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[2019] ZAFSHC 249
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Vermeulen Verf CC and Another v DIY Superstores (Pty) Ltd and Others (3974/2019) [2019] ZAFSHC 249 (13 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3974/2019
In
the matter between:
VERMEULEN
VERF
CC
1
st
Applicant
(Reg.
No. 1996/016122/23)
LAMININ
COATINGS (PTY)
LTD
2
nd
Applicant
(Reg.
No. 2012/103111/07)
and
DIY
SUPERSTORES (PTY)
LTD
1
st
Respondent
(Reg.
No. 1998/015794/07)
MARIUS
EKSTEEN
JNR.
2
nd
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Respondent
SNYMAN
SIGNS
4
th
Respondent
HEARD
ON:
07 NOVEMBER 2019
JUDGMENT
BY:
MATHEBULA,
J
DELIVERED
ON:
13
DECEMBER 2019
Final
interdict – Requirements met – Mootness of a matter does
not constitute an absolute bar – Discretion lies
with the court
whether or not to consider it.
Introduction
[1]
This is an application in which the applicants claims an interdictory
relief against the first and second respondent. The order
sought is
to interdict the aforementioned respondents from displaying and/or
erecting any signs which replicates road traffic signs
without the
appropriate authority to do so. The first prayer compelling the
respondents to remove the offending road signs was
complied with
after receipt of the application.
Parties
[2]
The application is supported by a founding and replying affidavit
deposed to by a member of the first applicant namely Jan Gabriel
Vermeulen. He is also mandated by directors of the second applicant
to institute this application on their behalf. There are two
confirmatory affidavits deposed to by Hendrikus Johannes Stander
(attorney of record) and Willie Loftus who is employed by the
third
respondent as the Manager: Transport Planning.
[3]
The opposing affidavit was deposed to by Marius Eksteen in his
personal capacity and also as a director of the first respondent.
There are two confirmatory affidavits, one by an independent
contractor Johan Pienaar and the other by the owner of the fourth
respondent.
Factual
background
[4]
The facts, as I glean them from the affidavits, are as follows.
[5]
The applicants and first respondent conduct business from adjacent
premises along Monument Road, Bloemfontein. The applicants
are
selling paint and paint related products. Although the first
respondent is also selling paint, it sells a wide range of products
used in the construction and building industry.
[6]
Monument Road pass in front of the premises of the applicants and
first respondent and provide access to those premises. This
road has
two traffic lanes on each side from East to West and vice a versa
separated by a concrete traffic median. It is important
to note that
at the portion in front of the premises of the applicants, it is a
one-way preventing customers to turn to the right.
This is so for
those traveling from East to West. They will have to pass the
applicant’s premises and make a U-turn manoeuvre
in order to
enter the premises. The premises of the first respondent are easily
accessible at that point.
[7]
A “No U-turn” traffic sign was erected and displayed at
the end of the traffic medium in front of the premises of
the
applicants. This was amplified with a rectangular sign clearly
specifying that transgressors will be fined the sum of R1000,00.
The
practical effect of these signs is that it created a hassle for the
customers of the applicants to drive approximately 1 kilometre
westwards and then make a U-turn to their destination. This was not
the case for the customers of the first respondent. It
is
unknown as to who erected it, when and why. Vermeulen took it
upon himself to spoil it with spray paint.
[8]
It is common cause that Eksteen instructed one Tiaan Snyman attached
to the fourth respondent to take down the vandalized signs
and
replace them with the new ones. It is also common cause that the
traffic signs were not erected by the competent authority
in this
case the third respondent. These traffic signs were also not
conforming with the standards and regulations pertaining to
traffic
management. The usurping of the function to erect the traffic sign(s)
by any unauthorized person is a criminal offense.
[1]
In a nutshell this is what led to the application before me.
Submissions
on behalf of the applicants
[9]
In the heads of argument and in oral argument, counsel for the
applicants submitted that if a person contravenes the provisions
of
the National Road Traffic Act, then the public at large may apply to
court for an appropriate relief. The decided cases of Patz
v Greene
and Laskey v Showzone were referred to in amplification of his
submission. I shall return to this aspect at a later stage.
He
further submitted that the applicants have a real right to apply to
court for the relief. Inter alia that they have the right
to conduct
their business in a lawful environment freely and without any illegal
infringement. Therefore as members of the public
with a protectable
interest they may enforce prohibitions of the display of illegal
signs.
[10]
The cornerstone of his submission based on the two cases quoted above
that the applicants need not prove harm or prejudice
where the
conduct complained of constitutes the breach of a statute. The
illegal traffic sign was a hassle in that it prevented
or discouraged
patrons from easy access to the business premises of the applicants.
The reasonable apprehension is that they would
lose customers because
of the illegal conduct of the second respondent.
[11]
It is important to note that the respondents complied with the prayer
that the offending traffic sign must be removed. The
argument is that
the remedy must still be granted because the attitude adopted by the
second respondent is that it is still dangerous
for road users in the
absence of the traffic sign. Therefore the second respondent will
still erect one in future.
Submissions
on behalf of the respondents
[12]
Counsel for the first and second respondent submitted in reply that
the applicants have not demonstrated a single thread of
evidence from
any of their customers that the traffic sign caused them any
discomfort or nuisance and let them to not enter the
premises of the
applicant. Equally that there was no morsel of evidence that the
first respondent gained an unfair advantage because
of this
discomfort or nuisance. The essence of his submission is that the
applicants do not have the locus standi to seek interdictory
relief
for its customers who are not party to the litigation. In any event
there is no evidence that any nuisance or discomfort
did occur. As a
result the applicants have not proved a clear right.
[13]
On whether injury was actually committed or reasonably apprehended,
the reasoning is that the discomfort or nuisance of the
third parties
ie customers can never be equated to injury or prejudice of the
applicants. The argument is that the applicants have
not produced any
evidence pointing towards commercial damage or prejudice, unfair
advantage gained by the first respondent or obstruction
to access its
premises. Accordingly, the interdict should be refused on this
ground.
[14]
It was submitted that despite second respondent complying with prayer
one of the notice of motion by taking down the offending
traffic
signs, the applicants persisted with the application. The applicants
are seeking an order to interdict the second respondent
for future
conduct. The applicants, so the argument goes, have not discharged
the onus to show that they will suffer a continuing
violation of
their rights in the future. Prior to launching the application, the
applicants did not request or demand the second
respondent to remove
the offending traffic signs. On this ground, the interdict should be
refused. Finally he submitted in the
event that the applicants are
successful in this application, the respondents must be ordered to
pay the costs only up to the filing
of the answering affidavit. The
applicants should be liable to pay the costs of the application.
Discussions
[15]
As the applicants are seeking final relief in motion proceedings, the
correct approach to resolve the dispute is the application
of the
well-trodden Plascon-Evans rule.
[2]
These principles were restated in
National
Director of Public Prosecutions v Zuma
in the following terms:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma's) affidavits, which have been admitted by
the respondent (the NDPP), together with the facts
alleged by the
latter, justify such order. It may be different if the respondent's
version consists of bald or uncreditworthy denials,
raises fictitious
disputes of fact, is palpably implausible, farfetched or so clearly
untenable that the court is justified in
rejecting them merely on the
papers. The court below did not have regard to these propositions and
instead decided the case on
probabilities without rejecting the
NDPP's version.”
[3]
I
do not understand this rule to mean that the court must adjudicate
the matter on the basis of the version advanced by the respondent(s).
[16]
There is an unequivocal admission by the second respondent that he
instructed or employed the third respondent to erect a road
sign.
This was in blatant contravention of section 57 (10) of Act 93 of
1996 which specifically prohibits any person to display
any road
traffic sign on public road unless authorized to do so. The first
respondent was not authorized by the competent authority
in this case
the third respondent. According to the expert commissioned by
the second respondent, the plate underneath the
road traffic sign
could have been put by someone with ulterior motives. In this
case that points in the direction of the
second respondent.
[17]
The court in Patz supra expressly stated the principle that
“
where the act
prohibited is obviously prohibited for the protection of a particular
party, then it is not necessary to allege special
damage.”
[4]
This
was refined by the then Appellate Division when the following was
said:-
“
Where it
appears either from reading of the enactment itself or from that plus
a regard to surrounding circumstances that the Legislature
has
prohibit the doing of an act in the interest of any person or a class
of persons, the intervention of the Court can be sought
by any such
person to enforce the prohibition without proof of special
damage.”
[5]
[18]
The conclusion is that the applicants have a real right to apply to
court for the relief. Acts and regulations enacted to ensure
road
safety by inter alia prohibiting an authorized display or erection of
illegal road traffic signs applied to them as members
of the public.
I do not agree with counsel for the respondents that the applicants
are seeking an interdictory relief on behalf
of parties who are not
litigants in this matter. In
Giant
Concerts CC v Rinaldo investments (Pty) Ltd
[6]
the
court stated the following:-
“
The
separation of the merits from the question of standing has two
implications for the own-interest litigant. First, it signals
that
the nature of the interest that confers standing on the own-interest
litigant is insulated from the merits of the challenge
he or she
seeks to bring. An own-interest litigant does not acquire standing
from the invalidity of the challenged decision or
law, but from the
effect it will have on his or her interests or potential interests.
He or she has standing to bring the challenge
even if the decision or
law is in fact valid. But the interests that confer standing to bring
the challenge, and the impact the
decision or law has on them, must
be demonstrated.”
[19]
The passage above nullifies the contention by counsel for the
respondends and I agree with it. In line with the dicta
in
Patz
v Greene
and
Laskey
v Showzone
[7]
that the applicants being members of the public for shown the traffic
legislation was enacted need not necessarily prove harm or
prejudice
where the conduct complained of constitutes the breach of statute.
There is no doubt that the illegal road traffic
sign prevented the
customers of the applicants to enter their business premises at the
end of the concrete traffic median.
The incidental result of
this illegal act perpetrated with ulterior motive meant that
customers of the applicants had to travel
extra kilometre(s) without
any cogent reason(s). Clearly such conduct had the effect of
prejudicing the applicants and they
reasonably apprehended harm in
the circumstances that their enterprise will be placed at risk.
On this ground the interdict
ought to succeed.
[20]
It was contended by counsel for the respondents that the granting of
the relief has become moot. The reasoning is that
the second
applicant has complied with prayer 1 of the notice of motion by
removing the offending traffic sign. The alternative
argument
is that at no stage did the applicants demand from the second
respondent that he remove the traffic sign that he has only
re-erected after it was spoiled. I do not find any merit in
this argument. I was not referred to any authority that
it was
a requirement that they have to request him or demand that he removes
the traffic sign. He was not supposed to erect
or re-erect it
in the first place.
[21]
The Constitutional Court has confirmed that the mootness of the
matter does not necessarily constitute an absolute bar to its
justiciability. The discretion lies with the Court whether or
not to consider it.
[8]
Such discretion the learned judges held that it must be exercised
according to what the interest of justice require.
I hold a
firm view that in this matter I am enjoined to consider the matter.
[22]
It will appear that the second respondent does not appreciate the
illegality of his actions because of a perceived civil duty
he is
performing on behalf of the ineffective or non-functional third
respondent. While it is commendable that he is acting
as a good
citizen, his actions remain illegal. In fact he still considers
absence of the traffic sign to be dangerous for
other road users.
The certainty that must be emphasised is that it is against the law
to act in the manner that he did.
[23]
The rationale for the granting of the interdict was sufficiently
espoused in
Independent Outdoor Media (Pty) Ltd v City of Cape
Town
in para 36 as follows:-
“
In
my view there is no reason why an interdict should not be granted to
stop unlawful signs being displayed in breach of the Bylaw,
and while
a criminal prosecution may well follow upon an offender making itself
guilty of unlawful conduct, it would be a sad day
if the criminal
courts were to be clogged by a vast number of cases of such a nature.
The court a quo was quite correct to have
granted the interdict that
it did.”
[24]
This brings me to the conclusion that prayers 3 and 4 of the notice
of motion should be granted. However, there must
be some
amendment particularly on the issue of costs. The principle is
that the costs must follow the result. That
far I am in
agreement with counsel for the applicants. We part ways on the
aspect that punitive costs on an attorney and
client scale should be
granted. Such costs are only awarded in situations where the
court demonstrate its displeasure against
a litigant. The Court
must exercise its judicial discretion in a just and fair manner.
In my view there are no cogent
reasons to make such an order.
The costs for employment are warranted.
Order
[25]
In the result the following order is made:-
25.1. The First and
Second Respondent are interdicted from displaying and, or erecting
any signs which replicates road traffic signs
without the necessary
authority to do so;
25.2. The First and
Second Respondent are ordered to pay the costs, the one paying the
other to be absolved, including the costs
of two (2) counsel.
__________________
M.
A. MATHEBULA, J
On
behalf of applicant: Adv. P. Zietsman SC
Assisted
by: Adv. S. Rautenbach
Instructed
by: Stander & Green Attorneys
BLOEMFONTEIN
On
behalf of 1
st
& 2
nd
respondent: Adv. P.J.J.
Zietsman
Instructed
by: Kramer Weihmann Joubert Inc.
BLOEMFONTEIN
[1]
National Road Traffic Act 93
of 1996
[2]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E –
635C
[3]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para
26
[4]
1907 TS 427
at 433
[5]
Roodepoort-Maraisburg Town
Council v Eastern Properties (Prop.) Ltd
1933 AD 87
at page 96
[6]
2013 (3) BCLR 251
(CC) at
para 33
[7]
2007 (2) SA 48 (C)
[8]
independent Electoral
Commission v Langeberg Municipality 2001 (3) SA CC 925 ad par 9