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[2022] ZAFSHC 276
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Kena Media (Pty) Ltd v Mangaung Metropolitan Municipality (4027/2021) [2022] ZAFSHC 276; [2022] 4 All SA 791 (FB) (10 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 4027/2021
Reportable:
YES/NO
Of
interest to other Judges:YES/NO
Circulate
to Magistrate: YES/NO
In
the application between:
KENA
MEDIA (PTY) LTD
Applicant
and
MANGAUNG
METROPOLITAN
MUNICIPALITY
Respondent
CORAM:
VAN
ZYL, J
DELIVERED
ON:
16
AUGUST 2022; 10 OCTOBER 2022
[1]
This is the return
date of a rule
nisi
which was issued on an urgent basis
by one of my colleagues. In terms of the Court Order the following
relief was,
inter alia,
ordered:
"1.
That this application be enrolled and heard as an urgent application
in terms of Rule
6(12) ...
2.
A rule
nisi
is granted calling upon the
respondent to show cause ... as to why an order in the following
terms should not be granted:
2.1
That the respondent be ordered to restore possession of and replace
the applicant's electronic
billboard to its location at Protea Hotel,
corner Parfitt and Henry Streets, Bloemfontein and to its former
state;
2.2
The respondent be ordered to pay all such costs as are necessary for
the restoration and replacement
of the Applicant's electronic
billboard as per 2.1"
[3]
Although the Applicant in its notice of motion requested that the
aforesaid
rule nisi
should serve as an interim interdict with
immediate effect pending the finalization of the application, the
Court Order does not
reflect such relief.
Background:
[4]
The bone of contention is an electronic billboard ("the
billboard") situated at the corner of Parfitt Avenue and Henry
Street, Bloemfontein. It is common cause that the Applicant has an
interest in the billboard, although the nature of its interest
is in
dispute.
[5]
On 1 September 2021 the respondent, as applicant, issued an
application against the
respondent, as first respondent, in which the
respondent,
inter alia,
sought the following relief against
the applicant:
"1.
Directing the First and/or Second Respondent to remove or cause to be
removed at their own cost, within 7 (seven) days
of this order, the
outdoor advertising sign described as a permanent single sided
externally eliminated flashing electric billboard
with a digital
screen, measuring approximately 6 (six) metres in height and 3
(three) metres in width, and located at corner Henry
Street and
Parfitt Avenue in Bloemfontein, Free State Province.
2.
Directing the First and/or Second Respondent to rehabilitate at their
own cost
the soil which was affected by the erection of the
abovementioned outdoor advertising sign on the Applicant's land...
3.
Failing compliance with the above orders, authorising the Sheriff of
this Court
to take all such steps as are necessary to ensure complete
and proper compliance with such orders, and directing that the costs
attendant thereupon shall be borne by the First and/or Second
Respondent.
4.
Restraining and interdicting the First and Second Respondents from
erecting or
installing the abovementioned outdoor advertising sign,
or any other advertising sign, anywhere within the Applicant's
municipal
area or jurisdiction, unless and until such time as consent
therefore has been granted by the Applicant or its counsel in the
prescribed
form, following compliance with the applicable by-laws and
statutes.
5.
Directing the First and Second Respondents, alternatively the First
Respondent,
to pay the costs of the application on the scale of
attorney and own client, alternatively on a party and party scale."
[6]
I will refer to the aforesaid application as the first application.
However, for the sake of clarity, I will henceforth refer
to the
present applicant as Kena Media and to the present respondent as the
Municipality, both in relation the first application
and the present
application.
[7]
From a reading of paragraph 5 of the founding affidavit filed in the
present application, read in conjunction with paragraph
30.3.1 of the
answering affidavit thereto, the parties appear to be
ad
idem
that the first application was
brought in terms of section 10 of the Mangaung Metropolitan
Municipality Outdoor Advertising By-laws,
published in Provincial
Gazette Notice No. 77 of 21 November 2008, as amended, published in
Provincial Gazette No. 101 of 9 October
2015 and as further amended,
published in Provincial Gazette Notice No. 38 of 19 July 2019 ("the
By-laws").
[8]
Kena Media opposed the first application and filed an answering
affidavit and counter-application on 8 October 2021. In terms
of the
counter-application Kena Media is seeking an order for the review and
setting aside "as
unlawful and constitutionally invalid the
promulgation of the Mangaung Metropolitan Municipality Outdoor
Advertising By-law, issued
in the Provincial Notice No. 46 of 2019
and purportedly passed by Council of the Municipality on Tuesday, 5
March 2019, to the
extent that the By-law did not
go
through
a
process of public participation",
as well as further
consequential relief.
[9]
At the time of the hearing of the present application no further
exchange of application papers had occurred in the first application.
The
founding affidavit:
[10]
The deponent to the founding affidavit filed in the present
application is Mr Matsepe, a director of Kena Media. According
to his
affidavit he received a call from a friend on 20 December 2021 who
informed him that it appears that the panels of the billboard
had
been removed and that a huge crane was located in close proximity to
the billboard, purportedly to remove same. According to
him he knew
that there was no Court Order which authorised the removal of the
billboard and that the purported removal by the respondent
was
consequently
prima facie
unlawful. The deponent immediately
contacted his attorney to inform him of the imminent removal of the
billboard. On the very same
date a letter of demand was addressed to
the office of the respondent's Municipal Manager in which letter,
inter alia,
the following was stated:
"2.
We have received instructions that the Municipality has authorised
the unlawful removal of the billboard of our client
located at Protea
Hotel, Corner Parfitt Avenue and Henry Street.
3.
The removal of the billboard without a
court order is both unlawful and undermines the court process
initiated by the Municipality
under case number 4027/2021 in the High
Court, Free State Province.
4.
Should we not receive your undertaking
to stop the unlawful removal of the billboard by no later than 12:00
pm on Tuesday, 21 December
2021, the subject of litigation under case
number 4027/2021, we hold instructions to bring an urgent application
for the spoliatory
relief."
[11]
The deponent to the founding affidavit further alleged as follows:
"17.
Kena Media was in peaceful and undisturbed possession of the electric
billboard sign prior to the unlawful conduct of
removal of panels of
the billboard.
18.
I am not aware of the contractor's
details contracted by the Municipality to remove the billboard. I
therefore seek an urgent order
preventing the removal against whoever
is on site, whether by the Municipality or by any person or entity
contracted for the purpose
of the removal of the electronic sign at
Protea Hotel.
19.
Our attorneys have never, despite being
on record, been informed of the intention to remove the electronic
billboard and sign.
20.
Kena Media has been unlawfully
dispossessed by the Municipality and its only remedy to prevent
imminent destruction and removal
of the billboard is to approach the
Court to maintain the status quo pending the hearing of the case
4027/2021".
[12]
Later in the founding affidavit the deponent also alleged as follows:
"24.
Kena Media has a
prima facie
right to the relief sought, also
buttressed by the pending litigation before the Honourable Court
under case number 4027/2021.
25.
There is no alternative remedy available
to Kena Media, other than spoliatory relief and interdictory relief
to stop the Municipality's
under hand tactics of self-help
...
26.
The balance of convenience, in the light
of the pending matter in case 4027/2021 in which the Municipality
seeks an order for the
removal of the billboard which they are now
removing without a court order, favours the applicant."
The
answering affidavit:
[13]
The deponent to the answering affidavit is Mr Moore, the
"Acting
City Manager'
of the Municipality at the time.
[14]
In the answering affidavit the Municipality raised a number of issues
in opposition to the application, some of which can be
considered to
be points
in limine
and others which pertain to the
substantive merits of the application. In order to prevent the
repetition of allegations, I will
deal with the detail of the issues
which I deem relevant when I consider the merits of the application.
The
basis of the application:
[15]
Kena Media in its founding affidavit dealt with the requirements for
a spoliation order, on the one hand, but also for interdictory
relief, on the other hand, and the Municipality followed suit in its
answering affidavit. However, the legal representatives of
both
parties approached the matter in their respective heads of argument
on the basis of a spoliation application and also directed
their oral
arguments accordingly, in my view correctly so.
Points
in limine:
Lack
of urgency:
[16]
The alleged lack of urgency and the grounds therefore were raised
both in the Municipality's answering affidavit and in the
heads of
argument of Mr Ress, who appeared on behalf of the Municipality. Mr
Ress also addressed the point in his oral argument.
[17]
Mr Mfazi, who appeared on behalf of Kena Media, submitted that
because the order pertaining to urgency had already been granted
by
the court who issued the
rule nisi,
same cannot be revisited
or re-considered at this stage of the proceedings, since that would
be tantamount to me sitting as a court
of appeal on the issue.
[18]
In support of his aforesaid contention, Mr Ress relied on the
unreported judgment of
Tiprow
Controls (Pty) Ltd v Beeftech
Botswana (Pty) Ltd
{A3125/2018) [2019] ZAGPJHC 96 {19 March 2019). In that matter the
Magistrate in the court a
quo
granted
an urgent
ex parte
order,
which it confirmed on the return date thereof. The appellant {the
respondent in the court a
quo)
noted
an appeal against the whole of the judgment and the order. The court
of appeal found at paras [12] and [13] of the aforesaid
judgment that
the respondent {the applicant in the court a
quo)
failed to make the necessary
allegations in its founding affidavit filed in the court a
quo
so as to have justified the hearing
of the application on an urgent
ex
parte
basis and that the court a
quo
ought to have dismissed the
application on that score alone. With regard to the confirmation of
the
rule nisi,
the
court found that the court a
quo
further erred by having confirmed
the
rule nisi
in
circumstances where it ought to have discharged the
rule
nisi
due to the non-disclosure of
all material facts and also because the relief sought on the merits
was incompetent as the court had
no jurisdiction in relation thereto.
[19]
In my view the aforesaid judgment cannot serve as support of the
contention by Mr Ress. Firstly, that was a judgment on appeal
and
therefore it was competent for that court to have found that
condonation should not have been granted by the court a
quo.
I am not sitting as a court of
appeal. Secondly, the finding that the
rule
nisi
should not have been confirmed
on the return day, clearly relates to the
rule
nisi
pertaining to the substantive
relief sought in the application and not the condonation order. It
was not found that the court a
quo
ought to have re-visited the
condonation order on the return day. Similarly, in the present matter
the condonation order was issued
as a substantive order on its own -
it is not part of the
rule nisi.
It
is therefore not competent for me to re-visit or re-consider it at
this stage of the proceedings.
[20]
This point
in limine
can consequently not be upheld.
The
attestation of the founding affidavit:
[21]
It was argued on behalf of the Municipality that the founding
affidavit is fatally defective in that the attestation thereof
by the
Commissioner of Oaths reflects that the deponent to the founding
affidavit is female whilst it is evident from the contents
of the
affidavit that the deponent is male. Mr Ress relied on the judgment
in
Absa
Bank Limited v Botha N.O.
2013 (5) SA 563
(GNP)
[Absa Bank]
and submitted that the
application should be dismissed due to the non-compliance with the
Regulations Governing the Administration
of Oath or Affirmation,
issued in terms of section 10 of the Justices of the Peace and
Commissioners of Oaths Act, Act 16 of 1963.
Mr Mfazi, on the other
hand, submitted that there had been substantial compliance with the
requirements of the aforesaid Regulations
and that this point
in
limine
should therefore be
dismissed.
[22]
Regulation 2(1) determines as follows:
"2(1)
Before a commissioner of oaths administers to any person the oath or
affirmation prescribed by regulation he shall ask
the deponent,
a)
whether he knows and understands the
contents of the declaration;
b)
whether he has any objection to taking
the prescribed oath; and
c)
whether he considers the prescribed oath
to be binding on his conscience."
[23]
In the present matter the certificate of attestation was typed and
formed part and parcel of the contents of the affidavit,
with open
spaces to have been completed by the Commissioner of Oaths with
regard to where and when the commissioning occurred and
with further
open spaces for the signature of the Commissioner of Oaths, his or
her full names, designation and business address.
It is evident that
a constable of the South African Police Services commissioned the
affidavit. The affidavit also bears an official
stamp of the SAPS.
The said certificate reads as follows:
"Sworn
to and signed before me at SANDTON on the 21 day of DECEMBER 2021
after the deponent had acknowledged that she knows
and understands
the contents hereof;
a.
has no objection to taking the prescribed oath; and
b.
considers the oath as binding on her conscience."
[24]
The aforesaid
Absa Bank
- matter dealt with an
affidavit filed in support of an application for summary judgment. In
the said matter the Commissioner of
Oaths certified that the deponent
to the affidavit is a male whilst it was evident that she is a
female. The Court found that in
those circumstances the inference was
justified that the deponent had not signed the verifying affidavit in
the presence of the
Commissioner of Oaths. The Court further found
that the situation was compounded by the reference in the certificate
of balance
to the deponent as a manager and not as a
"manageress"
like the deponent described herself in the affidavit. The Court
subsequently found as follows at para [13]:
"...
the Court should not be placed in a situation where it is required to
speculate as to the gender of the deponent to an
affidavit and, more
particularly, whether the deponent had, in fact, sworn to and signed
the affidavit in the presence of the commissioner
of oaths. Simply
put, the Court should not be called upon to speculate on the question
of whether the verifying affidavit, in an
application for summary
judgment, is an affidavit or not. Accordingly, on the face of it, the
plaintiff's verifying affidavit is
inherently contradictory and
irregular, and for that reason I find that it does not constitute an
affidavit as contemplated in
rule 32(2) of the Uniform Rules of
Court."
[25]
In my view the said judgment needs to be considered against the
background that it is trite that because of the stringent nature
of
summary judgment the courts have often emphasized the need for strict
compliance with the rule. See
Maharai v Barclays National
Bank Limited
1967(1) SA 418 (A) at 423.
[26]
In
Malan v Minister of Police N.O. and Others
2019 (2)
SA 469
(GJ) the Court stated at para [42] of the judgment as follows
with regard to the aforesaid
Absa
Bank-judgment
:
"I
have some doubts about the correctness of the approach which was
adopted by the Court in the Absa Bank-matter because the
approach
adopted therein seems, with due respect, highly technical and based
on elevating form over substance "
The
Court further pronounced as follows at paras [43] to [44]:
"[43]
In the present matter the commissioner, as indicated earlier, does
not indicate the gender of Makgoka. In the certificate
he uses both
pronouns 'he/she'. Although he (Makgoka) does not indicate whether he
is a male or female in his affidavit, it is,
however, apparent from
the reading of the affidavit in its totality and from its context,
that Makgoka is a male and that it is
logical to conclude that the
pronoun 'he' should be read into it. In any case, in my view,
the fact that the correct pronoun
was not used to indicate the gender
of the deponent does not detract from the contents of the affidavit
which were deposed to by
a person. Reading it in its context it is
clear that its purpose was to persuade the court that the police
officer had a reasonable
belief that an offence was committed, in
that the applicant was conducting the business of gambling without
complying with the
law.
[44]
In light of the above, I find that failure by the commissioner to
indicate that Makgoka is a male or a female is not
a material
non-compliance as to warrant exclusion of the evidence in his
affidavit for that reason."
[27]
In
Firstrand Bank Limited v Briedenhann
2022 (5) SA 215
(ECGq) at para [49] the Court determined as follows:
"The
authorities referred to earlier make it plain that the Regulations,
safely couched in negative terms, are directory. Accordingly,
where·
those Regulations have not been followed and adhered to, a court has
a discretion in whether or not to admit the
affidavit. In such
circumstances a court will determine whether there has been
substantial compliance with the Regulations. That
determination is
one of fact, having regard to the circumstances of the case."
[28]
In
Land and Agricultural Development Bank of South Africa v
Winsbeslis Vyf (Pty) Ltd
(28604/21) [2022] ZAGPPHC 117
(16 February 2022) the applicant sought an order for the final
liquidation of the respondent. The
attestation clause in the founding
affidavit referred to "he/she" and the respondent relied on
the
Absa Bank
- decision and submitted that the
affidavit was not properly commissioned which rendered the
application defective. The Court found
as follows at paras [11] to
[12]:
"[11]
In my view the decision in Absa Bank v Botha is distinguishable to
the decision in Malan v Minister of Police N.O. and
Others where the
court held that reference to the pronouns 'he\she' in the attestation
clause was of no consequence if it is apparent
from the affidavit and
the context that the deponent was a male, and that it was logical to
conclude that the pronoun 'he' should
be read into it.
[12]
I, agree with theremarks by the Judge in the decision in Malan v
Minister of Police N.O. and Others that what is important
in the
affidavit is the contents thereof rather than failure to delete one
of the pronouns namely 'she\he', of course it depends
on the nature
of the matter.
[13]
In my view the defence of the respondent that the founding affidavit
is not properly commissioned must fail."
[29]
In the present matter, the deponent to the founding affidavit, Mr
Matsepe, is no stranger with regard to the pending dispute
between
the parties. He was also the deponent to the answering affidavit
filed in the first application. It is not denied that
he is a
director of Kena Media and therefore it is by no means strange that
he would depose to an affidavit on behalf of Kena Media.
Like I have
already mentioned earlier, the attestation certificate had been
pre-typed as part of the affidavit. It is not as though
the
Commissioner of Oaths, on his own accord, indicated the deponent to
be female. When the totality of the facts and circumstances
are
considered I have no reason to question whether Mr Matsepe is in fact
the person who signed the affidavit and/or whether he
signed it in
the presence of the Commissioner of Oaths.
[30]
In my view there was substantive compliance with the Regulations and
this point
in limine
can therefore not be upheld.
The
authority of Mr Matsepe:
[31]
In the founding affidavit Mr Matsepe stated that he is a director of
Kena Media and he further averred as follows in paragraph
1.2 of the
founding affidavit:
"I
am duly authorised to depose to this affidavit in an application
brought by Mangaung Metropolitan Municipality under the
above case
number. As proof of my authority I annex hereto the resolution of
meeting of the Directors of the first respondent (sic)
marked
Annexure 'TM1'."
[32]
The aforesaid Annexure "TM1" bears a heading
"Kena
Media Proprietary Limited''
and reads as follows:
"ROUND
ROBIN RESOLUTION:
On
this the 21st day of December 2021 held at Johannesburg we Lerumo
Maisela and Tshepo Matsepe, the Directors of Kena Media Proprietary
Limited ('the company') hereby approve the following resolution:
THAT
Mr
Tshepo Matsepe is hereby authorized to sign all documents necessary
and to do all things necessary relating to the current litigation
against Mangaung Meropolitan Municipality and further to institute
any further action, should same be deemed necessary."
At
the foot of the resolution, both on the left hand side and on the
right hand side thereof, it reflects a short line which appears
to be
a space for signatures and underneath the two respective lines, both
on the left side and on the right side, the word "Director"
is reflected underneath each of those lines. On the line on the left
hand side the typed name
"Lerumo Maise/a"
appears
above the line and on the right hand side a signature appears above
the line.
[33]
In response to the aforesaid allegations on behalf of Kena Media, the
Municipality responded as follows in his answering affidavit:
"27.
AD PARA 1
27.1
It is denied that Matsepe is duly authorised to depose to this
affidavit on behalf of the applicant.
27.2
The Resolution annexed to the founding affidavit marked annexure
'TM1' is fatally defective.
27.3
Further legal argument will be rendered at the hearing of the
application in this regard.
27.4
It is accordingly denied that Matsepe has locus standi or is duly
authorised to depose to the founding affidavit
on behalf of the
applicant.
27.5
Accordingly, it will be requested at the hearing of the application
that the current application for spoliation
be dismissed on this
basis alone."
[34]
Although the aforesaid challenge of the deponent's authority was also
referred to as the said deponent's lack of
locus standi,
authority
and
locus standi
are two different issues. In this regard the
following is stated in
Erasmus:
Superior
Court
Practice,
D.E. van Loggerenberg,
Jutastat at RS 18, 2022, D1-96:
"It
is submitted that authorisation to institute action or motion
proceedings should not be conflated with locus standi in
iudicio.
Authorisation concerns a question whether a party is properly before
the court in legal proceedings. Locus standi materially
concerns a
direct interest of a party in the relief sought in the legal
proceedings."
[35]
The deponent's authority to have deposed to the affidavit on behalf
of Kena Media, is neither here nor there. No such authority
is
necessary. In
Ganes and Another v Telecom Namibia Limited
2004 (3) SA 615
(SCA)
[Ganes]_at
para [19] the Supreme
Court of Appeal determined as follows:
"....
In my view, it is irrelevant whether Hanke had been authorised to
depose to the founding affidavit. The deponent to an
affidavit in
motion proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the institution
of the proceedings and
the prosecution thereof which must be authorised."
[36]
Insofar as the Municipality attempted to challenge the authority of
the deponent to the founding affidavit to have launched/instituted
the application on behalf of Kena Media, the Court found in
Ganes,
supra,
at para [19] as follows:
"...
In any event, Rule 7 provides a procedure to be followed by a
respondent who wishes to challenge the authority of an attorney
who
instituted motion proceedings on behalf of an applicant. The
appellants did not avail themselves of the procedure so provided.
(See Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705 C- J.)"
[37]
In
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) the authority of the person who deposed to the
affidavit on behalf of the respondent (the applicant in the court a
qua)
was challenged. In the said matter the appellant directed
its attack against a resolution of the municipal council which
authorised
the deponent to have launched proceedings of the kind in
that matter. The Court determined as follows at para [14]:
"At
the hearing of the appeal, council for the appellants conceded that
she could not support this kind of appeal. I think
the concession was
fairly made. The issue raised had been decided conclusively in the
judgment of Flemming DJP in Eskom v Soweto
City Council
1992 (2) SA
703
(W), which was referred to with approval by this Court in Ganes
and Another v Telecom Namibia Limited
2004 (3) SA 615
(SCA) at 624 I
- 625 A.
The import of the judqment
in Eskom
is
that the remedy of a respondent who wishes to challenge authority of
a
person
allegedly acting on behalf of the purported applicant is provided for
in
Rule
7(1) of the Uniform Rules of Court
" (Own emphasis)
[38]
The Court further stated as follows at paragraph [16] of the said
judgment:
"However,
as Flemming DJP has said, now that the new Rule 7(1) remedy is
available, the party who wishes to raise the issue
of authority
should not adopt the procedure followed by the appellants in this
matter, i.e. by way of argument based on no more
than a textural
analysis of the words used by a deponent in an attempt to prove his
or her authority. This method invariably resulted
in the costly and
wasteful investigation, which normally leads to the conclusion that
the application was indeed authorised. After
all, there is rarely any
motivation for deliberately launching an unauthorised application. In
the present case, for example, the
respondent's challenge resulted in
the filing of pages of resolutions annexed to a supplementary
affidavit followed by lengthy
technical arguments on both sides
"
[39]
The judgment in the matter of
ANC Umvoti Council Caucus and
Others v Umvoti Municipality
2010 (3) SA 31
(KZP)
dealth with all three the aforesaid judgments and determined as
follows at paras [14] and [27] to [29]:
"[14]
The question is, rather, whether an applicant is obliged to prove, on
the papers, that authority has been given to initiate
litigation
where the applicant is an artificial person....
27]
... Whether or not the litigation has been properly authorised by the
artificial person named as the litigant would not
be dealt with by
means of evidence led in the application. If clarity is required, it
should be obtained my means of Rule 7(1)
since this is a procedure
which safeguards the interests of both parties. ....
28]
... It is further my view that the application papers are not the
correct context in which to determine whether an applicant
which is
an artificial person has authorised the initiation of application
proceedings. Rule 7(1) must be used. This means that
I disagree with
Mr Gajoo's submission that Rule 7(1) provides only one possible
procedure and that, if the respondents elects to
challenge the matter
of authority on the application papers, the applicant is required to
prove such authority on the papers.
29]
There was no challenge in terms of Rule 7(1) in the application which
is the subject of this appeal. The appropriate
procedure was
therefore not used by the appellants. It was accordingly not
necessary for the applicant to prove the authority to
initiate the
application, nor appropriate to attempt to do so on the papers. It
was also not necessary for the court a quo to make
a finding relating
to authority on affidavits delivered in the matter. Since there was
no challenge in the required manner to the
authority of the
respondent's attorney who signed the notice of motion and initiated
the application in the accepted way, this
court does not have to deal
with the question of authority. I am therefore of the view that the
appeal on this issue must fail."
[40]
In the present matter there was no challenge of the deponent's
authority by means of Rule 7(1) and I therefore do not have
to deal
with the question of authority.
[41]
This point
in limine
can consequently not be upheld.
Merits
of the application:
Locus
standi
of Kena Media, non-joinder of PACOFS and "peaceful and
undisturbed possession":
[42]
In paragraph 29.16 of the answering affidavit the Municipality
averred as follows:
"PACOFS
have not been cited as a party to these proceedings and the applicant
accordingly does not possess the required locus
standi to bring this
current application alone as it was PACOFS, alternatively PACOFS and
the applicant jointly who were in alleged
peaceful and undisturbed
possession."
[43]
Although the issues of
locus standi
and non-joinder are in essence also
points
in limine,
I
deem it apposite to deal with them in conjunction with the
substantive requirement of whether Kena Media was in peaceful and
undisturbed possession of the billboard, since in the present matter
the three issues are intertwined.
[44]
In paragraph 22 of the answering affidavit the Municipality referred
to Annexure "TM3" attached to the affidavit
filed on behalf
of Kena Media in the counter-application, which forms part of the
first application. It is alleged by the Municipality
that in terms
thereof Kena Media
"concedes that it is not the owner of the
sign but that its function
was
merely to refurbish the sign".
The Municipality further alleged in paragraph 29.15 of the answering
affidavit that Kena Media entered into a Joint Venture Agreement
with
PACOFS and that it appears that the sign belongs to PACOFS.
[45]
In its replying affidavit Kena Media alleged as follows:
"8.1
I am advised that in the spoliation application, all Kena Media needs
to establish is that it was in peaceful and undisturbed
possession at
the time it was dispossessed. These elements, I am told, appear from
the face of the papers because the Municipality
launched an
application [the first application] against Kena Media for the
removal of the signage as owner and possessor of the
signage.
8.2
I am advised and contend that ownership of the signage need not be
established in this application...
8.3
I however wish to highlight to this court that in terms of the
agreement between the applicant
and PACOFS, the 'refurbishment of the
site' entails replacing the old PACOFS signage with a digital signage
belonging to Kena Media,
it is accordingly the applicant who had the
undisturbed possession of the signage."
[46]
From a reading of the Memorandum of Understanding entered into
between Kena Media and PACOFS, attached to the counter
application in the first application as Annexure "TM3", the
parties recorded that they have identified a number of PACOFS
notice
boards which were to be converted into billboards for the purpose of
third party advertising. It was further recorded that
PACOFS gives
consent to Kena Media to convert its notice boards into billboards.
[47]
The first application was directed at Kena Media as first respondent
and one Paseka Molelengoane as second respondent. In the
said first
application the Municipality alleged that Mr Molelengoane
"was
at all relevant times acting on behalf or on instructions of the
first respondenf'.
From the totality
of the papers it is evident that Mr Molelengoa was the manager of
Kena Media at the time. On the Municipality's
own version in the
first application Molelengoane, on behalf of Kena Media, submitted an
"application for outdoor
advertising
sign"
to the Municipality on behalf of Kena Media during or about May/June
2021 in relation to the present billboard. This application
is
annexed to the founding affidavit filed in the first application as
Annexure "FA3". It was indicated that the billboard
was to
be situated at the corner of Henry Street and Parfitt Road, the owner
of which property is
"Mangaung
Metropolitan Municipality PACOFS".
The
application further indicated that it related to the replacing of an
existing sign. The Municipality further alleged in the
said affidavit
that Molelengoane, acting on behalf of Kena Media, erected the
billboard or caused it to be erected on the Municipality's
land at
the corner of Henry Street and Parfitt Avenue. This was during or
about May 2021, alternatively June 2021. The Municipality
considered
the billboard to be an illegal structure and therefore sent an e-mail
on 30 June 2021 to Mr Molelengoane, annexure "FA1"
to the
founding affidavit in the first application (also attached to the
answering affidavit in the present application as annexure
"MMM3"),
requesting him to remove the
"illegal
structure (electronic billboard) erected
on
council
property''.
When
he failed to do so, a letter dated 14 July 2021, attached to the
founding affidavit filed in the first application as Annexure
"FA4",
was addressed by the Municipality's attorneys at the time Mr
Molelengoane in his capacity as
"General
Manager''
of Kena Media. In the said
letter reference was made to an application by
"Kena
Media"
to have the sign erected
and displayed at the said property. It was demanded that the
structure be removed since it was in contravention
of section 10(1)
of the By laws of the Municipality. From the follow-up
events and the subsequent correspondence between
the attorneys of the
Municipality and the attorney of first instance of Kena Media, it is
evident that it was accepted by the Municipality
that Kena Media was
the entity who was in control and possession of the billboard. This
is further confirmed by the fact that the
Municipality issued the
first application against Kena Media. The Municipality itself did not
make any mention of any rights and/or
obligations pertaining to the
billboard by PACOFS.
[48]
It is trite that in order to obtain a spoliation order two
allegations must be made and proved:
(a)
that the applicant was in possession of the property; and
(b)
that the respondent deprived him of the possession forcibly or
wrongfully against
his consent.
See
Blendrite (Pty) Ltd and Another v Moonisami and Another
2021 (5) SA 61
(SCA) at para [6]. The said prove needs to be on a
balance of probabilities.
[49]
In spoliation proceedings a court does not question the lawfulness of
an applicant's possession, nor the question of ownership.
In
Erasmus:
Superior Court Practice,
supra,
at RS 18, 2022,
D7-7 the following is stated with regard to the requirement of
possession:
"In
spoliation proceedings the court is not concerned with the lawfulness
of the applicant's possession. In other words, the
applicant must
show not that he was entitled to be in possession, but that he was in
de facto possession at the time of being despoiled....
The possession
which must be proved is not possession in the juridical sense; it may
be enough if the holding by the applicant
was with the intention of
securing some benefit for himself, accompanied by the physical
element of corpus ordidentio. The physical
element 'implies physical
control rather than physical apprehension'. It is therefore, not
necessary that the possession be continues".
[50]
Based on n 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 f :>r 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.
Wrongful
deprivation of possession:
[52]
It is common cause between the parties that the billboard was removed
by the Municipality/on instructions of the Municipality.
[53]
The parties also appear to be
ad idem
that the first
application was brought by the Municipality in terms of section 10 of
the By-laws.
[54]
In the answering affidavit filed in the present application the
Municipality alleged that in terms of section 25(5) of the
By-laws it
was entitled to have removed the billboard. The Municipality relied
on the following facts and circumstances in support
of its
contention:
1.
When the first application was launched, the billboard was not fully
operational yet.
2.
On 30 June 2021 at 11:05 the Municipality received an email from the
First Engineer:
Traffic Engineering of the Mangaung Traffic
Department with regard to the billboard, which email,
inter
alia,
stated the following:
"We
have received complaints and enquiries regarding this obviously
unsafe and non-compliant installation from members of the
public and
concerned safety specialists in the city. It is unclear at this stage
whether this installation had been approved in
some way by the
municipality, or whether it is a rogue advertiser that is acting in
contravention of the Mangaung Outdoor Advertising
By-laws. However,
it is clear that the installation violates the municipal by-laws,
SAMOAC provisions and national legislation.
Of concern is the fact
that the latest billboard is being erected within the functional
boundaries of the relevant traffic intersection
and directly in the
sight line of the traffic signals at the intersection. It is thus
obviously non-compliant with a very high
traffic safety risk factor.
You
are kindly requested to take the necessary steps to have the
installation removed as a matter of urgency, before the advertised
has the opportunity to start advertising. The by-laws provide the
necessary backing for the municipality to remove the installation
at
the cost of the advertiser, should the advertised refuses or fails to
remove the installation."
3.
On the same date, 30 June 2021, at "02:51 PM" the
Municipality addressed
an email to Mr Molelengoane regarding
"Kena
Media structures in
MMM'
and
requested documentation and information regarding such structures at
certain specified locations. The following was also stated
in the
said email:
"Also,
as discussed and explained to you, the Illegal structure (Electronic
Billboard) erected on Council property on Erf 18/26408,
Corner of
Henry Street and Parfitt Avenue should please be removed as soon as
possible."
4.
On or about 25 November 2021 an inspection
in
loco
was held at the corner of Henry
and Parfitt Street by,
inter alia,
Mr
Paul Monama of the Legal Department of the Municipality and Mr
Suleman, the attorney of record of the Municipality. According
to the
Municipality the following findings were made during the inspection:
"30.3.4
The electronic billboard is operational and is situated on an
arterial road (i.e. Parfitt Street).
30.3.5
The distance of the electronic billboard from the centre of the
intersection (Parfitt Street) to its current location is
approximately 46 metres.
30.7
As the sign electronically flashes it distracts motorists and road
users as it is not 100 metres in distance from the intersection
of
the arterial road. Furthermore, it is situated directly behind the
traffic signal and has regular changing animations and displays
as
well as subliminal flashes."
Confirmatory
affidavits of Mr Monama and Mr Suleman regarding the observation of
the aforesaid findings during the inspection were
attached to the
answering affidavit of the Municipality.
5.
On the basis of the aforesaid findings the Municipality,
inter
alia,
stated as follows in its
answering affidavit:
"30.6
Furthermore, and in total contravention of section 7(e) of Schedule 4
of the By-laws, the electronic billboard does not
comply with the
requirements as stipulated therein in respect of the distance from
the centre of the intersection at which a sign
is permitted to be
erected and/or displayed on an arterial road. This By-law was
introduced for the benefit and safety of all motorists
and all
pedestrians utilising the intersection.
30.11
Furthermore, section 25(5) of the
By-laws states as follows:
'The
Municipality may, without prior notice and without a Court Order,
remove, confiscate and destroy any sign if the sign constitutes
a
danger to life or property or causes an obstruction of visibility to
traffic or to a road traffic sign on or adjacent to any
public road.'
30.12
The respondent was entitled to remove
the sign without a Court Order and the respondent accordingly did so
as the signage constituted
an immediate danger to all motorists and
users of the relevant intersection. The decision to remove the
signage immediately in
terms of section 25(5) of the By-laws was
taken by the respondent after the findings of the inspection on the
25th November 2021
were conveyed to it.
30.19
In such circumstances and despite the previous application [the first
application] having not been finalised, there is nothing
precluding
the respondent from proceeding in terms of section 25(5) of its
By-laws in circumstances where it deems that immediate
action is
necessary.
30.22
Accordingly, the Respondent has throughout this application acted
lawfully and was fully entitled in terms of its By-laws
to remove the
sign."
6.
The Municipality also dealt with certain other aspects of the
billboard and the
erection thereof which, according to the
Municipality, constituted transgressions of different sections of its
By-laws. However,
in view of the findings I will be making later in
the judgment, I do not deem it necessary to deal with same.
[55]
Mr Mfazi referred to the judgment in
Van Rhyn and Others N.N.O.
v Fleurbaix Farm (Pty) Ltd
2013 (5) SA 521
(WCC) at
para [7] where the Court confirmed that:
"Deprivation
is unlawful if it takes place without due process of law, or without
a special legal right to oust the possessor."
He
submitted that a spoliation order is meant to prevent the taking of
possession other than in accordance with the law. Since the
Municipality resorted to self-help when it removed the billboard
without a Court Order, it constituted unlawful deprivation of
Kena
Media's peaceful and undisturbed possession of the billboard.
[56]
Mr Ress relied on the unreported judgment of
Midvaal Local
Municipality v Meyerton Golf Club
(A3038/14) [2014]
ZAGPJHC 235 (15 October 2014)
[Midvaal]
and submitted that
spoliation cannot be found to have occurred in circumstances where a
respondent acts in terms of a statutory
right to dispossess.
[57]
In
African Billboard Advertising (Pty) Ltd v North and South
Central Local Councils, Durban
2004 (3) SA 223
(N)
[African Billboard]
the applicant erected advertising signs on
property owned by Spoornet, situated in the Durban area. The
respondent local authority,
acting under its building By-laws in
force at the time, placed the applicant on terms to remove the
offending signs. When the applicant
did not comply with the notice
requesting such removal within 14 days, the respondent authorised a
contractor to remove the signs.
That prompted a spoliation
application which served before the Court a
quo.
It was common
course that the respondent did not obtain a Court Order prior to the
removal. The Court a
quo
dismissed the spoliation application.
The question which served before the Court a
quo
and also
before the Full Court on appeal was whether the respondent was
entitled to enter upon Spoornefs property and remove the
signs
without such a Court Order. The Court (of appeal) found as follows at
228 E - 229 A:
"The
by-law in question confers a discretion on the city engineer to
direct any person who has erected a sign either in contravention
of
the by-laws or without having received permission to erect such sign
in the first place to remove the sign within 14 days from
the date on
which notice is given. In the event of non compliance s
7(3) empowers the city engineer to remove the sign.
I
am not
persuaded
that the framers of the bylaws intended that this should occur
without
a
Court order. It was a simple matter to say that no Court order would
be
required
.
Our Courts have in the past applied rules against self-help strictly.
...
The
canons of construction laid down by our Courts require the statutory
provision to stipulate in clear language that the dispossession of
an individual's
property can take place without an order of
Court. The by-law in the present
case does not do so and I am
of the view that the removal in question ought not
to have
been done without an order of Court."
(Own emphasis)
The
appeal was consequently upheld, the order of the Court a
quo
was
set aside and it was declared that the removal of the signs was
unlawful.
[58]
The principles enunciated in
African Billboard
were confirmed
and followed in
Midvaal
whereupon the Court found at paragraph
[14] of the judgment that
"the appellant is not exonerated
from obtaining
a
court order;
the by-laws
do not
absolve
the appellant
"
[59]
Contrary to the circumstances in the last-mentioned two cases,
section 25(5) of the By-laws in the present matter explicitly
makes
provision for action by the Municipality without notice and without a
Court Order in certain specified circumstances. I deem
it necessary
to repeat the contents thereof:
"25(5)
The municipality may, without prior notice and
without a Court
order,
remove, confiscate, and destroy any sign
if the sign
constitutes a danger
to life or property, or causes an
obstruction of visibility to traffic or to a
road traffic sign
on or adjacent to any public road."
(Own emphasis)
[60]
Based on the contents of the answering affidavit with regard to the
danger the location of the billboard caused to motorists
and
pedestrians who utilised the intersection, already alluded to above,
it is evident that it is the Municipality's case that
it was entitled
to have removed the billboard without a Court Order in the
circumstances.
[61]
The necessity for section 25(5) of the By-laws becomes evident when
considered against the background of the preamble to the
By
laws and its purpose, which are stipulated,
inter alia,
to be
the following:
"..
.WHEREAS
the Constitution authorizes and empowers municipalities to
administer the local government matters listed in Part B of Schedules
4 and 5, which include Billboards and the display of advertisements
in public places and any other matter assigned to it by national
or
provincial legislation, by making and administering By-laws for the
effective administration of these matters; and
WHEREAS
the
National Road Traffic Act of
1996
, as amended, and the Regulations thereto, aim to promote traffic
safety, the By-laws is
[sic]
also
aimed at contributing towards an
advertising
environment which does not increase
traffic risks or endanger the lives
of pedestrians and motorists
; ... "
(Own emphasis)
and
"2.
Purpose of By-laws
The
Mangaung Metropolitan Municipality must exercise its powers under
these By-laws in the interests of amenity,
public safety
and
business interests, and must take into account the considerations
that this By-Law is to ensure that: -
(a)
signs or advertisements
may not
constitute a danger or nuisance to
members
of
the
genera
l
public
.
whether
by
way
of
obstruction
,
interference with traffic signals or
with the visibility of the signals
,
light nuisance or otherwise, thereby promoting the image of the
Municipality and enhancing the civic pride of its inhabitants.
(b)
." (Own emphasis)
[62]
The aforesaid considerations of traffic safety and hence public
safety also find expression in
section 7
of Schedule 4 (Electronic
Sign) to the By-laws, which Schedule the Municipality contends is
applicable to the billboard in this
instance:
"The
provisions of
sections 21(1)(a)
-(c), and the following conditions
apply to the position of a sign:
a.
No more than one sign may be displayed on a site;
b.
a sign consisting of a single board must be displayed perpendicular
to or at
an angle of up to 30 degrees to the direction of oncoming
traffic;
c.
where two boards are joined together, the sign must be displayed with
the axis
of symmetry perpendicular to the direction of oncoming
traffic;
d.
a maximum of two signs may be displayed in the vicinity of a road
intersection;
when the signs are located on different sides of the
road;
e.
the display of a billboard is not permitted within a radius of 100
meters from
the centre of an intersection on an arterial road and
within a radius of 50 meters from the centre of an intersection on
any lower-order
road."
[63]
In my view
section 25(5)
is precisely the type of By-law which the
Court in the
African
Billboard-judgment had in mind when it
stated as follows at 229 B - C of the judgment:
"I
am mindful of the fact that there may be urgent cases such as a sign
which is erected in such a way that it constitutes
a danger to the
public or causes an obstruction of visibility to traffic moving on a
public road. Such a situation may call for
removal forthwith. It
seems to me that the by-law in question, in as much as it affords 14
days' notice, is not intended to cater
for the above type of urgent
situation. In my view the respondent should give consideration to
amending the by-law in question
which should provide for an approach
to Court in all situations save for those as envisaged above where
the public interest would
require immediate removal."
[64]
There is consequently no reason why the Municipality could not have
relied and acted upon
section 25(5)
subject to the factual
circumstances mentioned therein being present. In this regard Mr Ress
correctly pointed out that Kena Media
did not in its replying
affidavit challenge the correctness of the findings made during the
inspection conducted by the Municipality,
nor the correctness of the
allegations that the billboard constituted an immediate danger to all
motorists and users of the relevant
intersection.
[65]
The Municipality's reasons and entitlement to have utilized
section
25(5)
in the circumstances therefore remain unchallenged.
[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.
Conclusion:
[68]
The rule
nisi
consequently stands to be discharged.
Costs:
[69]
Mr Ress contended that should the application fail, Kena Media should
be ordered to pay the costs of the application on a scale
as between
attorney and client since the application was bad in law and Kena
Media could rather have enrolled the first application
and continued
with its counter-application therein.
[70]
The usual order pertaining to costs is that costs follow the outcome
of the matter. However, it is also trite that the awarding
of costs
is in the discretion of the Court, which discretion is to be
exercised judicially.
[71]
I take cognisance of the fact that
section 25(5)
authorises the
Municipality to have removed the billboard without prior notice to
Kena Media. However, it is important to note
that the word
"may''
is used in the said section, which is indicative of the exercise
of a discretion by the Municipality, both in relation to the absence
of prior notice and the absence of a Court Order.
[72]
In the answering affidavit the Municipality referred to the email
sent by the Municipality to Kena Media, dated 30 June 2021,
Annexure
"MMM3" to the answering affidavit, which I already referred
to in paragraph [47] above. It further stated in
its answering
affidavit:
"30.4
However, despite the written request to the applicant to remove the
structure, the applicant failed to do so. In terms
of section 25(5)
of the bylaws, there was no obligation upon the respondent to request
the applicant to remove the signage."
[73]
It is evident from the date and the contents of the aforesaid email
that it did not emanate from the findings made during the
inspection
by the Municipality, nor was it intended to be any form of pre-cursor
to the Municipality's actions in terms of section
25(5) of the
By-laws.
[74]
At the time when the Municipality removed the billboard, the first
application was pending between the parties. Written communication
had been exchanged between the parties themselves, as well as between
their respective attorneys at the time. It would therefore
have been
very easy for the Municipality to have addressed a notice to Kena
Media prior to the removal of the billboard. This is
moreover so
considering that the inspection occurred on 25 November 2021 and the
removal of the billboard only occurred on 20 December
2021. There was
consequently ample time and opportunity to have addressed a notice of
demand to Kena Media and/or its attorney
of record in the pending
application, advising it of the findings made during the inspection
and of the Municipality's intention
to remove the billboard.
[75]
In my view the Municipality's failure to have done so in the light of
the above circumstances constituted, in my view. an improper
exercise
of their discretion in terms of section 25(5) in so far as prior
notice is concerned. Had proper notice been given to
Kena Media, the
present application may have been prevented.
[76]
In the circumstances I consider it fair and reasonable that each
party is to pay its own costs, which costs are to include
the
reserved costs of 23 December 2021.
Order:
[77]
I consequently make the following order:
1.
The rule nisi is discharged and the
application is dismissed.
2.
Each party is to pay its own costs.
C.
VAN ZYL, J
On
behalf of the applicant: Adv.
L. Mfazi
Instructed
by
:
Mlozana
Attorneys
Bloemfontein
On
behalf of the respondent:
Adv. S.L. Ress
Instructed
by
:
Ngwane
Attorneys
Bloemfontein
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
4027/2021
Before
the Honourable Justice
C VAN ZYL
On
the
16th
day of
AUGUST 2022
In
the matter between:
KENA
MEDIA
PTY
LTD
Applicant
and
MANGAUNG
METROPOLITAN
MUNICIPALITY
Respondent
Having
considered the documents before the court and having heard the legal
practitioner/s,
IT
IS ORDERED THAT:
1.
The rule
nisi
is
discharged and the application is dismissed;
2.
Each party shall pay its own costs.
BY
ORDER OF THIS COURT
COURT
REGISTRAR
MLOZANA ATTORNEYS INC.
NGWANE
ATTORNEYS INC.