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[2010] ZAECPEHC 76
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Tractor Outdoor Eastern Cape (Pty) Ltd v Nelson Mandela Bay Metropolitan Municipality and Others (2037/2010) [2010] ZAECPEHC 76 (21 December 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 2037/2010
Date
heard: 9 December 2010
Date
delivered: 21 December 2010
In the matter between:
TRACTOR OUTDOOR EASTERN CAPE
(PTY)
LIMITED
Applicant
and
THE NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY
First
Respondent
CONTINENTAL OUTDOOR MEDIA (PTY)
LIMITED
Second
Respondent
ADRAP ADVERTISTING TECHNOLOGIES
(PTY)
LIMITED
Third
Respondent
POLE-ADD PORT ELIZABETH (PTY)
LIMITED
Fourth
Respondent
SABELANI PROMOTIONS &
MARKETING CC
Fifth
Respondent
CENTURY MEDIA (PTY) LIMITED
Sixth
Respondent
FUNITHUBA
INVESTMENTS CC
Seventh
Respondent
JUDGMENT
DAMBUZA, J
:
In this application the applicant
seeks an order that the sixth respondent be interdicted and
prohibited from erecting signage
which is not compliant with the
provisions of the Outdoor Signs Bylaws and/or section 4 of the
National Building Regulations
and Building Standards Act, Act 103 of
1977 as amended (the Act). It also seeks an order that the sixth
respondent be ordered
to remove any signage which is not compliant
with the aforementioned Bylaws and/or Act, in particular, gantries
and billboards
erected on Allister Miller Road, William Moffet
Expressway, Buffelsfontein Road and Uitenhage Road, Port Elizabeth.
The order
sought by the applicant has somewhat evolved from the
original order sought when the application was launched.
The applicant is a company conducting
business in the outdoor advertising sector (outdoor media), which
involves leasing sites
from property owners for the purposes of
marketing them to advertisers and contracting with the advertisers
for display of advertisements
thereon. It then procures approval
from the first respondent (the Municipality) for display of the
advertisements. The second
to seventh respondents conduct similar
businesses.
On 16 July 2010 the applicant
launched the application as a matter of urgency, seeking an order
against the first to the seventh
respondent that:
1. As against the first respondent,
that it be interdicted and prohibited from allowing advertising
signage, which does not comply
with the Bylaws, to be erected on
immovable property belonging to the it (the first respondent) and
that it be directed to immediately
cause to be removed from its
properties any advertising signage which does not comply with the
Bylaws;
2. As against the second to seventh
respondents, that they be interdicted and prevented from erecting any
signage which does not
comply with the Bylaws and that they be
ordered to remove any advertising signage on the properties of the
first respondent which
does not comply with the Bylaws.
The application was precipitated by
the first respondent allowing advertisements on its properties,
which do not conform to the
relevant advertising Bylaws. The
advertising structures in question were erected pursuant to a tender
awarded by the first respondent
on 27 May 2010. In terms of the
tender, the first respondent rented out sites, to the second to
seventh respondents to source
businesses to advertise their products
on billboards erected on the sites owned by the first respondent.
It is common cause
that the applicant did not participate in the
tender and was not awarded a contract thereunder. In the founding
affidavit
Bruce Jeffries
stated, on behalf of the applicant,
that the applicant intended to challenge the tender process by
seeking a review thereof.
In the founding
papers the applicant’s case is that pursuant to the award of
the tender, the beneficiaries erected advertising
structures, being
gantries and billboards which do not conform to the relevant Bylaws
in various ways, including being erected
without having sought and
obtained the required consent to display the advertisement. The
following, are examples of specific
details of contravention of the
Bylaws:
1
5.1
Gantry Buffelsfontein Road
Contrary to Schedule 2 (section 7(b))
of the By-Law:
(a) no specific consent was obtained
for displaying the advertisement;
(b) it is 75m from the intersection of
that road with Titian Road (contrary to the provision that no sign
may be erected within
a radius of 300metres from the centre of an
intersection on an arterial road).
5.2
Gantry on Allistair Miller
Road
Contrary to Schedule 2 (section 7(b))
of the By-Law:
the gantry is erected in an area of
Maximum Urban Control;
was erected without specific consent
having been obtained (to display advertisements);
it exceeds the maximum size allowed;
is situated within 2,5km radius of
another illegal gantry;
is erected within 300m from the
intersection of Allistair Miller Road and De Havilland Street.
5.3
Gantry on William Moffett
Expressway
Contravenes schedule 2 (section 7(b))
in that:
(a) it is erected in an area of
maximum urban control;
(b) no specific consent was obtained
for display of signage.
5.4
Gantry on Uitenhage Road
Contrary to schedule 2 (section 7(b))
of the By-Law:
the gantry is erected within an area
of partial control;
no specific consent was obtained for
display of signage.
Billboard on Beach Road
Contrary to schedule 4 (section 7(d))
of the By-Law:
is built within an area of maximum
urban control;
no specific consent to display
signage was given and no SEA (strategic environmental assessment)
was conducted; and
is built within the urban road
reserve.
Billboard on Cape Road
Contravenes schedule 4 (section 7(d))
in that no specific consent to display signage was obtained and no
SEA was conducted:
the billboard falls within the urban
road reserve; and
it was built within 100m of the
intersection of Cape Road and Greyville Road.
Billboard on 17
th
Avenue
Contravenes schedule 4 (section 7(d))
of Law in that:
it is built within an area of Maximum
Urban Control;
no specific consent to display
signage was obtained and no SEA was conducted prior to erection;
is located within 50m of intersection
of 17
th
Avenue and Glencondor Crescent.
On 22 July 2010 the application was
postponed to 19 August 2010 by an order of court, granted with the
consent of the applicant,
the first respondent and the sixth
respondent. The order also records an undertaking by the first
respondent not to permit, in
the meantime, erection of any
advertising signage in contravention of the Bylaws on its property.
The sixth respondent also
gave an undertaking that, pending the
determination of the application, it would not erect any advertising
signage which was
not compliant with the Bylaws, but would be
entitled to secure ”
for safety purposes, advertising
signage already partially erected or constructed”.
The
other respondents, it appears, never opposed the application.
On 5 August 2010, the applicant
served another application (the second application) on the first and
sixth respondent, seeking
removal, by the sixth respondent, of
non-complaint outdoor advertising signage. The second application
was based on the persistence
of the sixth respondent in erecting
non-compliant signage subsequent to the order of 22 July 2010.
On 10 August 2010, being the date on
which the second application was set down for hearing, it was also
postponed to 19 August
2010. The sixth respondent, in opposing the
second application, maintained that it had not intended to consent
to the order of
22 July 2010, and that the agreement between the
parties, in any event, had been that it could complete work and
advertisements
on five billboards/gantries that had already been in
the course of construction.
The sixth respondent also brought a
counter-application, seeking, amongst others, consolidation of the
first two applications
and for an order that the applicant furnish
security of R500,000.00 as security for the sixth respondent’s
costs, on the
basis that the first two applications constitute abuse
of court process and a
mala fide
intent on the part of the
applicant, to eliminate competition.
On 19 August 2010 the application
(including the counter-application) was postponed to 28 October 2010
and the applicant was ordered
to furnish such security as would be
determined by the Registrar. Orders were also made regarding filing
of further affidavits.
The second application was postponed
sine
die
.
Prior to the 28 October 2010 the
applicant filed a notice of its intention to amend its notice of
motion by adding a further statutory
prescript which the conduct of
the sixth respondent falls foul off, ie section 4 of the National
Building Regulations and Standards
Act. The amendment had been
preceded by a notice issued by the first respondent to the sixth
respondent to remove the offending
structures as they had been
erected in contravention of section 4 of the Act. As a result of
the step taken by the first respondent
the order originally sought
against it became unnecessary.
The notice to remove the structures
was served on the sixth respondent following one of the gantries
having become unstable and
leaning over pursuant to strong winds.
This resulted in traffic passing through the structure having to be
redirected. The sixth
respondent, however, never removed the
structures; instead, it submitted plans in respect thereof to the
first respondent. The
plans were assessed on 27 August 2010 and were
rejected for a number of reasons. The structures, however, remained
on the road
until the hearing of the application.
On 28 October 2010 the application
was postponed to 9 December 2010 being the date on which I heard it.
When the application
came before me the applicant sought a
further amendment to the Notice of Motion being the deletion
therefrom, of reference to
the Eastern Cape Act, Act 3 of 2003 on
which, at that stage, the applicant also relied in the application.
Consequently, when
the application served before me, the applicant’s
case was essentially one of contravention, by the sixth respondent,
of
the Bylaws and section 4 of the Act. The issues before me on 9
December 2010 in the application were:
Joinder
This was one of the orders sought by
the sixth respondent in the counter-application. The sixth
respondent sought to join, as
respondents in its
counter-application, the first respondent and some of its
functionaries, together with the Premier of the
Eastern Cape. The
ultimate intention was to seek an order that the decisions by
functionaries of the first respondent, rejecting
building plans
relating to the gantries, and issuing the notice that the gantries
be removed, be set aside. I then heard the
application for joinder
and dismissed it with costs, prior to hearing the main application.
My view was and remains that no
proper case had been made for the
joinder sought.
In the counter-application the sixth
respondent explained that the joinder was precipitated by the
applicant’s (third) application
in which was sought an
amendment to the notice of motion as set out in paragraph 11 above.
The sixth respondent contended that
the effect of the amendment was
that the applicant was now relying on the decision of the
functionaries of the first respondent
who had ordered removal of the
structures and rejected the sixth respondent’s building plans.
The sixth respondent intended
to bring an application, challenging
the constitutionality of the Eastern Cape Legislation Act 3 of 2003.
It contended that
regulation, by Act 3 of 2003, of erection of
structures near the roads could not be enforced as no Regulations
had been issued
in terms thereof and as required under that Act.
Further, so it was argued, the relevant provisions sought to be
enforced are
unconstitutional for inconsistency with protection of
freedom of speech under the Constitution Act 106 of 1996 (the
Constitution).
My view was that this procedural step
by the sixth respondent was misguided and had no proper basis. The
application, as I have
explained, is founded on contravention of the
Bylaws and the Act as is apparent from the Notice of Motion. The
relevant inquiry
is whether the structures built by the sixth
respondent comply with the relevant provisions in the Bylaws and the
Act. I could
not find that any interests of either the first
respondent or the Premier that might be affected prejudicially by an
order that
I would grant in this application. It is common cause
that no building plans were approved prior to the erection of the
structures.
Any Constitutional challenge to either the Bylaws or
Act 3 of 2003 would be unrelated to the non-compliance with the
provisions
of Act 103 of 1977.
Further, as
Mr Beyleveld
submitted on behalf of the applicant, the rejection of the building
plans was irrelevant for the purposes of this application
because
the plans were submitted to the first respondent for approval
subsequent to the transgression(s) complained of having
been
committed. The factual basis of the applicant’s complaint
had largely remained the same throughout the application.
For
example, In the original founding papers to the application
Bruce
Jeffries
refers to a letter from its attorneys on 8 July 2010
(prior to the launch of the application) to the first respondent’s
attorney stating that:
“The signs are being erected without
the requisite approvals and in contravention of a number of the
sections covered under
the signage By-Law. They are also being
erected with no co-ordination or consultation with affected
departments within the NMBM.
A number of them constitute an
immediate public safety risk regarding traffic safety”.
Any
appeal that the sixth respondent intended to lodge against the
notice that it removes the structures or against the rejection
of
its building plans will, in my view, not be sufficiently related to
this application to warrant the joinder sought. It is
for these
reasons that I dismissed the application for joinder.
Locus standi
In the counter-application the sixth
respondent challenges the applicant’s
locus standi
and
seeks that the applicant be ordered to furnish documents relating to
its legal standing to bring the first two applications.
The sixth
respondent also seeks an order that the first two applications be
stayed, pending institution of proceedings by the
applicant for
review of the tender award. It is my view that this contention is
based on the incorrect perception that the first
two applications
are founded on the intended review of the tender by the applicant.
This is a persistent misunderstanding by
the sixth applicant of the
basis of this application. The record reveals that, at the hearing
of the application by the sixth
respondent for postponement of the
application on
28 October 2010, Schoeman J attempted,
repeatedly, to explain that this application is not founded on an
intended review of the
tender. But that remained the sixth
respondent’s view of the matter even before me. The fact that
an intention to challenge
the tender was expressed in the founding
affidavit does not necessarily mean that the application is founded
on the intended
review. The order sought, for stay of the
application, has, in my view, no foundation. From the contents of
founding affidavit
I can only conclude that the allegations therein
result from a personal observation inspection of the offending
structures. Photographs
of the offending which form part of the
founding papers. I can not find that the applications are based on
hearsay as the sixth
respondent contends.
In the founding affidavit
Jeffries
sets out the applicant’s
locus standi
as founded on its
interest as a member of the advertising industry, acting in the
interests of all members and class of persons
within the advertising
industry in Port Elizabeth. I am satisfied that these allegations
sufficiently establish the
locus standi
of the applicant. In
any event, any ordinary user of the roads on which the gantries are
built, who fears harm resulting from
the erection thereof would, in
my view, be entitled to bring proceedings in the relevant court of
law to have the billboards
removed.
Urgency
The sixth respondent contends that
the first two applications were not urgent and fall to be dismissed
on this ground alone.
I disagree. If the structures are illegal in
that they were erected without the requisite consent and approval of
plans, and
if they pose physical danger to road users, the
illegality and potential danger to road users require urgent
determination.
It is common cause that part of the assessment that
would be done on the building plans would be determination of the
structural
soundness thereof. As the structures were erected
without this assessment having been done there is nothing to gainsay
the applicant’s
contention that the structures pose an
immediate and significant danger to public safety.
Merits
The sixth respondent pleads that the
order sought in the application is impermissible in the absence of
the application for review
of the tender. I have sufficiently
expressed my views in this regard.
I have also expressed my views on the
contention that the application is founded upon inadmissible
hearsay, opinion and irrelevant
matter; it is therefore unfounded.
As to the second application, the
sixth respondent raises the issue of interpretation of the order of
22 July 2010. In my view
the order is clear and there is no
provision therein for completion of works already started as
contended by the sixth respondent.
The sixth respondent draws a
distinction between itself, as the company that erected the
structures, and the “flighting
company” that flighted
the advertising banners thereon on instructions of the advertiser.
The suggestion seems to be
that the sixth respondent is not
responsible for the banners and for the flighting thereof subsequent
to the order of 22 July
2010. But, the sixth respondent is the one
to whom the site(s) are contracted. In any event, this argument is
not consistent
with the contention by the sixth respondent that it
understood the order of 22 July to entitle it to complete work on
the structures.
Further, as submitted on behalf of
the applicant, the distinction sought to be drawn by the sixth
respondent between an advertisement
and the structure on which it is
mounted cannot be sustained. In terms of the Bylaws an advertisement
includes
the structure on which the advertisement, i.e. the
representation of words, figure, sign etc, is displayed
and
an
advertising sign, an advertisement, object, structure or device
which is in itself an advertisement or which is used to display
an
advertisement, in view of any street or public place; consent for
the display of a sign includes consent for the purposes
of the
display, whether by the erection of structures or otherwise.
The
sixth respondent is the contracting party with the first respondent
in respect of use of the site and the structures for advertising.
A further ground on which the sixth
respondent resists the application is that it obtained authorisation
from the first respondent
to build the structures. A background
thereto is set out that the tender issued by the first respondent
was in compliance with
the first respondent’s obligations as a
host city during the FIFA world cup. Because of delays, the tender
was only finalised
in May 2010, and immediately upon the awarding of
the contracts, the sixth respondent was placed under pressure by the
first
respondent to discharge its obligations under the tender. In
particular, it was instructed to proceed and erect the
billboards/gantries.
Having taken considerable trouble in preparing
the structures, the sixth respondent explains, it then sought and
obtained, on
21 June 2010, the necessary approval before commencing
with installation of the structures. In this regard it obtained a
letter
from Mr Rodney Williams, the Director of Communications with
the first respondent in which is stated that:
“
This
letter serves to authorise Century Media to put in foundations and
erect billboard structures, as per Billboard tender awarded
(Bid
Adjudication Committee dated, 27 May 2010 and receipt of appointment
Letter dated 29 May 2010. This letter constitutes full
authorisation
to proceed with building and erection”.
The letter, however does not
constitute compliance with relevant provisions of the Bylaws and/or
the Act. No explanation is offered
as to why a proper approval of
plans in terms of the applicable laws, was not sought. Apart from
the reference to the letter
by Mr Williams, it is not the sixth
respondent’s case, as I understand it, that the gantries and
billboards in fact comply
with the relevant laws. Much is said, by
the sixth respondent, of its intention to institute proceedings for
the striking down
of section 24 of the Eastern Cape Roads Act and
the Bylaws as unconstitutional. But it remains common cause that
the structures
were built without approved plans. Neither Mr
Williams nor the first respondent, as a creature of statute has
authority to authorise
procedure which falls outside relevant
Ordinances or legislation.
Mr Venter’s
submission,
on behalf of the sixth respondent that because the National Building
Regulations and Building Standards Act does
not expressly preclude
approval of building plans subsequent to the erection of the
building and that such approval can be granted
subsequent to the
building having been erected is inconsistent with the provisions of
the Act. Section 4(1) of the Act provides
that:
“
No
person shall, without the prior approval, in writing of the local
authority in question, erect any building in respect of which
plans
and specifications are to be drawn and submitted in terms of this
Act”.
The wording is clear. It is a
prohibition of construction of a building without approved building
plans. It could never have been
the intention of the Legislature, in
my view, to allow buildings to be erected and to only seek approval
of the building plans
subsequent thereto. Such a situation would
defeat the very foundation and purpose of the Act and would result in
lawlessness and
chaos. Even
Mr Venter
could not cite any
precedent for his submission.
Mr Venter
then submitted that
the remedy sought by the applicant, being removal of the structures,
is not the only remedy or is not provided
for in the Act. In this
case I cannot find that there is more appropriate remedy than the
one sought by the applicant.
In submitting that
I should not grant the demolition order sought
Mr
Venter
referred me to various cases. I have considered them for guidance.
2
But in the exercise of my discretion in this regard I consider it
relevant and persuasive that the structures are used for advertising
purposes rather than for residential purposes. The potential harm
to road users is, in my view, a further important consideration.
The balance of convenience between setting allowing the illegal
structures to remain on the road, is in my view, outweighed
by the
cumulative weight of the first two factors.
The following order shall therefore
issue :
1. The sixth respondent is interdicted
and prohibited from erecting signage which is not compliant with the
provisions of the Outdoor
Signs (Advertising and Other) Bylaws as
published in the Provincial Gazette 2351 of 14 May 2010 and which is
not compliant with
section 4 of the National Building Regulations and
Building Standards Act , 103 of 1977, as amended;
2. The sixth respondent is ordered to
immediately remove any advertising signage and in particular,
gantries erected on Allister
Miller Road, William Moffett Expressway,
Buffelsfontein Road and Uitenhage Road which are not compliant with
the provisions of
the aforesaid Bylaws and non compliant with the
provisions of Act 103 of 1977 as amended; and
3. The sixth respondent is ordered to
pay the applicant’s costs of this application.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances
:
For the applicant: Adv A. Beyleveld SC
instructed by Cecil Kerbel Attorneys of Port Elizabeth
For 1
st
respondent: Adv
R.G. Buchanan SC and Adv M. Booi instructed by McWilliam’s &
Elliot of Port Elizabeth
For 6
th
respondent: Adv
P.J. Venter SC instructed by Burman Katz Attorneys of Port Elizabeth
1
Outdoor Signs (Advertising and Other) Bylaws as published in the
Provincial Gazette 2351 of 14 May 2010.
2
Paola v Jeeva NO and Others
[2003] All SA 433
(SCA);
Walele v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
Rosebank Mall (Pty) Ltd & Another v Cradock Heights (Pty) Ltd
[2003] All SA 471
(W).