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[2016] ZAGPPHC 547
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Strawberry Worx Pop Pty Ltd v Cedar Park Properties 39 (Pty) Ltd and Another (18810/2016) [2016] ZAGPPHC 547 (17 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
DATE:
17 JUNE 2016
CASE
NO: 18810/2016
In
the matter between
STRAWBERRY
WORX POP (PTY)
LTD
.......................................................................
APPLICANT
And
CEDAR
PARK PROPERTIES 39 (PTY)
LTD
................................................
FIRST
RESPONDENT
FUSION
GEN COMMUNICATIONS (PTY)
LTD
....................................
SECOND
RESPONDENT
Mandament
van Spolie – requirements of - lease of advertising space on
rooftop of building in terms of advertising agreement
- two
advertising signs erected - removed by first respondent without court
order - whether the applicant was in peaceful actual
possession of
the advertising space at the time of the alleged spoliation - terms
and conditions of advertising agreement examined
- all requirements
for possession met - order for restoration of possession granted
J
U D G M E N T
VAN
OOSTEN J:
[1]
This application is based on the
mandament
van spolie
and comes before me by way
of urgency. The subject matter of the application is an advertising
space on the rooftop of a building
at the intersection of 5
th
street and Rivonia road, Sandton. The first respondent is the owner
of the building and holds the rights to allow advertising from
the
open rooftop area. The applicant is a turnkey outdoor advertising
solution agent in respect of advertising on billboards, building
wraps and hoarding. Two advertising signs erected on the advertising
space are relevant to this application: the first, an Alexander
Forbes sign and, the second, an H&M sign. The Alexander Forbes
sign was erected in November 2014 through the agency of the
applicant, pursuant to the first respondent’s letter of
mandate, dated 12 November 2014, in terms of which the applicant
was
informed that ‘we intend mounting an advertising sign above the
podium on site, with advertising faces facing the intersection
of 5
th
street and Rivonia road’ and consent given to the applicant to
‘market the advertising for this position’. On
20
November 2014 the applicant, acting in terms of its mandate and
having sourced an advertiser for that position, concluded a
written
Advertising Agreement with the first respondent, providing for the
erection of the Alexander Forbes sign. I shall revert
to the terms
and conditions of this agreement (the advertising agreement). The H&M
sign was erected, likewise, through the
agency of the applicant, in
terms of an oral agreement concluded between the parties during
September 2015. The H&M sign was
erected on behalf of a fashion
retailer for an intermittent campaign which was to end on 31 May
2016.
[2]
The dispute between the parties arose in May 2016 when the applicant,
in a letter addressed to the first respondent, requested
a meeting to
be held in order to discuss a perceived impasse that had arisen
following ‘some issues during construction late
2015’. On
the same date the first respondent’s attorneys wrote a letter
to the applicant, in which the applicant was
informed that
‘notwithstanding expiry of the agreement (the advertising
agreement) you continue to utilise the advertising
space illegally
for an Alexander Forbes advertisement’ and, further, that the
H&M sign had been erected without the consent
of the first
respondent. A demand was made for the removal of the signs by 16 May
2016, failing which the first respondent would
launch an application
to this court for an order to compel such removal. In a follow-up
letter, dated 19 May 2016, the first respondent’s
attorneys,
although no longer taking issue with the H&M sign, in respect of
which they alleged a one month authorisation exited,
demanded removal
of the H&M sign on 31 May 2016 and in regard to the Alexander
Forbes sign, advised that they held instructions
to continue with the
application to compel removal. The letter furthermore records that
the first respondent had received ‘an
offer for the site
subject to it being cleared and available by 24 May 2016’.
[3]
It is common cause between the parties that both signs were removed
by the first respondent without recourse to the court and
that a new
sign, advertising Nike, was erected through the agency of the second
respondent. The second respondent has not entered
the fray and I
shall accordingly henceforth refer to the fist respondent as the
respondent.
[4] The crucial
dispute between the parties which I am required to determine is
whether the applicant was in peaceful possession
of the advertising
space at the time of the alleged spoliation. Subsidiary disputes
exist concerning the duration of the advertising
agreement which, of
course, because of the restitution
ante omnia
element of the
mandament van spolie
, I need not resolve (
Rosenbuch v
Rosenbuch and Another
1975 (1) SA 181
(W) 183A). To revert to the
possession dispute, counsel for the respondent submitted that the
applicant had mis-characterised the
relationship between the parties.
The argument continued along the lines that the applicant merely had
a right to market the advertising
space, that applicant’s
access to the site was limited to the obligations it was to fulfil on
site, that the ownership of
the signs, and all its accessories,
remained vested in the respondent and that on termination of the
agreement between the parties,
the respondent was entitled to demand
from the applicant the removal of the sign and to repair the damage
caused by such removal.
In support of the argument counsel heavily
relied on the judgment of the Supreme Court of Appeal in
ATM
Solutions (Pty) Ltd v Olkru Handelaars CC and Another
[2009] 2
ALL SA 1
(SCA), and submitted that it was on ‘all fours’
with the present matter.
[5] The nature of
applicant’s rights and, in particular, whether they constitute
the required element of possession necessary
for the protection
afforded by the
mandament
, must be determined in the context
of and based on the terms and conditions contained in the advertising
agreement, which governs
the contractual relationship between the
parties. In clause 2.3 of the agreement the applicant is appointed by
the respondent ‘to
sub-lease’ a billboard situated at the
advertising space. The ‘sub-lease’ entitles the applicant
to ‘utilise
the advertising space’ which ceases on
termination of the agreement (clause 3.2). The applicant is entitled
to access to
the site ‘at any reasonable time’ for
purposes of changing the advertisement and carrying out repairs,
alterations
to and general maintenance of the sign provided prior
notice thereof is given to the respondent’s development manager
(clause
9). Although the respondent’s ownership of ‘sign
and all accessories thereto’ is confirmed it may request the
applicant, on termination of the agreement, to remove the sign
‘together with its above ground and below ground foundations
and accessories’ from the site.
[6] In summary the
applicant’s rights are analogous to those of a sub-lessee (see
Nienaber v Stuckey
1946 AD 1049).
The applicant is expressly
entitled to use the advertising space, which is exclusively used for
advertising purposes. The applicant
is further entitled to access, at
all reasonable times, for all purposes related to carrying out its
mandate. In my view these
all constitute incidents of possession of
the advertising space. The facts dealt with in
ATM
are vastly
different and distinguishable from the present matter.
ATM
was
decided on the basis that ‘ATM did not occupy the premises, did
not control the ATM and did not have access without the
co-operation
of Olkru’, which led to the conclusion ’It did not
control any part of premises through the presence and
connection of
the ATM’ (
ATM
para 13). In contrast thereto, and at the
risk of repeating, the use of the site was for the limited purpose of
billboard advertising
in respect of which the applicant held the
rights of a sub-lessee. The applicant was entitled to access to the
site which, only
for practical reasons, had to be pre-arranged, it
was moreover in control of and responsible for the maintenance of the
signs and,
if requested to do so, to remove the signs and clear the
site.
[7] Counsel for the
applicant referred me to the judgment in
Bennett Pringle (Pty) Ltd
v Adelaide Municipality
1977 (1) SA 230
(EC) 236H-237H, where
Addleson J, concerning the rights of a lessee under an agreement of
lease, held that the question of possession
is one of degree and that
the enquiry was whether the conduct of the possessor – minimal
as it may be - shows that he did
exercise rights or carry out
activities consistent with the transfer to him of control of the
premises and that he did so with
the intention of securing some
benefit to himself. Applied to the facts of this matter, those
requirements have all been met. For
all these reasons I conclude that
the applicant was in possession of the advertising space in respect
of which it was spoliated
by the respondent.
[8] It remains to
briefly deal with the subsidiary disputes. The advertising contract,
by the effluxion of time, expired on 15 November
2015. The applicant
however, alleges that the agreement was ‘renewed’ in
terms of an ‘Out of Home Rental Agreement’
concluded with
Omnicom Media Group SA (Pty) Ltd, to which the respondent was not a
party but which was delivered to its offices.
The legality of the
alleged renewal was challenged by counsel for the respondent in
argument. I am not required to decide this
issue. The applicant was
in possession of both signs at the time the respondent’s act of
spoliation was committed. The respondent
was well aware of the
requirement that a court order was required to compel the applicant
to remove the signs, as is demonstrated
by the two letters I have
referred to. The respondent clearly resorted to self-help and a new
sign was installed (
Nino Bonino v De Lange
1906 TS 120).
Lastly, the respondent concedes that its removal of the H&M sign
was one day too early, on 30 May 2016. That of course does
not avail
the respondent: the
status quo
must be restored
ante omnia
.
[9] It follows that
the application must succeed.
[10]
In the result the following order is made:
1.
The first respondent is ordered to forthwith restore the applicant
into possession of the advertising space and advertisement
signs of
Alexander Forbes and H&M.
2.
The first respondent is ordered to pay the costs of the application.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT ADV W KROG
APPLICANT’S
ATTORNEYS MARAJ ATTORNEYS
COUNSEL
FOR FIRST RESPONDENT ADV DC FISHER SC
FIRST
RESPONDENT’S ATTORNEYS SMIT SEWGOOLAM INC
DATE
OF HEARING 14 JUNE 2016
DATE
OF JUDGMENT 17 JUNE 2016