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2011
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[2011] ZAGPPHC 24
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HMKL 3 Investments (Pty) Ltd v South African National Roads Agency Limited and Others (67270/2010) [2011] ZAGPPHC 24 (7 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:7/02/2011
CASE
NO: 67270/2010
In
the matter between:
HMKL
3 INVESTMENTS (PTY) LTD
…...............................................
APPLICANT
And
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
LIMITED
…...........................................................................
1
st
RESPONDENT
THE
MINISTER: DEPARTMENT
OF
TRANSPORT
….............................................................................
2
nd
RESPONDENT
TRENCON
CONSTRUCTION (PTY) LTD
….....................................
3
rd
RESPONDENT
JUDGMENT
BAM,
AJ
1.
The applicant is the owner of immovable property, Erf 2441 Lyttleton
Manor Extension 8, situated near Centurion on the Western
side of and
adjacent to section 21 of the National Road N1 passing on the Eastern
side of the city of Pretoria.
2.
The
first respondent, hereinafter referred to as "SANRAL" is
the National Roads Agency of the Republic of South Africa,
established in terms of section 2 of the South African National Roads
Agency Limited and National Roads Act no. 7 of 1998. "The
Act."
3.
The
applicant, represented by Mr Grobler SC, with him Mr Van der Merwe,
applies, on an urgent basis, for an interim interdict restraining
SANRAL and the third respondent, a contractor employed by SANRAL,
from erecting any toll structures, more specifically a toll gantry,
on section 21 of the N1, that may obscure billboards and advertising
signage on Erf 2441 from the travelling public, pending the
review of
the approval by second respondent of the declaration on 28 March 2008
by SANRAL of section 21 of the N1 as a continuous
toll road and
establishment of electronic toll points, with ancillary relief. (A
toll gantry can best be described as a toll gate
consisting of a
supportive structure containing electronic devices for the
registration of toll liability of vehicles passing through.)
4.
Mr
Hodes SC, assisted by Mr Van Eeden SC and Mr McAslin, appearing for
SANRAL oppose the application. It was contended by SANRAL
that the
matter was not urgent and that it should be struck from the roll. The
parties, however, agreed that urgency should be
argued simultaneously
with the other issues.
5.
In order to succeed with an interim interdict, it is trite that
certain requisites have to be complied with. In the matter of
L
F Boshoff Investments (Pty) Ltd v Cape Town Municipality, Cape Town
Municipality
vLF
Boshoff Investments (Pty) Ltd
1969
(2) SA 256
(C) at 267B-F the learned judge, CORBETT J (as he then
was) ruled as follows:
"Briefly
these requisites are that the applicant for such temporary relief
must show -
(a)
that
the right which is the subject-matter of the main action and which he
seeks to protect by means of interim relief is clear
or, if not
clear, is
prima
facie
established,
though open to some doubt;
(b)
that,
if the right is only
prima
facie
established,
there is a well grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted and
he ultimately
succeeds in establishing his right;
(c)
that
the balance of convenience favours the granting of interim relief;
and
(d)
that
the applicant has no other satisfactory remedy"
See
also
Setlogelo
v Setlogelo
1914
AD 221
at p.227.
6.
Mr Hodes submitted that a court still has a discretion to refuse the
interim relief even in the event of the applicant having
succeeded in
establishing all the requirements.
"Discretion"
should, however, not be understood to mean discretion in the strict
sense and must in any event be exercised
judicially.
See
Knox
D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996
(4) SA 348
(AD) 362B-D, per E M GROSSKOPF JA:
"The
Courts have not defined the considerations which may be taken into
account in exercising the so-called discretion, save
for mentioning
the obvious examples such as the strength or weakness of the
applicant's right, the balance of convenience, the
nature of the
prejudice that may be suffered by the applicant and the availability
of other remedies. Whilst this list is not exclusive,
it does
indicate what the relevant features are in an application of this
sort. I find it difficult to imagine that considerations
which are
entirely unrelated to these features can be accorded weight in
granting or refusing an application for an interim interdict.
Finally,
in regard to the so called discretionary nature of an interdict: if a
court hearing an application for an interim interdict
had a truly
discretionary power it would mean that, on identical facts, it could
in principle choose whether or not to grant the
interdict and that a
Court of appeal would not be entitled to interfere merely because it
disagreed with the lower court's choice
(Perskor case at 800D-F). I
doubt whether such a conclusion could be supported on the grounds of
principle and policy. As I have
shown, previous decisions of this
Court seem to refute it."
7.
Regarding the requisite of a clear right, OGILVIE THOMPSON J (as he
then was) in
Gool
v Minister of Justice and Another
1955
(2) SA 682
(CPD) at 688D referred with approval (save for a small
amendment referred to in the remark following the quotation) to the
headnote
of
Webster
v Mitchell
1948
(1) SA 1186
(W) which reads as follows:
"In
an application for a temporary interdict, applicant's right need not
be shown by a balance of probabilities; it is sufficient
if that
right is
prima
facie
established,
though open to some doubt. The proper manner of approach is to take
the facts as set out by the applicant together
with any facts set out
by the respondent which applicant cannot dispute and to consider
whether, having regard to the inherent
probabilities, the applicant
could on those facts obtain final relief at a trial. The facts set up
in contradiction by respondent
should then be considered, and if
serious doubt is thrown upon the case of applicant he could not
succeed."
To
this quotation the learned judge added the following remark:
"With
the greatest respect, I am of the opinion that the criterion
prescribed in this statement for the first branch of the
enquiry thus
outline is somewhat too favourably expressed towards the applicant
for an interdict. In my view the criterion on an
applicant's own
averred and admitted facts is: should (not could) the applicant on
those facts obtain final relief at the trial.
Subject to that
qualification, I respectfully agree that the approach outlined in
Webster
v Mitchell, supra,
is
the correct approach for ordinary interdict applications."
8.
The functions, powers, and responsibilities of SANRAL are
regulated by section 25 of the Act which reads as follows:
"25.
Main
functions of Agency
-
(1) The Agency, within the framework of government policy, is
responsible for, and is hereby given power to perform, all strategic
planning with regard to the South African national roads system, as
well as the planning, design, construction, operation, management,
control, maintenance and rehabilitation of national roads for the
Republic, and is responsible for the financing of all those functions
in accordance with its business and financiai plan, so as to ensure
that government's goals and policy objectives concerning national
roads are achieved, subject to section 32(3):
9.
Section
26 of the Act provides for
additional
powers and functions
of
SANRAL, of which subsection 26{i) reads as follows:
"In
addition to the Agency's main powers and functions under section 25
the Agency is competent - (i)
to
plant trees, shrubs, other plants or grass, and protect and promote
any vegetation, alongside the roadways of national roads,
and to take
any other steps and perform any other work considered desireable for
the convenience of users of a national road or
the
appearance
of
a national road or in order to prevent soil erosion on a national
road or to prevent it arising as a result of the construction
of a
national road."
10.
Toll
levying by SANRAL is governed by the provisions of section 27 of the
Act, of which the applicable subsections provide as follows:
10.1
Section 27(4):
'Levying
of toll by the Agency -
(1)
Subject to the provisions of this section, the Agency -
(a)
with the Ministers approval -
(i)
may
declare any specified national road or any specified portion thereof,
including any bridge or tunnel on a national road, to
be a toll road
for the purposes of this Act; and
(ii)
may
amend or withdraw any declaration so made"
10.2
Section 27(4):
"The
Minister will not give approval for the declaration of
a
toll
road under subsection (1)(a), unless -
(a)
the Agency, in the prescribed manner, has given notice, generally,
of the proposed declaration, and in the notice-
(i)
has
given an indication of the
approximate
position
of the toll plaza contemplated for the proposed toll road;
(ii)
has
invited
interested persons to comment and make representations
on
the proposed declaration and the position of the toll plaza, and has
directed them to furnish their written comments and representations
to the Agency not later than the date mentioned in the notice.
However,
a period of at least 30 days must be allowed for that purpose.
(b)
...
(c)
the
Agency, in applying for the Minister's approval for the declaration,
has forwarded its proposals in that regard to the Minister
together
with a report on the comments and representations that have been
received (if any). In that report the Agency must indicate
the extent
to which any of the matters raised in those comments and
representations have been accommodated in those proposals;
and
(d)
the
Minister is satisfied that the Agency has considered those comments
and representations."
11.
It
was contended by the applicant that the erection of a toll gantry is
a
"natural
incident of a toll road'.
A
toll gantry is just another form of a toll gate and has the same
purpose of gathering toll. In principle this seems to be correct.
The
specific location is immaterial in this regard.
12.
It
is common cause that Erf 2441 is situated within the municipal
jurisdiction of the Tshwane Municipal Council. This property of
1,2661 hectares (8446 square meters) is wedged shaped with the N1 as
its direct border on the Eastern side. On the Northern side
it ends
in the sharp point of the wedge, whilst the Western side is bordered
by Theron Avenue, which runs almost parallel to the
N1. To the South,
adjacent to the property, is another property of the applicant, known
as the Remaining Extent of Portion 58 of
the farm Waterkloof 378.
13.
On Erf 2441 the applicant erected two buildings facing the N1. The
first building comprises two sections consisting of two storeys
and
one storey respectively. The double storey section is leased and/or
occupied by amongst others New Africa, Clidet NO 1011 (Pty)
Ltd
trading as Maruleng Shopping Centre, Jubilee Crossing (Pty) Ltd and
Cheetah Plains Lodge (Pty) Ltd. The single storey of this
building is
leased by C-Track. The other single storey building is partly leased
by Adventure Power (Pty) Ltd. The remaining part
of the latter
building is leased by Mobile Telephone Networks (Pty) Ltd ("MTN").
14.
14.1
Advertising
on the property is done by way of bill boards and signage on the
front of the buildings. The bill boards and other signage
are
currently clearly visible to people travelling both North and South
on the N1.
14.2
It
is the applicant's contention that approval of the advertisements on
the property falls within the jurisdiction of the Tshwane
Metropolitan Municipality and that SANRAL has no jurisdiction in that
regard.
15.
The City of Tshwane Metropolitan Municipality Control of Outdoor
Advertising By-laws, 2006, provides as follows:
Section
2(1):
"These
bylaws are designed to regulate outdoor advertising on or visible
from all public spaces in the Tshwane Municipal Area.
(2)
Prohibition and control of the erection of signs;
2.1
No
person shall erect, maintain or display a sign or allow any other
person to erect, maintain or display a sign in a place or on
a
building or structure that is visible from any public space without
the consent of the Municipality.
2.2
No
person shall erect, maintain or display a sign or allow any other
person to erect, maintain or display a third party advertisement,
except where the premises are in an area of minimum control as
defined in these bylaws.
Any
sign type not covered by these bylaws shall be regarded as an illegal
sign unless the specific consent of the Strategic Executive
Officer;
Housing, City Planning and Environmental Management has been
obtained:
16.
Approvals
for the advertising on the property were granted by the City Planning
Division of the Metropolitan Municipality of the
City of Tshwane in
September 2006 and May 2007 in accordance with section 2(2) of the
By-laws. These approvals were, however, withdrawn
by the Municipality
by notice, at the end of June 2010, without advancing any reasons
therefore. The applicant was directed to
remove the advertising
signage and the bill boards within five days from the date of the
notice. The applicant, as it was entitled
to do, by email of the 5
July 2010 requested the Municipality to furnish reasons for the
withdrawal. The Municipality, according
to the applicant, has not
responded yet. In the circumstances I do find the Municipality's
notice of withdrawal of the approvals,
without the advancing of
reasons, somewhat peculiar. An application for the renewal of the
approval for the advertisements has,
in the meantime, been lodged
with the Municipality.
17.
It
was submitted by SANRAL that the billboard advertisement of MTN was
illegal in that MTN did not conduct an on-premise business
in
contravention of the terms of the Municipal bylaws. MTN used a part
of a building on the property for nothing else than storage
purposes.
Mr Grobler did not agree and argued that the storage of goods should
fall within the definition of
"business
practiced'
envisaged
by the approvals issued in terms of the Municipality bylaws. The part
of the building rented by MTN was occupied and used
by MTN for
business purposes. I am in agreement with Mr Grobler's submission in
this respect.
18.
18.1
SANRAL
contends that the advertising on the property is in any event illegal
in that it does not comply with the provisions of section
50 of the
Act, the Regulations in terms of the Act, the by-laws of the Tshwane
Munipality and the conditions contained in the title
deed to the
applicant's property. The applicant disputes the alleged illegality
of the said advertising on the basis that the Act
and Regulations in
terms of the Act do not apply because the advertisements are
displayed in the urban area within the sole jurisdiction
of the
Tshwane Municipality.
18.2
Section
50 of the Act reads as follows:
"50.
Advertisements
on or visible from national roads
-(1)
Except as provided in subsection (2), no person may -
(a)
display
an advertisement on a national road, or permit it to be so displayed;
(b)
display,
outside an urban area, any advertisement visible from a national
road, or permit any
advertisement
which is so visible, to be so displayed;
(c)
display any advertisement visible from a
national
road
in
an urban area, on any land adjoining the national road or on land
separated from the national road by
a
street,
or permit it to be so displayed.
(2)
Subsection (1) does not apply to the displaying of any advertisement
complying with the prescribed requirements (if any) as
to the nature,
contents or size of such an advertisement or the time, manner or
place of its display, where the display thereof
is authorised by or
under the regulations concerned, or the advertisement -
(a)
is displayed on a building on which a business or undertaking is
carried on, and contains no more than the name of the business
or
undertaking or description of its nature, the name of its proprietor
and the further information (if any) as authorized by or
under the
regulations, concerned;"
Regulation
5 of the regulations under the Act provides as follows:
"5.
Regulations
not applicable in some municipal urban areas.
—
(1)
Subject to sub-regulation (2) and in terms of section 156, read with
Part B of Schedule 5, and Chapter 3 of the Constitution
of the
Republic of South Africa Act 108 of 1996, these regulations shall not
apply in an urban area where the relevant municipality
has
promulgated a by-law —
(a)
dealing
substantially with the matters covered by these Regulations, and
(b)
that
is applicable to national roads in that area,
or
in any urban area which the Minister has declared these regulations
not applicable by notice in the
Government
Gazette."
20.
Section 151(3) and (4) of the Constitution, Act 106 of 1996, read
as follows:
151(3)
"A
municipality has the right to govern, on its own initiative, the
local government affairs of the community, subject to national
and
provincial legislation, as provided for in the Constitution."
151(4)
"The
national or a provincial government may not compromise or impede a
municipality's ability or right to exercise its powers
or perform its
functions."
Section
156(3) of the Constitution further provides as follows:
"Subject
to section 151(4),
a
by-law
that conflicts with national or provincial legislation is invalid. If
there is a conflict between a by-law and a national
or provincial
legislation that is inoperative because of a conflict referred to in
section 149, the by-law must be regarded as
valid for as long as that
legislation is inoperative."
21.
Pertaining to the question whether the Regulations under the Act are
applicable in the circumstances, the Applicant contended
that those
regulations restricting third party billboard advertisements
constitute breaches of the right to freedom of expression
entrenched
in terms of section 16(1) of the Constitution, on the basis that such
limitation is not reasonable and justifiable under
section 36 of the
Constitution. Mr Grobler SC, however, in this regard stated during
argument that the Applicant did not intend
to pursue any
constitutional point.
The
notice by SANRAL in terms of the provisions of section 16 of the
Constitution is therefore not applicable.
22.
22.1
Advertising
on immovable property,
in
casu
Erf
2441, which is located in the urban area of Tshwane Municipality,
adjacent to the N1, is to my mind, regulated by the by-laws
of the
Municipality and not by the Act and Regulations. Section 50(1 )(c) of
the Act refers to advertisements visible from a national
road in an
urban area. The bylaws of the municipality, section 2(1), refer to
the visibility of an advertisement from a public
place.
Public
place,
in
its context in an urban are, without doubt, includes a national road.
Section
1 of the bylaws define "public space" as follows:
"means
a Municipality owned and controlled area to which the public has free
access that includes roads, streets, squares,
transit facilities,
sport stadia, sport -and recreational facilities such as parks,
nature trails and golf courses and also premises
accessible to the
general public on a more continuous basis such as large suburban
shopping centres;"
22.2
To
my mind the Act and Regulations are not in conflict with the
Municipality bylaws and there is no reason why the provisions of
the
Act should prevail. Regulation 5 of the Regulations under the Act,
read with section 151(3) and (4) of the Constitution, specifically
provides for the Municipal bylaw to be applicable within the urban
area and to regulate and provide for issues
regarding
the legalizing of the advertisements raised in this matter.
See
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
2010
(6) SA 182
(CC).
23.
It therefore follows that I find that the applicant does not need the
approval of SANRAL to legalize any advertisement on Erf
2441 visible
from the N1. The approval of the advertisements falls within the
jurisdiction of the Tshwane Municipality. The fact
that the initial
approvals for the advertisements were withdrawn by the Municipality
should be considered against the background
of the Municipality
failing, for a period of four months, to furnish reasons for the
withdrawal of the applicant's valid approvals
to advertise on the
property. The Municipality did apparently, also, not follow up the
official direction to the applicant and
the latter's failure to
remove all the advertisements with five days of the date of the
notice of withdrawal. Despite the withdrawal
of the approvals I am
reluctant to find that the advertisements are now illegal. It is
clear that the Municipality was satisfied
with the legality of the
advertisements until the end of June 2010. Why it suddenly became
illegal is inexplicable. Any finding
concerning the reason for the
invalidation of the approvals will at this point be nothing but
conjecture. It is further of importance
to note that at the time when
the discussions between the applicant and SANRAL commenced in May
2010 the approvals were still unquestionably
valid.
24.
The contention of SANRAL that the illegality of the advertisements is
of importance should be considered in the light of the
views I have
expressed above and in view of the fact that the declaration of
section 21 of the N1 already occurred in 2007. This
submission is
dismissed. The considerations regarding the impact of the compliance
or not with the provisions of section 27(4)
of the Act follow below.
25.
25.1
It
is not in dispute that SANRAL gave general notice, in terms of
section 27(4)(i) of the Act, of the proposed declaration of section
21 of the N1 as a toll road. This provision does, however, not
exclude that an interested party should be approached and invited
in
terms of the provisions of section 27(4)(ii), and be directed to
furnish written comments and representations to the Agency
(SANRAL).
25.2
The
applicant, who is without doubt an interested party, submitted that
SANRAL did not, in terms of section 27(4)(ii) of the Act,
invite the
applicant as
interested
party
to
furnish comments and make representations regarding the proposed
declaration of the toll road in question and the approximate
position
of the toll plaza, to enable SANRAL to forward their comment to the
Minister in order to satisfy the Minister, in terms
of section
27(4)(c) that SANRAL has considered those comments and
representations. If this was not done, it follows that the Minister
was never put in the situation to properly consider, as the Minister
was obliged to do, all the relevant facts regarding the approval
of
SANRAL's application for the declaration of the toll road.
25.3
In
these circumstances, where there was no compliance with the
provisions of section 27(4), so Mr Grobler submitted, the approval
by
the Minister of the declaration of the toll road was an irregularity
which should be reviewed and set aside, and that it follows
that the
declaration of the toll road itself should also be set aside on the
basis that a mandatory and material condition prescribed
by section
27 of the Act was lacking, within the meaning of section 6(2)(b) of
the Promotion of Administrative Justice Act 3 of
2000 ("PAJA").
25.4
SANRAL
contended that section 27(4)(i) of the Act does not provide for
individual notice to anybody of the proposed declaration
of a toll
road. The only inference that can be drawn from this submission is
that the applicant was not at all notified and invited
by SANRAL to
comment or to make representations before the declaration of section
21 of the N1 as a toll road in terms of section
27(4)(ii) of the Act.
This was an irregularity.
26.
It
is important to note that SANRAL decided to move the location of the
toll gantry on two occasions. In this regard the applicant
contends
that it was not afforded an opportunity to submit proper
representations to SANRAL. it was further submitted by the applicant
that the effect of a toll gantry on the adjacent property of tbe
applicant justified a hearing in view of the principle of
audi
alteram partem.
The
discussions between the parties when the applicant endeavoured to
persuade SANRAL to relocate the toll gantry came to nothing.
Applicant also submitted that SANRAL failed to comply with the
provisions of section 3 and 4 of PAJA. These averments of the
applicant
are denied by SANRAL.
27.
I
am satisfied that the facts show
prima
facie
that
SANRAL failed to comply with the provisions of section 27(4) of the
Act. Accordingly it follows that the applicant at least
has a
prima
facie
right
to protect and that applicant should, on the probabilities succeed
with an application to have the second defendant's approval
of the
declaration of section 21 of the N1 as a toll road and the
declaration itself reviewed and set aside.
28.
There
is a dispute between the parties whether the gantry will in fact
obscure the advertisements on Erf 2441. I have been shown
video
footage of the road from a drivers view point. SANRAL concedes that
the gantry would affect the visibility of advertisements
but only of
motorists driving in a northern direction. According to SANRAL the
advertisements will be obscured for a very short
time duration. In
this regard I have been referred to video footage and a variety of
photographs depicting toll gantry constructions.
It appears to me
that the framework of a gantry is of such a nature that it would be
extremely difficult to recognize an advertisement
which is obscured
or partly obscured by the gantry's framework. It would in any event
depend on the exact location thereof.
29.
It
was further submitted by the applicant that SANRAL did not comply
with the provisions of the National Environmental Act 107 of
1998
("NEMA"), as it was obliged to do. It was common cause that
the impact of the Gantry was not considered by SANRAL.
In this regard
it was submitted by Mr Hodes that NEMA found no application as far as
the location of toll gates are concerned.
30.
I
am however in agreement with Mr Grobler that SANRAL was obliged to
consider the provisions of NEMA regarding the impact of the
toll
gantry on the environment. In this regard I have in mind the
provisions of section 26(i) of the Act quoted in paragraph 9
above.
The said section provides for additional powers of the SANRAL
pertaining to steps which should be taken or work which should
be
performed considered desirable for the convenience of road users or
the appearance of a national road. (See also section 24
of the
Constitution.)
31.
SANRAL's
failure in this regard is clearly a non-compliance with a material
issue and requirement of natural justice which amounts
to an
irregularity.
32.
SANRAL
raised a further defence namely that the application for review was
brought outside the 180 day period prescribed by section
7 of PAJA.
It is trite that calculation of the 180 day period can only commence
once a clear intimation of the decision in question
has been conveyed
to the interested party. The applicant contended that the first
notice of SANRAL's intentions to proceed with
the construction of the
toll Gantry was by letter from SANRAL of 21 June 2010. It was common
cause that the applicant was informed
on 4 May 2010 that the
relocation of the toll gantry held time and cost implications for
SANRAL; on 21 June 2010 the applicant
was informed that the
construction of the toll gantry would proceed; and on 6 August 2010
the applicant was informed that its request
for the relocation of the
toll gantry had been rejected. The construction of the toll gantry
commenced on 19 October 2010.
33.
In
considering the facts regarding the 180 day issue, it seems to me
that the applicant did not act unreasonable to correspond with
SANRAL
in the hope that the toll gantry would be relocated. It further
appears to me that the calculation of the 180 days should
not
commence before 21 June 2010 when the applicant was informed that the
construction of the gantry would proceed. It appears
that the
considerations regarding the relocation of the gantry, at that stage,
turned upon the question of costs of such a project
as referred to in
the letter from SANRAL of 4 May 2010. That surely means that the
relocation of the gantry was still considered.
34.
The
applicant's delay to lodge the application on an earlier date should
be considered with the fact in mind that the construction
only
commenced on 19 October although the applicant's application for the
relocation of the gantry had already been dismissed on
6 August 2010.
I do not regard the time period from 19 October until the lodging of
this application on 11 November to constitute
an unreasonable delay.
35.
I
am satisfied that the applicant was justified in the circumstances to
bring this application on an urgent basis. The history of
the events
culminated on 19 October when the construction recommenced. There was
certainly a delay from 4 May when the relocation
was still being
reconsidered and 6 August when SANRAL informed the applicant that
this application for the relocation was dismissed.
In view of the
impact of the construction of the gantry on both parties it was
important and material to have the matter adjudicated
upon as soon as
reasonable possible.
36.
Regarding
the requisites for an interim interdict I am accordingly persuaded
that the applicant:
36.1
has
established a
prima
facie
right
in that SANRAL on the probabilities, did not comply with the
provisions of section 27(4) of the Act before the declaration
of
section 21 of the N1 as a toll road. It was further established that
SANRAL failed to comply with the provisions of section
2 and 3 of
PAJA.
36.2
has
established that it would suffer irreparable harm. In this regard it
must be kept in mind that the applicant runs a business
venture on
its property. The fact that the applicant has currently no approval
for the advertisements does not mean that applicant
will never get
approval in future. In this regard the balance of convenience favours
the applicant. SANRAL intends to have the
toll gantry operational in
June 2012. There is no immediate financial loss SANRAL will suffer.
There is no reason why the parties
should not approach the Honourable
Deputy Judge President again for an urgent date to have the main
application adjudicated.
36.3
has
no other remedy but to approach this court for the appropriate
relief. An action for damages will not compensate the applicant
for
the harm it may suffer.
Accordingly
I make the following order:
1.
That
the applicant's failure to comply with the requirements in respect of
service and time periods prescribed by the Uniform Rules
of the High
Court be condoned and that Part A of the application be enrolled in
terms of Rule 6(12) of the Uniform Rules of the
High court.
2.
That
pending the determination of the relief/sought in Part B of the
notice of motion, the first and third respondents be interdicted
and
restrained from erecting any toll structure on National Road N1
adjacent to Erf 2411 Lyttleton Manor Extention 8 (indicated
as
"Sanral proposed Position (TG003)" on the Arial photograph
annexed to the notice of motion as annexure "A")
that may
obscure the advertising signage and billboards displayed on that Erf
from the travelling public. The application for the
relief sought in
Part B of the notice of motion must be instituted within 20 (twenty)
days of the date of this order.
3.
That
the costs in respect of the relief sought in Part A of this notice of
motion is reserved for adjudication during the hearing
of Part B
hereof.
A
J BAM
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT