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[2016] ZAGPPHC 1247
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South African National Roads Agency SOC Ltd (SANRAL) v M & T Development (Pty) Ltd and Others (62096/2013) [2016] ZAGPPHC 1247 (9 December 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
Case
No: 62092/2013
9/12/2016
In the matter between:
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY SOC LTD
(SANRAL)
Applicant
and
M
& T DEVELOPMENT (PTY)
LTD
First
Respondent
BRANDHOUSE
BEVERAGES (PTY) LTD
Second
Respondent
JINJIA
OUTDOOR ADVERTISING (PTY)
LTD
Third
Respondent
MINISTER
OF
TRANSPORT
Fourth
Respondent
Date
of Hearing: 24 August 2016
Date
of Judgment:
JUDGMENT
BARNES
AJ
Introduction
1.
This is an application by the South African National Roads Agency Soc
Ltd ("Sanral'') for an order compelling the Respondents
to
remove a billboard structure and an advertisement erected on a bridge
crossing the N1 highway in Centurion between the John
Vorster and
Brakfontein interchanges.
2.
The advertisement, at least at the relevant time, was one extolling
the virtues of Johnnie Walker whiskey. Emblazoned on a massive
billboard structure, it faces both directions of highway traffic.
3.
Sanral contends that the billboard structure was erected illegally
and that the advertisement is being illegally displayed in
contravention of section 48 and section 50, respectively, of the
South African National Roads Agency Limited and National Roads
Act 7
of 1998 ("the Act"). Those sections require permission to
be obtained from Sanral for the erection of structures
and the
display of advertisements which are broadly speaking:
"on,
over or visible from national roads."
It is common cause
that no such permission was sought or obtained. Sanral contends that,
in addition to being illegal, the advertisement
poses a road safety
risk on that particular stretch of the highway.
4.
Sanral initially launched the application on an urgent basis in
September 2013. In October 2013, it was struck from the roll
for lack
of urgency. The application was, however, re-enrolled as a special
allocation pursuant to certain constitutional challenges
being raised
to sections 48 and 50 of the Act. This necessitated the filing of
additional papers. A postponement followed and the
application
eventually came before this Court for hearing on 24 August 2016.
5.
The First Respondent is the owner of the property on which one side
of the bridge, which sports the advertisement, is anchored.
It does
not oppose the application. Nor does the Second Respondent. It is the
local distributor of the international whiskey brand:
Johnnie Walker.
The First and Second Respondents abide the decision of the Court.
6.
The application is vigorously opposed by the Third Respondent: an
agency specialising in outdoor advertising ("the Agency").
The Agency was responsible for the erection of the billboard
structure and advertisement pursuant to a lease agreement concluded
with the First Respondent in terms of which it,
inter a/ia,
indemnified the First Respondent against any legal action arising
as a result of the erection or display of the advertisement.
7.
The Agency opposes the application on a range of grounds which may
conveniently be grouped into four categories:
7.1 First, the Agency argues that
sections 48 and 50 of the Act are not applicable to the billboard
structure or the advertisement
and that Sanral's permission was
therefore not required.
7.2 Second, the Agency argues that
Sanral's application is fatally defective on its own terms in that:
7.2.1.
The notices issued by Sanral in terms of sections 48 and 50 of the
Act are invalid;
7.2.2.
Sanral lacks
locus standi
to obtain the relief it seeks in its
Notice of Motion; and
7.2.3.
Sanral has a suitable alternative remedy available to it in terms of
sections 48 and 50 of the Act.
7.3 Third, the Agency argues that
Sanral's contention that the advertisement poses a road safety risk
is without foundation.
7.4 Fourth, the Agency argues that
sections 48 and 50 of the Act (in the event that they are found to be
applicable to the billboard
structure and advertisement) are
unconstitutional on various grounds.
8.
As a result of the constitutional challenges raised, the Minister of
Transport ("the Minister") sought leave to be
joined as the
fourth respondent in the application. There being no opposition
thereto, the Minister filed an answering affidavit
and heads of
argument addressing the constitutional challenges raised. Iformally
joined the Minister as the fourth respondent at
the hearing of the
application.
9.
In what follows below, Iwill assess each of the Agency's arguments in
turn. First, however, it is necessary to set out Sanral's
case as
pleaded in its founding affidavit.
Sanral's
Pleaded Case
10.
In its founding affidavit, Sanral based its case squarely on sections
48 and 50 of the Act.
11.
Section 48 of the Act provides, in relevant part, as follows:
"48 Structures and other works
on, over or below national roads or certain other land
(1) Except as provided in subsection
(2), no person may do any of the following things without the
Agency's written permission or
contrary to that permission, namely -
(a) on or over, or below the
surface of, a national road or land in a building restriction area,
erect or construct or lay,
or establish any structure or other thing
(including anything which is attached to the land on which it stands
even though it does
not form part of that land);
(b) make any structural
alteration or addition to a structure or that other thing situated on
or over, or below the surface
of, a national road or land in a
building restriction area;
(c) give permission for
erecting, constructing, laying or establishing any structure or that
other thing on or over, or below
the surface of, a national road or
land in a building restriction area, or for any structural alteration
or addition to any structure
or other thing so situated.
……
(5) Where a person without the
permission required by subsection (1) or contrary to any permission
given thereunder, has erected,
constructed, laid or established a
structure or other thing or has made a structural alteration or
addition to a structure or other
thing or given permission therefor,
the Agency by notice in writing may direct that person to remove the
unauthorised structure,
other thing, alteration or addition within a
reasonable period which must be stated in the notice but which may
not be shored than
30 days calculated from the date of the notice.
(6) If the person to whom a notice has
been issued in terms of subsection (5), fails to remove the
structure, other thing, alteration
or addition mentioned in the
notice, within the period stated therein, it may be removed by the
Agency itself which may recover
the cost of removal from that person.
.........
(7) Any person who contravenes
subsection (1) is guilty of an offence and liable on conviction to a
term of imprisonment not longer
than one year, or a fine, or to both
the term of imprisonment and the fine."
12.
Section 50 of the Act provides, in relevant part, as follows:
"50 Advertisements on or visible
from national roads
(1) Except as provided in subsection
(2), no person may -
(a) display an advertisement on a
national road, or permit it to be so displayed;
(b) display, outside an urban area,
any advertisement visible from a national road, or permit any
advertisement which is so visible,
to be so displayed;
(c) display any advertisement visible
from a national road in an urban area, on any land adjoining the
national road or on land
separated from the national road by a
street, or permit it to be so displayed.
(2) Subsection (1) does not apply to
the displaying of any advertisement complying with the prescribed
requirements (if any) as
to the nature, contents or size of such an
advertisement or the time, manner or pace of its display, where the
display thereof
is authorised by or under the regulations concerned
.....
…
.
(3) Any person who displays an
advertisement contrary to the provisions of subsection (1) or permits
it to be so displayed......and
who has been directed by the Agency by
notice in writing to remove that advertisement, must do so within the
period stated in the
notice which may not be shorter than 14 days.
(4) If the person to whom a notice in
terms of subsection (3) is directed, fails to remove the
advertisement specified in the notice
within the period stated
therein, it may be removed by the Agency itself which may recover the
costs of removal from that person.
(5) Any person who contravenes
subsection (1), is guilty of an offence and liable on conviction to a
term of imprisonment not longer
than six months or a fine."
13.
The regulations referred to in
section 50(2) of the Act are the
Regulations
on Advertising on
or
visible from National Roads,
published in 2000
[1]
("the Regulations").
14.
In its founding affidavit, Sanral pleaded that in terms of the
provisions of sections 48 and 50 of the Act, read with the
Regulations,
its permission was required for the erection of the
billboard structure and the display of the advertisement.
15.
Sanral pleaded that
"the Respondents have, without the
necessary permission and without even having applied therefor,
erected
a
structure
...
and commenced to display an
unauthorised advertisement thereon."
16.
According to Sanral, it became aware on 14 September 2013 that a
structure was being erected on the bridge without its permission.
On
18 September 2013, it dispatched an employee to the site to attempt
to stop the construction. This was unsuccessful and on the
same day
Sanral issued a notice to the First Respondent in terms of section 48
of the Act. This notice provided in relevant part
as follows:
"This notice is directed to you
in terms of the provisions of Section 48 of the South African
National Roads Agency Limited
and National Roads Act, 1998 (Act No 7
of 1998). Please note that in terms of Section 48(1) no person may on
or over, or below
the surface of, a national road or land in a
building restriction area, erect, contract or lay, or establish any
structure or thing.
You are hereby notified to terminate
all work activities within the National Road Reserve and to remove
the structure immediately."
17.
This notice did not elicit the desired response. The construction
continued, the billboard structure was completed and the vast
Johnnie
Walker advertisement was hoisted over the highway.
18.
On 20 September 2013, Sanral, through one of its employees, Mr Van
Eck, laid criminal charges against the First Respondent and
the
Agency for their alleged contraventions of sections 48( 1) and 50(1)
of the Act.
19.
On 25 September 2013, Sanral issued notices in terms of section 50 of
the Act to the Second Respondent and the Agency. These
notices
provided in relevant part as follows:
"This notice is directed to you
in terms of the provisions of Section 50 of the South African
National Roads Agency Limited
and National Roads Act, 1998 (Act 7 of
1998). Please note that in terms of section 50 no person may display
an advertisement on
a national road or permit it to be so displayed.
You are hereby notified to remove the
advertisement immediately."
20.
These notices also did not elicit the desired response. Two days
later, on 27 September 2013, Sanral launched its urgent application.
21.
In its Notice of Motion, Sanral seeks the following relief:
"2. That the Second and Third
Respondents be ordered to immediately take all necessary steps to
have the advertisement of the
Second Respondent's products on a
bridge structure across the national route N1 section 21 at
approximately kilometre mark 14.2,
removed within 3 days from the
date of service on them of this order;
3. That the First Respondent be
ordered to take all necessary steps to have the structure which it
has erected without the consent
of the Applicant on the aforesaid
bridge structure across the national route N1 section 21 at
approximately kilometre mark 14.2
removed within 3 days from date of
service on it of this order;
4. That, in the event of any of the
Respondents failing to comply with the orders referred to in
paragraphs 2 and 3 supra:
4.1 The Applicant and in particular
its Regional Manager: North as well as such other employees and/or
contractors of the Applicant
as may be instructed by him, be
authorised to take all necessary steps to remove the aforesaid
advertisement and structure;
…”
22.
That, in summary, is Sanral's case as pleaded in its founding
affidavit. I now turn to consider the arguments advanced by the
Agency. The first issue for determination is whether sections 48 and
50 of the Act are applicable to the billboard structure and
the
advertisement.
Are
sections 48 and 50 of the Act applicable?
23.
At the outset, it must be noted
that there is an exception to the applicability of the Regulations,
created by the Regulations themselves.
[2]
This is to the effect that the Regulations do not apply
[3]
where a municipality having jurisdiction has promulgated by-laws
which deal substantially with the matters covered by the Regulations
and which are applicable to national roads in the area.
[4]
24.
In 2006, the City of Tshwane published the City of Tshwane
Metropolitan Municipality: Control of Outdoor Advertising By-Laws
("the Tshwane By-Laws").
25.
Clause 2.1 of the Tshwane By-Laws provides that:
"No person shall erect, maintain
or display a sign or allow any other person to erect, maintain or
display a sign in a place
or on a building or structure that is
visible from any public place without the consent of the
Municipality."
26.
The Tshwane By-Laws define "public space" as follows:
'"public space' means a
Municipality owned and controlled area to which the public have free
access that includes roads, streets,
squares, transit facilities,
sports stadia, sport and recreational facilities such as parks,
nature trails and golf courses and
also premises accessible to the
general public on a more continuous basis such as large suburban
shopping centres."
27.
Both Sanral and the Agency submitted that the Tshwane By-Laws do not
apply in this case. They did so on the basis that the advertisement
is visible only from the N1, which does not constitute an area owned
or controlled by the Municipality as defined in the Tshwane
By-Laws.
This appears to be correct. But in any event, since the parties were
ad idem
on this point, it is not necessary for me to consider
it any further.
28.
Despite its submission that the
Tshwane By-Laws do not apply in this case, the Agency sought to rely
on the unreported judgment
of
HMKL
3 Investments (Pty) Ltd v South African National Roads Agency Limited
and Others
[5]
as authority for the
proposition that
"Sanral
is
not
required to legalise any advert displayed on land adjoining
a
national road within an
urban area."
The
Agency argued that this effectively constitutes authority for the
proposition that Sanral's permission was not required in this
case.
29.
In the
HMKL 3 Investments
case, the Court found that the
Tshwane By-Laws and not the Regulations applied to the advertisement
at issue. It is not open to
the Agency to rely on a judgment which
has as its foundation a finding that the Tshwane By-Laws applied and
to contend, simultaneously,
that the Tshwane By-Laws do not apply in
this case. The Agency cannot have its proverbial cake and eat it.
30.
In any event, the decision in
HMKL 3 Investments
was limited
to the facts of that case, which were markedly different from those
in the present one. There, the advertisement at
issue had been
erected on land situated within the municipal jurisdiction of the
City of Tshwane which bordered the N1 highway
on one side. That case
therefore did not deal with the position where, as here, the
advertisement has been erected on a bridge
crossing a national
highway. The
HMKL 3 Investments
judgment is accordingly
distinguishable on that basis.
31.
On what basis then does the Agency argue that sections 48 and 50 of
the Act are not applicable in this case? The argument is
a simple
one. It is that the billboard structure is not
"on or over
a
national road"
but is rather
"on or over
a
private road crossing
a
private bridge which has
been
integrated into the provincial road
system."
32.
Following the same logic, the Agency argues that the advertisement is
not
"on
a
national road"
but is rather
"affixed to
a
structure which has
been erected
on
a
private road crossing
a
private bridge."
33.
There was much argument about whether the road crossing the bridge is
a private or a public one. This is however a tangential
issue which
ultimately makes no difference to the Agency's argument. This is so
because, whether private or public, the road crossing
the bridge is
not a national road as defined in the Act.
34.
The Agency's argument, in a nutshell, is that neither the billboard
structure nor the advertisement are
"on or over
a
national road"
(in this case the N1) as required by
sections 48 and 50 of the Act. Instead, both are on or over the road
crossing the bridge which
is not a national road.
35.
In my view the Agency's argument is a strained one. It fails to
reflect a common sense approach to the provisions of the Act
in line
with its clear purpose to authorise and empower Sanral to manage and
control national roads, including advertising thereon.
It also fails
to take proper cognisance of the definition of "road" in
the Act. Importantly, "road" is defined
to include, in
addition to the roadway:
"(a) the land of which the road
consists or over which the road reserve in question extends;
(b)
anything on that land forming
part of. connected with. or belonging to the road
; and
(c) land acquired for the construction
of a connection between a national road and another road"
(emphasis added)
36.
Furthermore, the Agency's argument fails to take account of the
common law principle of
superficies solo cedit,
in terms of
which all permanently fixed structures form part of the immovable
property on which they have been erected.
37.
In my view, on a common sense reading of the provisions of the Act,
it is clear that the billboard structure was erected "
over
a national road" within the meaning of section 48(1)(a) of the
Act.
38.
Further, the billboard structure was erected on the bridge which is
supported by pillars constructed on the national road and
is
therefore "
on
the national road" within the meaning
of section 48(1)(a) of the Act.
39.
As for the advertisement, having regard to the principle of
superficies solo cedit
and since the advertisement is affixed
to the bridge which is "on the national road," the
advertisement is in my view
"on the national road" within
the meaning of section 50(1)(a) of the Act.
40.
Furthermore and in any event, the advertisement is visible from the
national road in an urban area on a bridge which is erected
on or
forms part of land adjoining the national road. On that basis it
clearly falls within section 50(1)(c) of the Act.
41.
For all of the above reasons, I am of the view that the Agency's
argument under this heading is without merit and that sections
48 and
50 of the Act are indeed applicable to the billboard structure and
the advertisement at hand.
42.
The next issue for consideration is whether Sanral's application is
fatally defective on its own terms, as argued by the Agency.
Is
the application fatally defective on its own terms?
43.
The Agency argues that Sanral's application is fatally defective on
its own terms, on three bases:
43.1 the notices issued by Sanral in
terms of sections 48 and 50 of the Act are invalid;
43.2 Sanral lacks
locus standi
to
obtain the relief it seeks in its Notice of Motion; and
43.3 Sanral has a suitable alternative
remedy available to it in terms of sections 48 and 50 of the Act.
Were
the notices issued by Sanral invalid?
44.
As set out above, Sanral issued notices in terms of sections 48 and
50 of the Act pursuant to which it directed that the billboard
structure and the advertisement be removed "immediately."
45.
This was clearly not in accordance with the provisions of the Act.
Section 48 requires such a notice to direct that the structure
be
removed
"within
a
reasonable period which must be
stated in the notice
but which may not be shorter than 30
days
calculated from the date of the notice."
Section
50, for its part, requires that the period stated in the notice may
not be shorter than 14 days.
46.
Advocate Davis SC, who appeared for Sanral, conceded that notice had
not been given in accordance with the timeframes stipulated
in
sections 48 and 50 of the Act but submitted that it had not been
practically possible to do so because of the urgency of the
matter.
Mr Davis submitted, without elaboration, that the failure to give
notice in accordance with the timeframes stipulated in
the sections
was, in any event, no bar to approaching the court for relief.
47.
Notably, Sanral's founding affidavit does not contain an averment to
the effect that it was not practically possible to give
the required
notice because of the urgency of the matter. But in any event, the
matter was found not to be urgent and struck from
the roll. There
was, at that stage, nothing to stop Sanral from giving the
Respondents proper notice as prescribed by the Act.
48.
Fundamentally however, and
whether the matter was urgent or not, Mr Davis is incorrect in his
submission that a failure to give
the prescribed notice is no bar to
approaching the court for relief. A failure in this regard may well
translate into such a bar.
Whether it will or not depends on two
questions: firstly whether the provision at hand are peremptory or
merely directory and secondly
whether there has been substantial
compliance with the provisions.
[6]
49.
Advocate Theron SC, who appeared for the Agency, submitted that the
minimum notice periods in sections 48 and 50 are peremptory.
He made
this submission on the basis of the negative imperative language used
in the sections as well as the legislative purpose
sought to be
achieved by the minimum notice periods. This, he submitted, was to
afford affected third parties sufficient opportunity
to protect their
rights in view of the extensive enforcement powers granted to Sanral
in terms of the provisions (to remove the
advertisement or structure
and recover costs from third parties) and the imposition of criminal
penalties for contravention of
the sections. I agree with these
submissions.
50.
Of particular importance, in my view, is that fact the erection of a
structure and display of an advertisement in contravention
of
sections 48 and 50 of the Act are criminalised. The minimum notice
periods stipulated in those sections are designed to afford
affected
third parties a reasonable opportunity to take corrective action or
otherwise take steps to protect their rights in light
of the drastic
consequences which accompany a contravention of the provisions. In my
view the sections are indeed peremptory.
51.
The next question which arises is whether the notices issued by
Sanral constituted substantial compliance with the sections.
Given
the purpose of the sections and in particular the minimum notice
provisions stipulated therein, I am of the view that the
notices, in
order to substantially comply therewith had to, at the very least,
afford the Respondents a reasonable period within
which to remove the
billboard structure and advertisement.
52.
The notices issued by Sanral did not achieve this. They did not
afford the Respondents any period of time to remove the billboard
structure or the advertisement, but simply directed that they be
removed "immediately." Sanral launched its urgent
application
9 days after issuing the section 48 notice and a mere 2
days after issuing the section 50 notice. Furthermore, Sanral laid
criminal
charges against the Respondents two days after issuing the
section 48 notice and before it had even issued the section 50
notice.
The Respondents were accordingly not afforded a reasonable
period of time within which to take corrective action or otherwise
take
steps to protect their rights as required by the Act.
53.
I am therefore of the view that the notices issued by Sanral did not
substantially comply with the peremptory requirements of
sections 48
and 50 of the Act. They are accordingly invalid.
Does
Sanral have standing to obtain the relief sought?
54.
As set out above, Sanral seeks an order compelling the Respondents to
remove the billboard structure and advertisement. In the
event that
the Respondents fail to comply with such order, Sanral seeks an order
authorising it to remove the billboard structure
and advertisement.
55.
It is evident from the portions of the Act quoted above that sections
48 and 50 authorise Sanral to remove the billboard structure
and
advertisement itself, and to recover the costs thereof, provided that
notice has been given and removal has not been effected
by the third
party concerned within the stipulated time frame.
56.
Mr Theron submitted, correctly,
that public authorities generally have only those powers which are
expressly or impliedly conferred
on them by their governing
legislation and that the power to institute any particular kind of
litigation must be assessed with
reference to such empowering
legislation.
[7]
57.
Mr Theron submitted that the Act does not entitle Sanral to obtain
the interdictory relief that it seeks. He argued that if
regard is
had to the Act as a whole, it authorises Sanral to approach the High
Court for interdictory relief in order to enforce
compliance in
relation to certain specified sections only, namely: section 43(2)(a)
and section 46(6)(a). By contrast, the Act
does not authorise Sanral
to approach the High Court for interdictory relief in order to
enforce compliance with sections 48 and
50 of the Act. Instead, those
sections afford Sanral a different remedy: the authority to remove
unauthorised structures and recover
the cost thereof from the third
party concerned. Mr Theron submitted that Sanral is limited to the
specific remedy afforded it
by the Act in order to enforce compliance
with sections 48 and 50.
58.
As authority for this, Mr
Theron relied on the judgment of
Alberton
Town Council v Zuanni,
[8]
a in which a Full Bench of
this Court held that where a local authority's by-laws gave it
certain specific rights, including the
right to demolish unauthorised
structures itself, this did not confer on the local authority the
right to require the owner to
demolish the structures. The Court, per
Nestadt J, held as follows:
"To sum up, where a notice in
terms of s 42(2) is not complied with, the local authority can either
have the owner prosecuted,
or itself cause the offending building to
be demolished. (There is authority that, only in the event of it
being thwarted, it is
necessary that a court order authorising it to
effect the demolition be obtained:
Westville
Townships Board v Stedman
1947
(2) SA 1019
(0).) The council is not entitled to an order that the
owner do the necessary work."
[9]
59.
Mr Davis, on behalf of the Agency, submitted in answer to this, that
sections 25 and 26 of the Act granted Sanral wide powers
which
included the power to seek interdictory relief in the present
circumstances and that the specific powers granted to Sanral
in terms
of sections 48 and 50 of the Act do not detract from this.
60.
There are, in my view, two difficulties with this argument. The first
is that this was not Sanral's pleaded case. While Sanral
did make
reference to sections 25 and 26 of the Act in its founding affidavit,
it did so in the context of describing its overall
mandate and not as
the basis for the interdictory relief it seeks. In its founding
affidavit, Sanral's case against the Respondents
and the relief it
sought was based squarely on sections 48 and 50 of the Act.
61.
Secondly, and in any event, sections 25 and 26 of the Act do not, in
my view, authorise Sanral to obtain the relief it seeks
in this case.
Section 25 is entitled "Main functions of Agency" and
describes Sanral's mandate in the following terms:
"The Agency, within the framework
of government policy, is responsible for, and is hereby given power
to perform, all strategic
planning with regard to the South African
national roads system, as well as the planning, design, construction,
operation, management,
control, maintenance and rehabilitation of
national roads in the Republic, and is responsible for the financing
of all those functions
in accordance with its business and financial
plan, so as to ensure that government's goals and policy objectives
concerning national
roads are achieved...."
62.
Section 26 is entitled "Additional powers of Agency" and
confers on Sanral the powers necessary in order to execute
its
mandate. Sections 25 and 26 do not expressly confer on Sanral a
general power of enforcement whether through the institution
of High
Court interdictory proceedings or otherwise.
63.
It is of course true that in
addition to the powers that are expressly conferred on public
authorities, a proper construction of
the empowering legislation may
reveal that further powers have also been impliedly conferred.
[10]
However, other than to simply assert that Sanral has the necessary
implied power, Sanral's counsel did not present any substantive
argument in this regard. It must also be borne in mind that the
general principle in administrative law is that there is a
presumption
in favour of a narrow construction of the empowering
provisions of administrative bodies such as Sanral.
[11]
An argument that Sanral possesses the necessary implied powers would
have to take cognisance of this principle. No such argument
was made
on behalf of Sanral.
64.
In any event however, it is not necessary for me to decide what
Sanral's powers of enforcement are in all circumstances but
only in
the circumstances of this particular case. In this regard, the
judgment of
Alberton Town Council v Zuanni
is on point and I
see no reason to depart from it. As the Court stated there, it may
well be (and there is authority) that a body
such as Sanral would be
entitled to apply for interdictory relief in the event of it being
thwarted in the exercise of enforcement
powers granted to it by
statute. However, where, as here, the body is itself authorised by
statute to do the necessary work, it
is not entitled to an interdict
requiring the relevant third party to do it.
65.
I am therefore of the view that, in this case, Sanral was indeed
limited to the remedies afforded to it in sections 48 and 50
of the
Act in order to address alleged contraventions of those sections by
the Respondents. In any event, as will be dealt with
further below,
sections 48 and 50 afforded Sanral a suitable alternative remedy
which it has failed to utilise.
66.
Mr Davis submitted that,
notwithstanding the wording of sections 48 and 50 of the Act, if
Sanral were to simply remove the billboard
structure and the
advertisement without approaching a Court, this would amount to
spoliation. In support of this, Mr Davis relied
on the unreported
judgment of
Ad Outpost (Pty)
Ltd v Municipality of Cape Town
[12]
67.
That was an application brought
by the applicant, Ad Outpost, as matter of urgency, for the City of
Cape Town to restore it in possession
of a billboard advertisement
that had been removed by the City. The City contended that it had
been entitled to remove the billboard
in terms of its by-Laws. The
Court noted that
"It
was common cause that [the City] would have
a
valid defence to the
application if its spoliation had been carried out in terms of
a
statutory enactment."
[13]
68.
It became necessary for the Court to interpret the By-Laws in
question. They did not expressly authorise the City to remove
unauthorised structures or advertisements. Instead, they provided for
the City to issue an "order" to the relevant third
party
for the removal of such structure or advertisement. In the event of
the third party's failure to do so, the by-laws provided
that the
City could "itself give effect to such order or notice."
69.
The Court held that the By-laws were to be restrictively interpreted
and, on such interpretation, found that the by-laws did
not
contemplate that the City was entitled to "give effect to such
order or notice" without recourse to a Court of law.
70.
The provisions of sections 48 and 50 of the Act are markedly
different from the by-laws that were at issue in the
Ad Outpost
case. They expressly authorise Sanral to remove unauthorised
structures and advertisements and to recover the costs thereof. There
is no need to interpret the provisions of section 48 or 50. Their
terms are clear.
71.
Accordingly, had Sanral acted in terms of sections 48 and 50, its
actions would not have amounted to spoliation and any challenge
to
that effect could have been be met by the defence (watertight in this
case whereas it was not in
Ad Outpost)
that Sanral's actions
were authorised by a statute.
72.
For all of the above reasons, I am of the view that Sanral lacks
standing to obtain the relief sought in its Notice of Motion.
In any
event, as set out below, sections 48 and 50 of the Act afforded
Sanral a suitable alternative remedy.
Suitable
alternative remedy
73.
Mr Theron argued that a further consequence of Sanral's failure to
act in terms of sections 48 and 50 of the Act is that there
is a
suitable alternative remedy available to it which it has failed to
utilise.
74.
It is trite that one of the
requirements that an applicant for interdictory relief must establish
is that there is no suitable alternative
remedy available to it and
that a Court will not ordinarily grant interdictory relief if there
is such a remedy available.
[14]
Mr Theron submitted that Sanral failed to establish this requirement
on its founding papers. I agree. Notably, the alternative
remedies
afforded by section 48 and 50 of the Act remain available to Sanral.
Conclusion
75.
For all of the above reasons, I am of the view that Sanral's
application is fatally defective on its own terms. In the
circumstances,
it is not necessary for me to consider the further
arguments raised with regard to the alleged road safety risks posed
by the advertisement
and the alleged unconstitutionality of sections
48 and 50 of the Act.
76.
Sanral has been unsuccessful and must pay the Third Respondent's
costs. I do not think that Sanral should have to pay the Minister's
costs. The Agency raised the constitutional arguments which there was
ultimately no need to decide. The Minister elected to intervene
in
order to address those arguments. The First and Second Respondents
abided the decision of the Court.
77.
I accordingly make the following order:
1. The application is dismissed.
2. The Applicant is ordered to pay the
Third Respondent's costs.
_________________
BARNES
AJ
Appearances:
For
the Applicant: Adv Davis SC with Adv Kollapen instructed by Friedland
Hart Solomon and Nicolson
For
the First Respondent: Adv Van Heerden instructed by A B Lowe
Attorneys
For
the Third Respondent: Adv Theron SC with Adv Bleazard instructed by
Mostert Attorneys
For
the Fourth Respondent: Adv Motepe instructed by the State Attorney
[1]
GN R 1402 in GG 21924 of 22 December 2000.
[2]
Regulation 5.
[3]
With the exception of regulation 6 which always applies.
[4]
In terms of regulation 5.
[5]
(67270/2010) [2011] ZAGPPHC 24 (7 February 2011)
[6]
Kungwini Local Municipality v Silver Lakes Home Owners Association
and Another 2008 (6) SA 187 (SCA)
[7]
Financial Services Board and Another v De Wet NO and Others
2002 (3)
SA 525
(C) at para 146.
[8]
1980 (1) SA 278 (T).
[9]
At p 282.
[10]
Baxter Administrative Law at pp 404 - 405.
[11]
See for example the case of Burghersdorp Municipality v Coney
1936
CPD 305
in which it was argued that "the COIT9ct statement of
the rights of a municipality is not that it is forbidden to do
anything
when it is not expressly or impliedly permitted to do by
the ordinance, but rather that it may do anything which is not
expressly
or impliedly forbidden to do by it.•Davis J rejected
this submission as "startling• and one which was "opposed
to the whole structure of the ordinance and the culT9nt of
authority." For a more recent application of the principle see
Special Investigating Unit v Naasden 2002 (1) SA 605 (SCA).
[12]
Unreported judgment handed down by the Cape Provincial Division
under case number 2589/99 on 27 May 1999.
[13]
At para 5.
[14]
Setlogelo v Setlogelo
1914 AD 221
at 227.