufficient and satisfactory grounds
for the granting of condonation
for the late filing of the application for leave to appeal.
The
Order
45.
Accordingly, the following order is made:
1.
The application for condonation is
dismissed with costs.
F
SOUTHWOOD
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. It has been uploaded
onto CaseLines. The date of delivery of the judgment is deemed
to be 19 February 2021.
Date
of Hearing:
4 February 2021
Date
of Judgment:
19 February 2021
Appearances
For
the applicant:
DZ Kela
Instructed
by:
Tshiqi Zebediela Inc
For
the respondent:
SJ Martin
Instructed
by:
Dogulin Shapiro Demartinis Inc
[1]
Off-Beat
Holiday Club v Sanbonani Holiday Spa Shareblock Ltd
2016
(6) SA 181
(SCA) at [26]
[2]
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A) at 138E
[3]
See
the helpful overview of how the test has developed given by
Sutherland AJA in
United
Democratic Movement and another v Lebashe Investment Group (Pty) Ltd
and others
(1032/2019)
[2021] ZASCA 4
(13 January 2021) at [7]-[9]
[4]
See
Zweni
v Minister of Law and Order of the Republic of South Africa
1993
(1) SA 523
(A) at 532H-533A
[5]
City
of Johannesburg v Friedshelf 1120 (Pty) Ltd
(2016/44430) [2017] ZAGPJHC 1 [3 January 2017]