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[2018] ZAGPJHC 648
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Urban Ocean Property Development (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Others (48950/2017) [2018] ZAGPJHC 648 (12 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 48950/2017
In
the matter between:
URBAN
OCEAN PROPERTY DEVELOPMENT (PTY) LTD
Applicant
And
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY 1
st
Respondent
THE
CITY MANAGER OF THE CITY OF JOHANNESBURG 2
nd
Respondent
METROPOLITAN
MUNICIPALITY
MR
JACK SEKGOBELA (BEING THE PREPRESENTATIVE 3
rd
Respondent
IN
THE DEPARTMENT OF DEVELOPMENT AND PLANNING
IN
THE JOHANNESBURG METROPOLITAN MUNICIPALITY)
THE
EXECUTIVE MAYOR OF THE JOHANNESBURG 4
th
Respondent
METROPOLITAN
MUNICIPALITY
THE
MINISTER OF
FINANCE 5
th
Respondent
JUDGMENT
TSOKA J
[1] In this application,
the applicant Urban Ocean Property Development (Pty) Ltd
(Urban Ocean) seeks an
order in terms of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) to review and set
aside the following decisions:
1.1
the decision of the third respondent refusing Urban Ocean’s
application for outdoor advertising sign (the sign) on the
basis that
such sign was in contravention of section 14(2)(b) of the Outdoor
Advertising By-laws of the first respondent, the City
of
Johannesburg, which section provides that no third party sign may, in
a minimum control area, exceed 200 square meters;
1.2
the decision of the second respondent dated 7 July 2017 dismissing
Urban Ocean’s appeal against the decision referred
to in 1.1
above; and
1.3
the decision rejecting Urban Ocean’s amended application dated
15 August 2015.
[2]
The application is opposed by the first to fourth respondents.
Instead of each of the four respondents filing an answering
affidavit, such affidavits were not filed. The only answering
affidavit filed is that of Isaac Mafoane Mogashoa, the Group Head:
Group Legal and Contracts of the first respondent acting on behalf of
all the respondents.
[3] The facts giving rise
to the present application are the following: On 12 December 2016,
Urban Ocean applied for an outdoor
advertising sign with the
following dimensions:
3.1
Size: 33m x 50m x 3m
3.2
Wall mounted single sided
3.3
Three sided and
3.4
Externally illuminated.
[4] On 1 March 2017, the
City of Johannesburg addressed a letter to Urban Ocean
which letter reads –
‘
Please
find attached pre-evaluation checklist indicating that the proposed
application is unacceptable (It does not comply to section
14(2)(b)
of the Johannesburg’s Outdoor Advertising By-laws) and
therefore cannot be accepted.’
[5]
Dissatisfied with the letter, on 2 March 2017, Urban Ocean pointed
out that as the property, Penmore Towers, on which the sign
was to be
displayed, was within the Inner City renewal area and that the sign
was in the interests of the aesthetic appearance
of the building like
any other building within the Inner City, must, in terms of the
By-laws, be approved. The City of Johannesburg
replied to the letter
of 2 March 2017 pointing out to Urban Ocean that on the latter’s
insistence, the application would
be considered without however being
responsible for the outcome of the said application.
[6]
Simultaneously with the letter of 2 March 2017, the City of
Johannesburg pointed out to Urban Ocean that its application was
prohibited and could therefore not be processed. On 9 March 2017 the
former sent to the latter a contravention notice in terms
of the
By-laws regarding the sign. As there was no compliance with the
notice, on 14 March 2017, on urgent basis, the City of Johannesburg
sought an order against Urban Ocean to remove the sign from the
property. On 28 March 2017, the parties settled the urgent
application
on the basis that Urban Ocean was to submit further
documentation to enable the City of Johannesburg to process the
application.
[7]
On 30 March 2017, the City of Johannesburg advised Urban Ocean that
its pre-evaluation application has been completed and that
the former
required the amount of R1 154 340, calculated on the revised size of
Urban Ocean’s application. The said amount
was paid on 12 April
2017.
[8]
To Urban Ocean’s surprise, on 20 April 2017, the City of
Johannesburg requested further information to which request the
former responded that the information requested had long been
submitted. On 2 June 2017, the City of Johannesburg’s Operation
Manager: Advertising Unit, the third respondent, refused Urban
Ocean’s application on the basis that the said sign was in
contravention of section 14(2)(b) in that it was 200 square meters
and in the Council’s opinion, was not “in the interest
of
the aesthetic appearance of the building on which the sign has been
proposed, and neither is it in the interest of the immediate
neighbourhood
of this area.”
[9]
Urban Ocean being dissatisfied with the third respondent’s
decision, on 13 June 2017 lodged an appeal to the City Manager,
the
second respondent, who on 7 July 2017 dismissed the appeal on the
basis that Urban Ocean’s proposed sign was bigger than
the 200
square meters and that the proposed sign may cause a distraction to
motorists on Rissik street, a busy road. In addition,
so reasoned the
second respondent, because of the size of the sign, this would have a
detrimental effect to the aesthetic appearance
of the building and
the Inner City.
[10] On 28 July 2017,
Urban Ocean submitted an amended application with the reduced size of
the sign. This time the size of the
sign was reduced from 5445 square
meters to 4356 square meters. In spite of the amended application
with the reduced size, again,
on 15 August 2017, the second
respondent rejected the former’s amended application in that in
terms of the By-laws, Urban
Ocean was not entitled to bring a new
application within a period of two years from the date of rejection
of the first application
there being no changed circumstances. The
second respondent reasoned that the reduction in size of the sign did
not constitute
changed circumstances.
Legal framework
[11]
Section 4(2) of the By-laws vests the Council of the City of
Johannesburg with the discretion to either approve or refuse an
application in terms of section 3(3). In approving the application,
the Council may impose conditions it considers appropriate.
In the
event an application is granted, it may not be for a period exceeding
five years. Such period of approval must be specified
in the granting
of such application.
[12] Urban Ocean’s
section 3(3) application was in terms of section 14(3) which provides
–
‘
Notwithstanding
the provisions of subsection (1) and (2), it may in an approval in
terms of section 4(2) above be permitted or required
that the
dimensions of any such sign be greater than those specified in those
subsections, if –
(a)
It is in the interests of the aesthetic
appearance of a building or wall on which an advertising sign is
placed as contemplated
in subsection (1) and (2), and of the
neigbourhood where such building or wall is situated, if the building
or wall is situated
in appropriate areas of either partial or minimum
control;
(b)
It is in the Inner City as indicated in the
City’s Spatial Development Framework and the approval of such
sign in terms of
section 4(2) is subject to an annual prescribed
financial contribution to be utilized for any Inner City Renewal
Project.’
[13]
In terms of subsection (1) of section 14 an on premises advertising
sign which is an area of partial control may not exceed
40 square
meters, and in an area of minimum control, may not exceed 80 square
meters. In terms of subsection (2) of section 14
which relates to
third party advertising sign such as Urban Ocean’s advertising
sign, such sign, in an area of partial control
may exceed 80 square
meters while in an area of minimum control the sign may exceed 200
square meters.
[14] The City of
Johannesburg and its officials, the second and third respondents,
rejected Urban Ocean’s sign in terms of
section 14(2) which
provides that –
‘
No
third party advertising contemplated in this section may exceed 80
square meters in an area of minimum control.’
[15]
The present application for review and setting aside of the
respondents’ decisions is, in the main, premised on the
provisions of PAJA in particular, section 6(2)(a)(i)(ii); section
6(2)(d) and section 6(2)(e)(ii)(iii) which provisions provide
that an
administrative action is reviewable if the administrator who took the
decision was not authorized to do so by the empowering
provision; or
acted under a delegation of power which was not authorized by the
empowering provision; or the action was materially
influenced by an
error of law; or for reason not authorized by the empowering
provision; or because irrelevant circumstances were
taken into
account or relevant considerations were not considered.
[16]
To determine whether Urban Ocean’s review grounds are
sustainable it is necessary to first determine the former’s
involvement in the Inner City.
[17]
It is common cause that Urban Ocean is the registered owner of
Portions 66 and 87 of the Farm Turfontien No 66 and Erf 1147
Marshaltown Township. On a daily basis, it is busy fulfilling basic
tasks on behalf of the local government by cleaning the streets
of
the Inner City, pavements and the road sides. In addition, it removes
rubble and weeds along the main access routes to the City
as well as
the removal of refuse and illegal squatters in the Inner City.
Furthermore, it provides security as well as guarding
services for
the City.
[18]
For the optimum execution of its civic duties, Urban Ocean requires
substantial financial resources. Since 2004, it has been
exploring
advertising opportunities in the Inner City to supplement the
financial resources required to keep the Inner City clean,
safe and
to attract tenants. It then identified a building in the Inner City
known as Penmore Towers. This building is indicated
in the City of
Johannesburg’s Spatial Development Framework where the City has
undertaken an urban renewal programme. The
sign in issue in this
matter was to be put up on this building. In terms of section
14(3)(b), the said sign being more than 200
square meters in extent,
is subject to an annual prescribed financial contribution from Urban
Ocean. It is in this context that
Urban Ocean applied to the City of
Johannesburg in terms of the provisions of the said section for
permission to put up a sign
of more than 200 square meters in extent.
[19]
The third respondent’s refusal of Urban Ocean’s
application on the basis that “…the applicant has
disregarded section 14(2)(b)… in that the proposed sign does
not comply with the applicable minimum 200 square meters in
the area
of minimum control” is reviewable in terms of PAJA. I say so,
first, on the basis that Urban Ocean’s application
was not in
terms of section 14(2) but section 14(3) of the By-laws. Secondly, in
refusing the application, including the dismissal
of the appeal, the
respondents were not authorized to do so by the empowering provision;
thirdly, acted under a delegation of power
which was not authorized
by the empowering provision; fourthly, their actions were materially
influenced by an error of law; and
lastly, the refusal was because
irrelevant considerations were taken into account while relevant
considerations were disregarded.
[20] In the result, I
find that Urban Ocean’s grounds of review are indeed
sustainable. The respondents’ action is reviewable
in terms of
PAJA. The respondent’s decisions of 2 June 2017; 7 July 2017
and 15 August 2017 are thus reviewed and set aside.
Any charges
levied by the respondents pursuant to the actions, are also reviewed
and set aside.
Order
[21]
Both parties being agreeable that the appropriate order in the
circumstances of this matter is to have the matter referred
back to
the respondents for re-determination, same is referred to the
respondents to deal with the application in terms of section
14(3) of
the By-laws. Thus, Urban Ocean being in a position as if no
application was considered and refused, is not liable to pay
a
further amount of R1 154 340 calculated in terms of the size of the
advertising sign to be reconsidered.
[22] The first, second
and third respondents are ordered to pay the costs of the application
jointly and severally, the one paying
the other to be absolved.
____________________
M TSOKA
JUDGE OF THE HIGH
COURT
Appearances:
For
the applicant: Adv GM Young
Instructed
by: Froneman Roux & Streicher Attorneys
For
the respondents: Adv Makola
Instructed
by: Koikanyang Incorporated
Date
of hearing: 22 October 2018
Date
of judgment: 12 December 2018