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[2013] ZAGPPHC 456
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Emfuleni Local Municipality v Khulu Media Gateway Vereeniging (Proprietary) Limited (62150/2012) [2013] ZAGPPHC 456 (15 November 2013)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO; 62150/2012
DATE:
15 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
EMFULENI
LOCAL
MUNICPALITY
......................................................
Applicant
and
KHULU
MEDIA GATEWAY
VEREENIGING
..........................................
Respondent
(PROPRIETARY)
LIMITED
JUDGMENT
JANSEN
AJ
Background
:
[1]
This
application relates to signs and accessories erected within the area
of jurisdiction of the Emfuleni Local Municipality. The
applicant is
the Emfuleni Local Municipality.
[2]
The
respondent is an entity called Khulu Media Gateway Vereeniging (Pty)
Ltd, formerly known as Lighthouse Advertising (Pty) Ltd.
[3]
The
application is for a mandamus ordering the respondent to ' remove
structures with or without advertising boards, erected by
it
and
listed in an annex to the notice of motion.
[4]
The
respondent reached an agreement with the applicant’s “partial”
predecessor (the'terminology used in the supporting
affidavit) namely
the Lekoa/Vaal Metropolitan Council during or abo
ut
May 2000 in Vereeniging, as w
ell
as in terms of an addendum to the said agreement entered in on 11
July 2002 (at the time the Sedibeng District Control), which
related
to cellular phone masts only.
[5]
In
terms of the agreement, the applicant w
r
as
given the sole and exclusive right to erect outdoor advertising
structures on all of the ' Lekoa/Vaal Metropolitan Council’s
property throughout its entire districts (and cellular masts in terms
of the addendum agreement). The duration of this agreement
was ten
years from the date of signature thereof, namely 26 May 2000. In the
addendum, in paragraph 2 thereof, the duration of
the agreement was
confirmed as being the same as the original agreement.
[6]
In
paragraph 9.2 of the agreement, it is stated that on termination of
the lease agreement, whether by effluxion of time or otherwise,
the
respondent shall remove the signs and all accessories thereto and
shall at its own costs make good any damage to the property
caused by
the erect
ion
and/or removal of the signs.
[7]
It
was further alleged by the applicant that the agreement was never
extended by the respondent and that no new agreement was reached
between the parties in terms whereof the respondent currently has any
rights bestowed upon it akin to those in terms of the original
agreement.
[8]
It
was stated by the applicant that the agreement had terminated by
effluxion of time on 27 May 2010 and that, notwithstanding,
the
respondent erected further sheet pole advertisements on 26 April 2011
in the area of jurisdiction of the applicant. If the
respondent
failed to remove the signs within three months of the termination of
the lease, the council was entitled to charge a
penalty of R5 000.00
per month until the signs were removed.
[9]
On
25 August 2011 the applicant requested the respondent to remove the
street pole advertisements but the respondent’s attorneys
of
record wrote to the applicant indicating that any attempt by the
applicant to remove the advertising boards would be met with
a
spoliation application. The respondent’s stance was that
the
agreement had allegedly been extended by agreement with an
applicant’s representative (or employee).
[10]
The
applicant proceeded to remove the boards and the respondent brought a
spoliation application on an urgent basis, which application
was
struck from the roll for lack of urgency.
[11]
This
was followed by a letter from the respondent’s attorneys to the
effect that the spoliation application would be placed
on the
ordinary court roll. This never transpired. The applicant afforded
the respondent a one month period within which to remove
the newly
erected boards but no response was forthcoming to this letter. The
respondent was also forewarned that the applicant
would have no
option but to launch this application
which
it then proceeded to do.
[12]
In
terms of the contract the applicant’s “partial”
predecessor permitted the respondent to erect outdoor advertising
structures on the council’s property which was defined as
certain roads, including the R42, against payment of a remuneration
or rental, being 10% of the net monthly profit made by the respondent
on the structures.
[13]
As
stated, the original contract was for a ten year duration from the
date of signature - from 26 May 2000. The contract provided
that the
structures remained the property of the respondent. On termination of
the lease agreement, as set out above, the respondent
undertook to
remove the signs and make good any damage to the council’s
property.
[14]
On
the applicant’s version the agreement lapsed by effluxion of
time - presumably on 27 May 2010. Thereafter the respondent
erected
some street pole advertising during 26 April 2011 which the council
removed during July 2011. On 25 August 2011 the council’s
attorneys of record addressed a letter to the respondent’s
attorneys of record stating that the “remaining signs”
would be removed, and claimed R60 000.00 as penalty damages.
[15]
The
respondent seeks to argue that the applicant has not, proved that the
advertisements set out in annex “
A1
”
to the notice of motion, and the accompanying photographs of the
advertisement referred to in annex “
A1”
reflect advertisements belonging to the respondent. This argument is
untenable. If this were the case, then one wonders why the
respondent
brought a spoliation application on an urgent basis (which was not
heard due to the fact that it was held not to be
urgent.) It is also
not explained why the respondent w'ould have threatened to launch a
spoliation application. It is held that
one can safely assume, given
the sole and exclusive rights which were granted to the respondent to
erect advertising sign posts,
that the billboards and street poles
set out in annex “Ai” belong to the respondent. It is
nowhere denied by the respbndent
that
they belong to the respondent, and the correspondence addressed to
the respondent’s attorneys (to which no reply was
forthcoming)
makes it crystal clear that the allegation is that the billboards and
street poles belong to the respondent.
The
issue to be determined
[16]
The nub of the issue between the parties revolves around the
interpretation to be attached to clauses 1 and 2 of the addendum
agreement. For ease of reference, these paragraphs are quoted in
full.
“
1.
Effect and validity of the
original agreement:
The parties agree that the original
agreement will remain in force and remain valid for the duration of
that
agreement.
This
Addendum is to be read in
conjunction
ivith and as part of the original
agreement
as if incorporated therein, save where
this
addendum amends the original agreement, in
ivhich
case the Addendum will take precedence.
2
Duration:
This Addendum will remain in force
and effect for the same period as the original agreement whereafter
the lessee will be granted
1
(one) month from the
termination
date of the original agreement,
to
in writing, to the lessors domicilium indicate that it wishes to
extend the rights conferred upon it in this
Addendum
for a further period of 10 (ten) years. Should the lessee not extend
this Addendum and the 1 (one) month period elapses,
this Addendum
will terminate and be of no further force and effect.”
[emphasis added]
[17]
The
addendum relates pertinently to th
e
erection of cellular, phone
masts
and not to advertising poles and accessories.
[18]
A
reading of the original agreement of lease does not indicate that the
parties agreed that the lessee had the right to extend the
agreement,
or to novate it.
[19]
The
wording to be found in clause 2 of the addendum agreement, namely
that the addendum would remain in force and effect for the
same
period as the original agreement whereafter the lessee would be
granted one month from the termination date of the original
agreement
to, in writing (sic) indicate whether it wished to extend the rights
conferred upon it in the addendum for a period of ten years,
only
makes sense when read as stating that the addendum agreement
terminates on the date that the original agreement terminates,
whereafter the lessee is granted one month within
which
to extend the addendum agreement for a further period of ten years.
Any endeavour to read it in another way is forced, and
renders the
phrase “
whereafter
the lessee will be granted l (one) month from
the
termination date of the original agreement
”
unintelligible, [emphasis added]
[20]
Had
the intention of the parties to the addendum agreement been that it
was to endure for ten years then they could have stated
that
expressly (as they do regarding the period for which the addendum may
be extended). One would also be left with the strange
situation that
the right to extend the agreement had to be exercised upon the
termination of the original agreement, namely one
month after 27 May
2010. If the addendum agreement was intended to endure for ten years
then such a stipulation would be wholly
unnecessary.
[21]
Further,
and in any event, if the addendum agreement was intended to endure
for ten years, the addendum agreement would only have
terminated on
12 July 2012. Why an option to extend it should have been exercised a
month after 27 May 2010, is therefore puzzling.
This in itself
demonstrates that the construction of the addendum agreement by
counsel for the respondent is simply not feasible.
[22]
As stated by
Kellaway
Principles of Legal
Interpretation of
•
Statutes,
Conti'aets and Wills
Butterworths
1995 at page 415: -
“
In earlier interpretation
of instruments the trend ivas to look first to the language used as
the dominant determining factor, and
then to other possible
considerations, for instance whether the literal meaning led to an
absurdity. What I consider to be the
proper approach to the
interpretation or construction of all instruments is embodied in what
I have termed the triple synthesis;
of the language used in context;
the intention of the parties; and the purpose of the transaction.
This is not a
sequential
approach
to the interpretation of anil instrument, and it would appear that
the Earl of Halsburii LC
would
have
supported
this submission
[1]
…
It will be appreciated from what
follows that in recent years, particularly in South Africa and
England, courts have examined the
whole instrument, taking their
stand as to its meaning on any one or more of the aspects making up
the triple synthesis even if
the language the parties have used
appears to be clear.
The essence of the triple
sunthesis approach
•
is to
combine these separate elements of
thought (pertaining
to what the
parties committed to ivriting, ivith what
contractual
intention theu acted, and for what purpose
theu
concluded the contract) into on whole, each being
relative
and correlative to the other.
Interpretation, it is submitted,
cannot be exact if each factor or aspect of the triple synthesis is
taken in isolation and reliance
is placed on any one ivithout
consideration of the others, the true meaning of a contract or
instrument is determined when the
combination of all the aspects of
the triple synthesis points to its meaning.”
[23]
Clause
2 of the addendum sub. cap. “Duration” can also not be
read as granting the respondent the right to extend the
original
agreement for a period of ten years. In any event, it is not for a
deponent to interpret an agreement (especially a person
who did not
enter into the agreement). It is for the court to interpret the
agreement. Most certainly the addendum did not “extend”
the original agreement, nor could it be renewed in terms of any
clause of the addendum agreement.
[24]
Furthermore,
the respondent argues that the lease agreement was extended by way of
a tacit relocation. This argument is similarly
without merit. The
original agreement specifically stipulates that it will terminate
“whether by effluxion of time or otherwise”.
It also runs
counter to the letters of the applicant’s attorneys of record
in which it is
pertinently
stated that the agreement came to an end on 27 May 2010.
[25]
As
argued by counsel for the respondent: —
“
A tacit relocation is an
implied agreed to re-let and is concluded by the Lessor permitting
the Lessee to remain in occupation after
the termination of the lease
and accepting rent from the Lessee for the use and enjoyment of the
property
‘
... both parties adopt and
continue the position uihich the termination of the lease found them
in; ... the Lessor is content that
the Lessee should remain, and the
Lessee is content to
.
remain (Boivhay v Ward 1903 TS at
772
per Innec CJ)
.”
(Cooper Landlord and Tenant
2
nd
ed page 350)
[26]
This
argument is trumped by clause 14 of the original agreement which
reads as follows: —
‘
14.
VARIATION
No addition to or variation,
consensual cancellation or novation o f this agreemen t and
no ivaiver of anu right arising
from this
agreement
or its bi'each or termination
shall
be on any force or effect unless reduced to writing and signed by all
the parties or their duly authorised representatives.
...
”
[emphasis added]
[27]
The
original agreement terminated by effluxion of time and the fact that
the applicant only enforced its rights in 2011 cannot detract
from
this fact. As stated, the applicant articulated its stance regarding
the non-existence of a lease agreement expressly in its
correspondence to the respondent.
[28]
There
is no necessity to deal with the dispute as to whether the addendum
agreement’s right to extension of the lease agreement
had been
exercised as the addendum relates to the erection of cellular phone
masts only. In any event, any right to extend the
rights conferred by
the addendum had to be exercised in writing and delivered to the
applicant’s domicilium citandi et executandi
as set out in the
in the original agreement namely: —
‘
12
DOMICILIA AND NOTICES
12.1
...
12.1.1
...
i2.i.2The
lessor at: —
Lekoa/Vaal
Metropolitan Council
Cnr
Beaconsfield Avenue and Leslie
Street
Vereeniging
”
[29]
This
was never done.
[30]
Furthermore,
had the respondent wished to rely on a tacit relocation, it should
have annexed proof of payment of rental which it
failed to do.
[31]
The
letter which is annexed to the respondent’s founding affidavit,
purportedly extending the original agreement and the addendum
was
delivered to a Sorrious Manela at Box 3, corner Klasie Hauenoa and
Frikkie Meyer Boulevard, Vanderbijlpark, Gauteng, 1900 which
is not
the designated domicilium citandi et executandi. In any event the
said alleged renewal did not take place within one month
as
stipulated by the addendum in clause 2 thereof.
Order
In
the event, the following order is made: —
l.
Compelling the respondent to remove the signs and all accessories
thereto and make good any damage to the property caused by
the
erection and/or removal of the signs referred to in annexure “Ai”
of the founding affidavit of Jacob Teke Sesing
on behalf the
applicant, within thirty (3o)davs.
‘
2
.
Allowing the applicant to appoint a sub-contractor to remove
the
signs
and all accessories thereto and make good any damage to the property
caused by the erection and/or removal of the sign as
listed in
annexure “Ai” should the res
pondent
not comply with prayer 1
.
3.
The
respondent is ordered to pay the sub-contractor as appointed in terms
of prayer 2.
4.
Ordering
the respondent to pay the costs of this application.
MM
JANSEN AJ
ACTING
JUDGE OF THE HIGH COURT
ATTORNEYS FOR THE APPLICANT
NEIL ESTERHUYSEN & ASSOCIATES
INC
Unit
23 & 24 Norma Jean Square
244
Jean Avenue
CENTURION
Tel
No. (012) 664 4113
REF: Mr
Broodryk/mn/V1
46
ATTORNEYS
FOR THE RESPONDENT
KUILMAN
MUNDELL & ARLOW
REF: PDGM/hcb/ICHULU LIGHTHOUSE
Vereeniging/K148
c/o
FRIEDLAND HART
SOLOMON & NICOLSON
Monument
Office Park 4-301 79 Steenbok Avenue MONUMENT PARK Pretoria
Tel:
(012) 424 0200
REF:
MR PAINTER/311758
COUNSEL FOR THE RESPONDENT
ADVOCATE A.I.S. REDDING SC
[1]
CfJaga
t' Diinges, NO and Another; llliiinti r Donees, NO and Another
1950
(4) SA 653
(A).