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[2019] ZAGPPHC 252
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City of Tshwane Metropolitan Municipality and Another v Lesego Media t/a Y Media and Others (82834/2014) [2019] ZAGPPHC 252 (28 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case number: 82834/2014
Heard on: 20 June 2019
Date
of judgment: 28 June 2019
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
First Applicant
MEC
FOR ROADS AND TRANSPORT
GAUTENG
PROVINCE
Second Applicant
And
LESEGO
MEDIA CC t/a Y MEDIA
First
Respondent
JINJA
2 OUTDOOR ADVERTISING (PTY) LTD
Second Respondent
OW
OUTDOOR (PTY) LTD
Third Respondent
JUDGMENT
SWANEPOEL
AJ:
INTRODUCTION
[1]
This matter commenced as an urgent
application before Tuchten J on 14 November 2014. First Applicant
("Tshwane") sought
an order against First Respondent
("Lesego"), interdicting Lesego from proceeding with the
erection and installation
of gantry structures over Garsfontein Road,
and for an order that it should demolish all gantry structures that
had been erected
in contravention of sections 2 and 29 of Tshwane's
Outdoor Advertising By-Laws, and section 4 of the National Building
Regulations
and Building Standards Act, Act 103 of 1977 ("the
Act"). In the event that Lesego failed to comply with the
aforesaid
order, Tshwane sought leave to demolish the structures
themselves. Tshwane also sought a costs order. At that stage 2n d
Applicant
("Gautrans") and Second and Third Respondents
("Jinja" and "OW" respectively) were not yet
parties
to the application.
[2]
An order was granted simply stating that
Lesego was interdicted in terms of prayer 2 of the notice of motion
from proceeding with
the erection of the structures. Costs were
reserved. This judgment relates solely to the costs of this
application, the joinder
applications, and the urgent application.
BACKGROUND
[3]
Lesego did not oppose the urgent
application, apparently because it had not come to its attention
before the order was granted.
Some four weeks weeks after the urgent
order was granted, on 17 December 2014, Tshwane formally advised
Lesego that its application
to erect the gantries had been rejected
due to Lesego's failure to obtain the consent of the landowner on
which the gantries were
to be erected. Nonetheless, Lesego continued
with the erection of the structures.
[4]
At some stage the order came to Lesego's
attention, and during or about September 2015 (the date of service is
not clear), it filed
an answering affidavit. The issues raised in the
answer are not relevant to the order that I intend to make, as the
merits of the
application are conceded, but are somewhat relevant to
the issue of costs.
[5]
Lesego took two preliminary points,
firstly, that the founding affidavit had been incorrectly
commissioned, and secondly, that the
application had not been
properly served. On the merits of the application, Lesego alleged
that Tshwane's by-laws were a nullity.
The argument went that the
by-laws relating to the erection of advertising structures that were
"buildings " as defined
by the Act had to be approved by
the Minister of Economic Affairs and Technology. The by-laws had not
been so approved, and it
was contended that the by-laws were
therefore a nullity. Lesego also complained that the decision to
refuse consent for the erection
of the gantries offended the
principles of natural justice. It is not necessary to catalogue
Lesego's complaints in this regard.
[6]A further point contended for
was that, even if the by-laws were not a nulltiy, the by- laws did
not apply to these gantries
due to the fact that they were not
visible from public spaces within Tshwane's municipal area. Of
significance is that
in
its answer, Lesego produced two
letters allegedly written by one Nazreen Sedibeng (" Sedibeng")
an employee of Gautrans,
the owner of the land which the roads
traverse, authorizing the erection of structures on Delmas and
Garsfontein Roads. Lesego's
contended that the refusal of consent by
Tshwane had been based on the incorrect belief that Gautrans had not
consented to the
erection of the structures on its land.
[7]
On 17 March 2016 Gautrans applied to
intervene in the proceedings as second applicant on the grounds that
as property owner of the
land it had a direct and substantial
interest in the matter. Sedibeng also stated in the affidavit in
support of Gautrans' application
that she had not signed the consent
letters, and that they were forgeries. Gautrans denied that it had
consented to the erection
of the gantries. Gautrans was subsequently
joined as second applicant.
[8]
On 5 July 2016 Tshwane filed its
replying affidavit and it took issue with Lesego's contentions, but
more importantly, the reply
contained an affidavit by Sedibeng in
which she categorically denied that she had signed the two letters
giving consent for the
erection of the gantries. She stated again
that the letters were forged.
[9]
On 14 March 2017 Jinja and OW applied to join the proceedings as
second and third
respondents respectively. They contended in the
founding affidavit in support of the application that pursuant to a
partnership
agreement, they were partners with Lesego in a joint
venture for the erection of the gantries. Jinja is apparently
responsible
for the day-to-day administration of the affairs of the
partnership and for the administration of its finances. Jinja and OW
had
allegedly taken the "consent" letters of Gautrans as
sufficient authorization for the erection of the gantries, and had
financed the manufacture and erection thereof. They alleged that the
affidavit of Sedibeng had come "as a bolt from the blue",
that they had confronted Lesego with the allegations of fraud, and
had been assured that the consent letters were not forgeries.
[10]
Tshwane initially opposed the intervention application, but withdrew
its opposition four days
later. Jinja and OW were then joined as
second and third respondents respectively. In an answering affidavit,
Jinja repeated its
assertion that the allegati6n that the consent
letters were forgeries had taken it by surprise. Jinja also made the
submission
that it was unable to respond to the forgery allegations
due to Gautrans not having delivered a founding affidavit. The
purpose
of the answering affidavit is unclear, but it seems to
suggest that either the allegations of fraud should be ignored, due
to the
absence of a founding affidavit by Gautrans, or the dispute
should be referred to oral evidence. Furthermore, Jinja recorded that
it abided the decision of the Court. I am not certain why Jinja and
OW found it necessary to intervene in the proceedings if their
intention was all along to abide the decision. I also do not know
what the intention actually was in filing the answering affidavit.
Jinja did not answer to any of the allegations in the founding
affidavit, as one would have expected it to have done, and it did
not
advance any reason why the interdict should not be granted. OW did
not deliver an answering affidavit.
[11]
On 7 June 2019 Lesego filed a notice that it abided by the Court's
decision. Lesego was not represented
at the hearing: Counsel for
Jinja and OW did not take issue with the granting of a final
interdict. Counsel’s only contention
was that Jinja and OW
should not be mulcted in costs. Applicants' respective counsel argued
that a final order should be granted
against all three respondents,
and that respondents should be ordered to pay the costs of the
application, including the costs
of the urgent application.
[12]
Jinja and OW's suggestion that they were
surprised by the allegations of fraud, and that they did not know
that they were not entitled
to erect the gantries, rings hollow. As
far back as 6 February 2015 Tshwane's attorneys advised Jinja of the
existence of a court
order prohibiting the further erection of the
gantries, and demanding their immediate removal. Jinja took a
distinctively aggressive
view of the demand. In a letter to Tshwane
it disputed that the by laws were at all applicable to the
gantries as they were
allegedly not erected in a place or on a
building that was visible from a public space. Jinja asserted that it
had valid consent
from Gautrans to erect the gantries, and it
contended that its preliminary investigations indicated that Tshwane
had not followed
proper legal procedures in relation to the
promulgation of its by-laws, rendering the by laws null and
void.
[13]
Jinja now alleges that it discussed the
allegations of fraud with Lesego when the allegations arose. It
professes to be surprised
and taken aback that Lesego had not replied
to the allegations. The question rather is why Jinja and OW believed
that it was appropriate
to erect large gantries without council
consent in the first place. Even if they believed that the land owner
had consented to
the construction, they must have realized that
Tshwane also had to approve the erection of the structures.
Furthermore, once they
were advised that the consent letters had been
forged, they should have approached Gautrans to determine for
themselves where the
truth lay.
[14]
In my view, from the outset Jinja and OW
aligned themselves with the approach taken by Lesego. They joined the
proceedings on the
basis that Tshwane did not have jurisdiction over
the gantries, and that it was consequently not entitled to an
interdict. Although
Jinja and OW have subsequently abided by the
decision of the Court, having realized that they did not have
Gautrans' consent, they
should have agreed to the granting of the
order. It was consequently necessary for applicants to set the matter
down on the opposed
roll. For that reason I have taken the view that
the respondents should be jointly liable for the costs of the
application.
[15] I
therefore make the following order:
15.1
Respondents
are interdicted and restrained from proceeding with the erection of
18m x 4.5 m monopole gantry structures over Garsfontein
Road at a
distance 125 m South East of De Villabois Mareuil Drive and over
Delmas/Rigel Avenue, at a distance of 220m north of
Nossob Street,
Pretoria.
15.2
Respondents
are ordered to demolish any structures that have already been erected
in contravention of sections 2 and 29 of the first
applicant's
Control of Outdoor Advertising by- laws and section 4 of the National
Building Regulations and Building Standards Act,
1977.
15.3
Respondents
are ordered to remove any material used for the erection of such
gantry structures from the abovementioned sites.
15.4
Should
respondents fail to comply with this order within 15 days, applicants
may demolish the gantry structures and remove same
from the sites.
15.5
Respondents
shall pay the applicants' costs of the application, the urgent
application, and the applications to intervene, jointly
and
severally, the one paying the other to be absolved.
J.J.C. Swanepoel
Acting
Judge of the High Court,
Gauteng
Division, Pretoria