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[2015] ZAGPPHC 536
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TI Auto (Pty) Ltd v Municipal Manager: City of Johannesburg Metropolitan Municipality and Others (15833/2013) [2015] ZAGPPHC 536 (17 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC OF SOUTH
AFRICA
CASE NUMBER: 15833/2013
DATE: 17 JULY 2015
In the matter between:
Tl AUTO (PTY)
LTD
................................................................................................................
Applicant
And
THE MUNICIPAL MANAGER: CITY
OF
...............................................................
First
Respondent
JOHANNESBURG METROPOLITAN
MUNICIPALITY
JOHANNESBURG ROADS AGENCY (PTY)
LTD
.............................................
Second
Respondent
THE MEC OF THE GAUTENG DEPARTMENT OF
PUBLIC TRANSPORT, ROADS AND
WORKS
.......................................................................................................................
Third
Respondent
AURMOCO PROP
CC
............................................................................................
Fourth
Respondent
MIDRAND AUTO FITMENT
CC
..............................................................................
Fifth
Respondent
THE CHIEF EXECUTIVE OFFICER:
SOUTH AFRICAN SOCIAL SECURITY
AGENCY
...............................................
Sixth
Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1] The applicant claims the following
relief:
“1. That the First, Second and
Third Respondents, jointly and severally be ordered to, within 5
(five) working days from the
date of this order, take all steps
necessary to close, and physically prevent any illegal vehicular or
pedestrian access from Provincial
Road K101 to Erf 374 Randjespark
Ext 119 township.
2. That the First, Second and Third
Respondents, jointly and severally be ordered to, within 10 (ten)
working days from the date
of this Order, demolish and remove all
paving and structures which have been erected by the Fourth
Respondent, its predecessors
or tenants, to create the illegal access
referred to in prayer 1.
3. That the costs of this Application
be paid on a scale as between Attorney and client, by the First,
Second and Third Respondents,
jointly and severally the one paying
the others to be absolved, and by any other Respondent who opposes
this Application. ”
[2] The application is opposed by the
first, second, third and fourth respondents.
FACTS:
[3] The applicant conducts numerous
motor related franchises under the name and style of Tiger Wheel &
Tyre. One of its outlets
is conducted at the corner of Old Pretoria
Main Road and Road K101, Midrand, Gauteng.
[4] The fourth respondent is the owner
of an adjacent business premises, which premises it leases to the
fifth respondent. The fifth
respondent conducts a similar business
than that of the applicant under the name and style of Supa Quick
Tyres on the premises.
[5] Both business premises (“the
premises”) abuts two main traffic routes, to wit the Old
Pretoria Main Road and the
K101. The businesses are, however, not
accessible form these main traffic routes, but from a secondary
service road, which access
has been procured by virtue of a
right-of-way servitude.
[6] A line of no access running along
the border of the property and the K101, appears from a township
layout plan of the property,
which plan was approved by the first
respondent during 2000.
[7] Subsequent site development plans
in respect of the property corresponds with the initial township
layout plan.
[8] Notwithstanding the aforesaid and
in contravention of the line of no access, the premises of the fifth
respondent is directly
accessible from the K101.
[9] This much is common cause between
the parties.
[10] From approximately July 2012, the
applicant has been in constant contact with officials from the first
and second respondents
(“the local authority”) as well as
officials from the third respondent (“the province”) in
order to ensure
the closure of the illegal access. All its efforts
were in vain and this application was launched during March 2013.
DISPUTE
[11] The initial dispute between the
applicant, the local authority and the province centred on the
different functional areas of
the two state institutions. Both the
local authority and the province denied being responsible for
enforcing the line of no access.
[12] At the hearing of the application,
the third respondent admitted that it was responsible to enforce the
line of no access and
indicated that it was in the process of doing
so. The third respondent, however, persists with its defence that the
relief claimed
by the applicant falls within the ambit of the
Promotion of Administrative Justice Act, No 3 of 2000 (“PAJA”).
Should
PAJA be applicable, the application was brought late and the
applicant failed to apply for condonation. In the final instance and
if PAJA does not apply, the application should in any event be
dismissed due to the inordinate delay in bringing the application.
[13] Insofar as the first and second
respondents are concerned, only the issue of costs remains in
dispute.
[14] The fourth respondent has raised
various technical points that remain in dispute and will be dealt
with infra.
PROMOTION OF ADMINISTRATIVE JUSTICE
ACT, NO 3 OF 2000 (PAJA)
[15] The third respondent avers that
its failure to act upon the illegality amounts to administrative
action within the meaning
of PAJA.
[16] In support of the aforesaid
submission, Mr Halgryn, counsel for the third respondent, referred to
the following portion of
the definition of administrative action in
PAJA:
“.... any decision taken, or any
failure to take a decision, by
(a) An organ of State, when -
(i) Exercising a power in terms of the
Constitution or a Provincial Constitution;
or
(ii) Exercising a public power or
performing a public function in terms of any legislation;
or...”
(b)
[17] Mr. Venter, counsel for the
applicant, quite correctly, indicated that the aforesaid portion of
the definition is qualified
by the following wording:
“which adversely affects the
rights of any person and which has a direct, external legal effect,
[18] The Gauteng Transport
Infrastructure Act, No 8 of 2001 (“the Act”), regulates
transport infrastructure in Gauteng
and the enforcement of the
provisions of the Act is assigned to the third respondent. Section 43
provides for the access to and
exit from provincial roads. On the
third respondent’s own version, the access utilised by the
fourth respondent is illegal
and would therefore be in contravention
of section 43. Section 43(10) provides that any person who
contravenes the provisions of
section 43 commits an offence.
[19] The third respondent’s
action, i.e the enforcement of a penal provision in the Act, will
only qualify as an “administrative”
action, if the rights
of the fourth respondent is adversely affected by the action. In my
view, it is difficult to envisage that
the fourth respondent has a
right to act illegal. Mr Halgryn did not refer me to case law that
holds otherwise.
[20] Even if the third respondent’s
action is an administrative action” as envisaged in PAJA,
section 3(1) still qualifies
the right to procedural fairness.
In Grey’s Marine Hout Bay (Pty)
Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
, Nugent JA held as
follows:
“But section 3(1) of PAJA confers
a right to procedural fairness only in respect of administrative
action that ‘materially
and adversely affects the rights or
legitimate expectations of any person.”
[21] In the premises, I do not agree
with the third respondent’s submission that PAJA is applicable
to the facts of this matter.
[22] For as long as the access is
illegal, the applicant may approach the court for appropriate relief.
In the circumstances, delay,
if any, in the launching of the
application, is not a decisive factor.
[23] In the premises, the application
against the third respondent must succeed and costs should follow the
result.
COSTS: FIRST AND SECOND RESPONDENTS
[24] In order to properly adjudicate on
the cost dispute between the applicant and the first and second
respondents, it is important
to have regard to the events leading to
the launching of the application.
[25] On 23 November 2012, the
applicant’s attorney addressed a letter to the first and second
respondents. The letter addresses
the problem with the fifth
respondent’s illegal access to
the premises and states, inter aliaJ the following:
“Our client has, according to our
instructions, in the aforementioned circumstances, for some time,
pursued the matter with
the Gauteng Department of Roads and Transport
(Gautrans) being the authority with jurisdiction over such provincial
route i.e.
Route K101, without success.
Our client has however recently
discovered that, despite the apparent jurisdiction of Gautrans, in
respect of Route K101, the obligation
and duty to do law enforcement
in respect of such illegal access and encroachment, apparently from a
statutory point of view, vests
in your Municipality and hence the
reluctance of Gautrans to act to date hereof. ”
[26] The first and second respondents
were requested to ensure that the illegal access is closed.
[27] According to the applicant, the
second respondent responded in writing to the aforesaid letter and
confirmed that “the
matter has been referred to JMPD and they
have issued the land owner with a legal notice to close down his
illegal access. It is
now up to the Courts to enforce the legal
notice. ”
[28] Nothing transpired further and on
29 January 2013, the applicant’s attorney addressed a further
letter to the first and
second respondents complaining about their
inaction and stating, inter alia, the following:
We have in response to such enquiry and
after intervention by our client’s traffic engineer (Mr. Pieter
Kruger of Techworld)
been informed by Mrs. Esther Schmidt, a Senior
Traffic Engineer and employee of your municipality that a
contravention notice has
been served on the owner of Erf 374 Midrand,
and that your Department is in the process of enforcing the legal
notice. Mr Emmit
from Gautrans confirmed such modus operandi and
indicated that the enforcement of the Town Planning Scheme provisions
rest exclusively
with your municipality. ”
[29] No response was forthcoming from
the first and second respondents. Upon an enquiry by the applicant’s
attorney on 4 March
2013, it appeared that the officials in the
employment of the first respondent were unaware of the complaint. On
6 March 2013 a
certain Soraya Nana, Deputy Director: Legal and
Compliance (Urban Development) addressed the following e-mail to the
applicant’s
attorney:
“From the Deed’s Office
document attached to your e-mail below, the correct description of
the property is Erf 374 Randespark
Ext 119, and not Midrand, as
reflected in your previous correspondence to the City.
This matter has been referred to Mr
Colin Edelstein, Acting Deputy Director: Legal and Contracts
(Economic Development), who will
respond to you shortly.”
[30] Once again, no further action was
taken by the first and second respondents. The applicant’s
attorney as a last resort
and prior to the launching of this
application, addressed a further letter on 3 April 2013 to the first
and second respondents,
requesting the courtesy of a reply to the
previous two letters.
[31] In their answering affidavit
served on the applicant’s attorney on 15 May 2013, the first
and second respondents alleged
for the first time that they are not
the authority responsible for the enforcement of the line of no
access.
[32] The first and second respondents
rely on a variety of legislative instruments in support of their
contention that they have
no authority to enforce the line of no
access. The following portion of the answering affidavit succinctly
summarises their contention:
“19. A Municipality might impose
as a condition of establishment in a township that the requirements
of GDARD are to be observed
by the township owner. Such a condition
would be imposed at the request of another provincial authority. The
Municipality cannot,
under its duty to enforce the provisions of a
town planning scheme, enforce such a
condition of the town planning scheme
in operation. Such a condition would have to be enforced by the
applicable provincial authority
and not the local authority. ”
[33] According to the first and second
respondents, the third respondent insisted on the line of no access.
When the layout plan
was approved by their predecessor, the third
respondent’s request was reflected on the plan. The line of no
access was, however,
outside the township and is only enforceable by
the third respondent.
[34] In view of the fact that the
aforesaid information was mentioned for the first time in the first
and second respondents’
answering affidavit, Mr Mitchell,
counsel for the first and second respondents, submitted that the
first and second respondents
are at least entitled to costs from the
date of service of the answering affidavit.
[35] The third respondent’s
answering affidavit was served on the applicant’s attorney on
16 May 2013. In the affidavit,
the third respondent insisted that it
held due responsibility with the first and second respondents to
remove the illegal access.
[36] This version was persisted with in
its supplementary affidavit filed on or about 23 May 2014.
[37] As stated supra, it was only at
the hearing of the application on 26 May 2015, that the third
respondent accepted responsibility
for the removal of the illegal
access.
[38] It is trite that a successful
party is entitled to its costs. If a successful party, however,
through its conduct, causes the
unsuccessful litigation, such party
may be deprived of its costs. [See: Herbstein & Van Winsen, The
Civil Practice of the High
Courts of South Africa, Fifth edition,
Volume 2 at 963]
[39] This is clearly a case where the
conduct of the first and second respondents prior to the launching of
the application, led
to the present litigation.
I have no hesitation in finding that
the first and second respondents are not entitled to costs up and
until the filing of their
answering affidavit.
[40] Thereafter, the applicant was,
through the assertions of the third respondent, brought under the
firm impression that the first
and second respondents held dual
responsibility for the removal of the illegal assess. The applicant’s
failure to withdraw
the application against the first and second
respondents, subsequent to the filing of their answering affidavit,
is understandable
in the circumstances.
[41] Where a co -defendant / respondent
actively join issue with a plaintiff / applicant against a successful
co-defendant / respondent,
a court may, in the exercise of its
discretion, direct such party to pay the costs of the successful
co-defendant / respondent.
[See: Olivier v Botha and Another
1960 (1)
SA 678
O at 687 G - H],
[42] The only requirement is the
reasonableness of the applicant, in instituting the proceedings
against the successful litigant.
The present matter is a clear
example of such a case. On the facts under consideration, I am
satisfied that the applicant was reasonable
in persisting with the
application against the first and second respondents and should for
this reason not be mulcted with costs.
[43] In view of the principle
enunciated in Olivier v Botha and Another, supra the third respondent
would have been liable for the
costs of the first and second
respondents.
[44] The first and second respondents,
however, did not seek in the alternative a cost order against the
third respondent.
[45] In the premises, no order for
costs will be granted in favour of the first and second respondents.
COSTS: FOURTH RESPONDENT
[46] The fourth respondent raised the
following defences to the relief claimed by the applicant:
i) lack of locus standi;
ii) material misjoinder and
non-joinder;
ii) no cause of action and/or vague and
embarrassing averments made, in respect of the alleged line of no
access;
v) denial that the access is unlawful.
[47] To his credit, Mr Novitz, counsel
for the fourth respondent, did not seriously pursue any of the
abovementioned defences.
[48] It is clear from the facts
mentioned supra, that the fourth respondent’s utilisation of
the access road is illegal.
[49] In the premises, the fourth
respondent’s opposition to the relief claimed by the applicant
is unsuccessful and costs
should follow the result.
ORDER
In the premises, I make the following
order:
1. The third respondent is ordered to,
within 10 working days from the date of this order, take all steps
necessary to close, and
physically prevent any illegal vehicular or
pedestrian access from Provincial Road K 101 to Erf 374 Randjespark
Ext 119 Township.
2. The third and fourth respondents are
order to pay the costs of the application, jointly and severally, the
one to pay the other
to be absolved.
JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
Counsel for the applicant:
Advocate A Venter
ATTORNEYS FOR THE APPLICANT
ADRIAAN VENTER ATTORNEYS &
ASSOCIATES
Counsel for the First and Second
Respondents:
Advocate S Mitchell
ATTORNEYS FOR THE FIRST AND SECOND
RESPONDENT MOJELA HLAZO ATTORNEYS
Counsel for the Third Respondent
Advocate Halgryn SC STATE ATTORNEYS
Counsel for the Fourth Respondent
Advocate L Nowitz NOWITZ ATTORNEYS