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[2024] ZAFSHC 41
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Kena Media (Pty) Ltd v Mangaung Metropolitan Municipality - Application for Leave to Appeal (4027/2021) [2024] ZAFSHC 41 (7 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Application
number: 4027/2021
In
the application between:
KENA
MEDIA (PTY) LTD
Applicant
and
MANGAUNG
METROPOLITAN MUNICIPALITY
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
19 JULY 2023
DELIVERED
ON:
7 FEBRUARY 2024
[1]
This is an application for leave to appeal against a spoliation
application brought
by the applicant and wherein a rule
nisi
was issued by one of my colleagues, which rule
nisi
I
discharged on the return date thereof and dismissed the application,
with costs.
[2]
The parties as presently cited were also the applicant and the
respondent, respectively,
in the spoliation application. I will,
however refer to them as “Kena Media” and “the
Municipality”, respectively,
like I did in the main judgment.
Applicable
legal principles pertaining to applications for leave to appeal:
[3]
Section 17(1)(a) of the Superior Courts Act, 10 of 2013 (“the
Act”) determines as
follows:
“
1.
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i) the
appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration;
(b)
…”
[4]
In the judgment of
Acting National Director of Public
Prosecutions v Democratic Alliance
In Re
Democratic
Alliance v Acting National Director of Public Prosecutions
(19577/09) [2016] ZAGPPHZ 489 (24 June 2016) the court held at para
[25] of the judgment that the Act has raised the bar for granting
leave to appeal and in this regard it referred to the judgment of
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
2014 JDR 2325 (LCC). See also
Rohde v S
2020 (1) SACR
329
(SCA) at para [8] and
Fair-Trade Independent Tobacco
Association v President of the Republic of South Africa and Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at para [4].
[5]
In considering whether there is some other
compelling reason why the proposed appeal should be heard,
an
important question of law may constitute such a compelling reason.
However, the merits thereof still need to be considered in
deciding
whether to grant leave to appeal or not. In
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA) at para [2] the
court determined as follows in this regard:
[2]
In order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii) of
the
Superior Courts Act an
applicant for leave must satisfy the court
that the appeal would have a reasonable prospect of success or that
there is some other
compelling reason why the appeal should be heard.
If the court is unpersuaded of the prospects of success, it must
still enquire
into whether there is a compelling reason to entertain
the appeal.
A compelling reason
includes an important question of law or a discrete issue of public
importance that will have an effect on future
disputes. But here too,
the merits remain vitally important and are often decisive.
Caratco
must satisfy this court that it has met this threshold.”
(My
emphasis)
[6]
In
Talhado
Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a First National
Bank
(1104/2022)
[2023] ZAECQBHC 16 (14 March 2023) the aforesaid principles were duly
followed and applied:
“
4.
Irrespective
of the prospects of success, there may nevertheless exist a
compelling reason for the appeal to be heard. The subsection
does not
contain an exhaustive list of criteria, and each application for
leave to appeal must be decided on its own facts.
5.
It
is the applicant for leave to appeal must demonstrate that there is a
compelling reason why the appeal should be heard.
6.
…
7.
Other compelling reasons include
the fact that the decision sought to be appealed against involves an
important question of law
and that the administration of justice,
either generally or in the particular case concerned, requires the
appeal to be heard.
…
8.
As far as compelling reasons are
concerned, the merits of the prospects of success remain vitally
important and are often decisive.”
The
merits of the appeal:
[7]
The subject matter of the spoliation application was an electronic
billboard (“the billboard”)
situated at the corner of
Parfitt Avenue and Henry Street, Bloemfontein, which had been removed
by the Municipality.
[8]
Amongst other findings I made, which are not the subject of the
appeal, I found as follows at
paragraphs [50] and [51] of the
judgment:
“
[50]
Based on the totality of the facts and circumstances of this matter,
I am satisfied that Kena Media proved on a
balance of probabilities
that it is the entity who was in peaceful and undisturbed possession
of the billboard at the time when
it was removed by the Municipality.
It consequently also had the necessary
locus standi
to have
launched the application. In the circumstances it was not necessary
to have joined PACOFS.
[51]
Even should I be wrong in my last-mentioned finding to the extent
that both Kena Media and PACOFS were in
peaceful and undisturbed
possession of the billboard at the time when the Municipality removed
same (which I do not find), that
would not have deprived Kena Media
of its
locus standi
to have launched the application.
The possession for purposes of spoliation need not be exclusive
possession. A spoliation
claim is also available to a person who
holds jointly with others. See
Nienaber v Stuckey
1946
AD 1049
at 1056. In such instance it would still not have been
necessary to join PACOFS, since PACOFS would not have had a direct
interest
in the subject matter of the application, namely the alleged
unlawful deprivation of
Kena Media`s possession
of the
billboard by the Municipality.”
[9]
I, however, also found as follows at paragraphs [66] and [67] of the
main judgment:
“
[66]
In view of the explicit and clear wording of
section 25(5)
of the
By-laws that the Municipality may remove a sign in the stipulated
circumstances without an Order of Court, the Municipality
was, in my
view, entitled to have removed the billboard in the present
circumstances.
[67]
Kena Media therefore failed to prove on a balance of probabilities
that it was wrongfully deprived of its
peaceful and undisturbed
possession of the billboard.”
[10]
The grounds of appeal are stated to be the following:
“
1.
The Honourable Van Zyl J erred and misdirected herself in law in
that, despite a positive finding 'that
Kena Media (Applicant) was in
peaceful and undisturbed possession of the billboard at the time it
was removed by the Municipality",
the Honourable Judge went on
to interrogate other aspects of lawfulness of removal in terms of the
By-Law in
section 25(5)
of the Mangaung Metropolitan Municipality
Outdoor Advertising By-law (By-law), issued in the Provincial Notice
No. 46 of 2019.
2.
The Honourable Van Zyl's finding that
section 25(5)
of the
By-law, makes provision for action by the by the Municipality without
notice and without a Court Order in certain specified
circumstances,
has the unfortunate consequence of resulting in the court arriving at
a conclusion diametrically opposite to a long
list of authorities on
spoliation.
3.
The above finding, with respect, loses sight of the fact that
the Municipality had already launched
the court proceedings about the
same billboard seeking ostensibly the same order for removal of the
Applicant's same
electronic sign, which was removed without a court
order triggering the spoliation application.
4.
The Court's misdirection raises fundamental questions of law which
another court would find against and they
are: -
4.1
There was a pending matter brought by the Municipality [para 53] in
which questions of constitutional invalidity
of certain provisions of
the By-Law are raised by KENA MEDIA (PTY)Ltd, which but for the
judgement of the Honourable Van Zyl J,
are rendered moot.
4.2
The Honourable Judge considered that the Municipality received an
e-mail on 30 June 2021 with regard to the
billboard [page 26 para 21,
that notwithstanding, the Municipality resorted to self-help on 20
December 2021 (some five and half
months later), without a court
order when the Applicant had already filed an answering affidavit and
counter-application on the
8th October 2021.
4.3
With respect, the Honourable Van Zyl J misdirects herself in
paragraph [63] where the Honourable Judge says "In my
view
section 25(5) is precisely the type of By-law which the Court in the
African Billboard-judgment had in mind..."
4.4
The above finding, with respect, ignores the fact that there was
pending litigation in respect of the removal of the same
subject
billboard of Kena Media (‘Applicant') initiated by
the Municipality in casu which distinguishes
this case
from African Billboard Advertising (Pty) Ltd v North and South
Central Local Councils, Durban 2004 (3) SA
223 (N).
4.5
The Honourable Judge further misdirects herself on
the inquiry "if the sign constitutes
a danger to life or
property, or causes an obstruction of visibility to traffic or to
road traffic sign on or adjacent to any public
road" without
expressing a positive finding whether section 10 of the By-law and
in terms of which the Municipality
first approached the court as a
basis for the removal can simply be used interchangeably
with section 25 of the
By-law by the Municipality to circumvent
a court to enable the removal of the Billboard without recourse to
the court.
4.6
The Judge misdirected herself on the established principle that the
purpose of the mandament is to provide a remedy
by requiring the
status quo preceding the dispossession to be restored by returning
the property "as a preliminary to any
enquiry or investigation
into the merits of the dispute".
4.7
With respect, the Honourable Judge Van Zyl considered the
merits of the dispute in a manner that deprives
the Applicant from
properly ventilating the constitutional validity of section 25 of the
By-law before the court with competent
jurisdiction, moreover, in
circumstances where litigation was lis pendens and issues of
constitutional invalidity of
certain provisions
of the By-law
were raised in order to be ventilated in court. (My emphasis)
4.8
From the admitted and common
cause facts, there was nothing
preventing the
Municipality from approaching the court between date of service of
the first application on 1 September 2021 and
20 December
2021, even on an urgent basis for removal of the billboard as opposed
to its unlawful and wanton disregard
for the due process of law the
Municipality had already initiated.
4.9
On the contrary and upon the Honourable Van Zyl J's finding of: -
4.9.1
Peaceful and undisturbed
possession and evidence
of
dispossession by the Municipality [paragraph 50];
4.9.2
the finding that the billboard was removed by the Municipality or on
instructions of the Municipality [paragraph 52];
4.9.3
there was pending litigation brought on 1 September 2021 issued by
respondent, inter alia, to seek the removal or cause
to be removed at
their own cost, within 7 days of the order, the outdoor sign located
at Henry Street and Parfitt
Avenue,
Bloemfontein ... [paragraph 5].
5.
The Honourable Van Zyl J ought to have found
that:
5.1
The rule nisi is confirmed.
5.2
The Respondent is ordered to pay the
Applicant's costs on attorney and client scale.
The
Applicant submits that this appeal raises important questions of law
dealing with spoliation in the context of lis pendens.
It is
submitted further that reasonable prospects exist that another court
would find that the Applicant has made a case for the
spoliation
relief pending the hearing of the first application brought under the
above case number and that it will be just and
equitable that the
order by the Honourable Van Zyl J be set aside.
[11]
I have duly considered the grounds of appeal, together with the
eloquent arguments which Ms Sogoni, who appeared
on behalf of Kena
Media in the hearing of the application for leave to appeal,
presented. She submitted that I correctly found
that Kena Media was
in peaceful and undisturbed possession of the billboard at the time
it was removed by the Municipality. She,
however, submitted that I
erred in having gone further into the question of the entitlement of
the Municipality to have removed
the billboard in terms of section
25(5) of the By-laws. In this regard she submitted that for purposes
of spoliation I should not
have dealt with the merits of the
entitlement, or not, of the Municipality to have done so, and
secondly, by having done so, I
inadvertently deemed the By-laws to be
constitutionally valid, whilst there was a pending application which
sought the By-laws
to be declared unconstitutional and invalid.
[12]
In my view I have not erred in having made the findings in paragraphs
[66] and [67] of my judgment, already
quoted above. Those findings,
and the reasoning therefore, dealt with the question of whether the
removal of the billboard was
wrongful, or not, which is the second
requirement for purposes of obtaining a spoliation order, which I
found did not constitute
wrongful deprivation.
[13]
Furthermore, it was not the case of Kena Media that I am not entitled
or should not deal with the spoliation
application pending the
outcome of the first application. In my view there was in any event
no such bar for me to have done so,
because at the time I adjudicated
the application, the By-laws were still in force and enforceable.
This is addition to the fact
that the first application dealt with
section 10 of the By-laws, whilst in the spoliation application I
dealt with section 25 of
the By-laws. As correctly contended by Mr
Patel, who appeared on behalf of the Municipality, it was not Kena
Media`s case before
me during the hearing of the application that
section 25(5) of the By-laws infringe upon section 34 of the
Constitution. This line
of argument was only raised for the first
time in the application for leave to appeal. I was never called upon
to determine the
constitutionality of section 25 (5) of the By-laws.
Kena Media is precluded from attempting to build or create a new case
on appeal.
See
Ras and Others NNO v Van der Meulen and Another
2011 (4) SA 17
(SCA) at para [16].
[14]
In my view there are no reasonable prospects that the proposed appeal
would succeed and there is no other
compelling reason why
the appeal should be heard.
Order:
[15]
The following order is made:
1.
The application for leave to appeal is dismissed, with costs.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
P. Sogoni
Instructed
by
:
Menzi
Vilakazi Inc Attorneys
C/O
Mlozana Attorneys
Bloemfontein
On
behalf of the respondent:
Adv.
M. Patel
Instructed
by:
S
Suleman Attorneys
C/O
Ngwane Attorneys
Bloemfontein