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[2013] ZAKZDHC 78
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Maribo Media (Pty) Ltd v Body Corporate of the Chartwell Centre Scheme (1456/2012) [2013] ZAKZDHC 78 (8 January 2013)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
Case No: 1456/2012
In the matter between:
MARIBO MEDIA (PTY) LTD
.......................................................................
Applicant
and
THE BODY CORPORATE OF THE
CHARTWELL CENTRE SCHEME
.........................................................
Respondent
JUDGMENT
Delivered on 8 January
2013
Vahed
J:
[1] After hearing an opposed
application brought on an urgent basis
Lopes
J, on 23 February
2012, delivered a written judgment which concluded with the following
order being made by him:
‘
1.
That a rule nisi is issued calling upon the respondent to show cause,
if any, why an order in the following terms should not
be granted:-
(a)
declaring that the respondent's purported cancellation of the lease
agreement concluded between the applicant and the respondent
in
respect of advertising sites on the north and south walls of
Chartwell Centre is invalid;
(b)
interdicting and restraining the respondent from interfering with the
applicant's rights in respect of the lease agreement and
its use of
the sites;
(c)
interdicting and restraining the respondent from claiming or
receiving any amounts in respect of advertising on the sties,
otherthan rental from the applicant, and that Rapid Media Outdoor
Services (Pty) Ltd be directed to continue to pay to the applicant's
agents JB Media Connection the revenue applicable in accordance with
the contract annexed to the applicant's replying affidavit
marked
'AJD4'. Those payments are to be made provided that the applicant
continues to pay rental to the respondent timeously and
in full.
2.
That the relief set forth in sub-paragraphs I (b) and (c) above shall
operate as interim orders with immediate effect, and are
to continue
to apply, and the rule is extended, until confirmed or discharged by
an order of this court.
3.
That the costs of this application and the costs of the opposed
hearing on the 20th February 2012 are reserved for the decision
of
the court finally deciding the application.
’
[2] During October 2012 respondent
launched an interlocutory application in terms of which it sought the
discharge of the interim
relief set out in paragraph 2 of the order
made by
Lopes
J together with an order that the applicant pay
the costs of the interlocutory application as well as the costs of
the opposed
hearing on 20 February 2012.
[3] The facts which served before
Lopes
J have been summarised in his judgment (which can be
found at
[
2012]
ZAKZDHC 7 (23 February 2012)
) and I set these out here:
‘
[1]
The applicant in this matter carries on business providing a variety
of media and advertising services, including the sourcing
and leasing
of outdoor advertising sites. It concluded a series of agreements
with the respondent in terms of which the respondent
granted the
applicant permission to erect advertising structures on the north and
south facing walls of its property known as Chartwell
Centre in
Umhlanga Rocks, KwaZulu-Natal.
[2]
The basis of the agreement was that the respondent allowed the
applicant to erect advertising structures and to advertise for
its
clients on those structures, and in return the applicant paid to the
respondent a monthly rental. The applicant paid the rental
to the
respondent out of income which it received from an advertising agency
(in this case referred to as Rapid Media Outdoor Services
(Pty) Ltd
(‘Rapid’)) who in turn procured the ultimate client, Cell
C, whose wares were advertised on the billboards.
[3]
The contract endured for a number of years with the Cell C
advertisements being flighted on the structures erected on the
respondent’s
building by the applicant. On the 16
th
September 2011 the respondent’s
attorney addressed a letter to the applicant. That letter was clearly
precipitated by concerns
which the respondent’s insurers had
regarding the structures erected on the respondent’s building
by the applicant.
In the letter the respondent requested that the
applicant provide certain information to it. In addition it referred
to an outstanding
amount of rental as at the 31
st
August 2011 being a sum of R60 499,74
in respect of which the respondent’s attorney urged the
applicant ‘to ensure that
the account be brought up to date as
a matter of urgency.’
[4]
On the 20
th
October 2011 a letter was addressed to
the applicant by the respondent’s attorney, purporting to
cancel the agreement. The
cancellation was on the basis of the
applicant’s failure to comply with the terms of what it
referred to as ‘the breach
letter’ of the 16
th
September 2011. It recorded that ‘the
material breaches of the material terms of the Agreement which we
have referred to in
the breach letter, have not been rectified’.
[5]
As a consequence of the respondent’s purported cancellation of
its agreement with the applicant, Rapid was notified that
an entity
known as Africa Responds Clearly Media Holdings (Pty) Ltd (‘Arc’)
claimed to have been given the rights to
place advertising on the
applicant’s billboards, and Rapid was requested to pay Arc for
that advertising as from the 1
st
December 2011. Rapid had adopted the
attitude of a stakeholder and refused to pay either Arc or the
applicant.
[6]
The upshot of the aforegoing is that the applicant would be denied
its income from Rapid. According to the applicant’s
Director of
Development, one Dwarikapersadh, this revenue represents the
applicant’s largest single source of income and
is allegedly
its only steady and reliable income stream, constituting
approximately half of the applicant’s monthly turnover.
The
applicant is consequently dependant upon that income in order to
continue operating and, in addition were that income to be
suspended,
the applicant would be compelled to cancel various agreements with
independent contractors who operate as its staff.
[7]
Accordingly the applicant has brought an application for urgent
relief in terms of which it seeks a rule nisi declaring the
purported
cancellation of the lease agreement to be invalid, with interim
relief interdicting and restraining the respondent from
interfering
with its rights in terms of the lease agreement and its use of the
respondent’s building to advertise; and further
interdicting
and restraining the respondent from claiming or receiving any amounts
in respect of the advertising on its building
other than rental from
the applicant.’
[4]
Lopes
J, in finding for the applicant on an interim
basis, reasoned as follows:
‘
[15]
In my view the public’s constitutionally enshrined right of
access to justice would be poorly served were applicants
to be barred
from bringing urgent applications where they have shown that the very
survival of their business, and the livelihood
of shareholders,
employees and others dependant upon it, are in jeopardy unless an
application is heard urgently.
[16]
I am satisfied that the applicant has made out a case for urgency.
The respondent has delivered its answering affidavits, and
the
applicant has delivered replying affidavits. There was no request
from the respondent’s counsel that the matter be adjourned,
albeit for a short period of time, to enable further affidavits to be
filed. I accept that a fuller and more complete answer to
the
applicant’s application papers will be delivered in due course
by the respondent. However, I am of the view that there
is no
prejudice to the respondent in my hearing this application, and I
accept the reasons for urgency set out in the applicant’s
affidavit to the effect that cutting off the income stream which it
hitherto enjoyed pursuant to its contractual arrangements with
the
respondent, would imperil the very survival of the applicant.
[17]
What finally needs to be considered is whether the applicant has
established the requisites for an interim interdict. With
regard to a
prima facie right, I have considered all the affidavits. The
contractual arrangements between the parties prior to
cancellation
appear to be common cause. The cancellation itself has been attacked
on the basis that the applicant was not in default
and that the
so-called ‘breach letter’ did not sufficiently comply
with the requirements of such a notice as to bestow
upon the
respondent the right to cancel.
[18]
It would appear that the complaints of the respondent in the ‘breach
letter’ were either matters with which the
applicant claims to
have already complied, or were matters not covered by the terms of
the agreement. The outstanding amount alleged
of R60 499,74 as at the
31
st
August
2011 is alleged by the applicant not to have been due at that stage
and that the only amount which was ‘in arrears’
was R30
000, which was paid. The applicant contends that it was in any event
not due because it was claimed by the respondent on
a basis not
covered by the contractual arrangements between the parties. In my
view the applicant’s right is accurately described
as ‘prima
facie established though open to some doubt’ as envisaged in
Olympic
Passenger Service (Pty) Ltd v Ramlagan
1957
(2) SA 382
(D).
[19]
There is no doubt that the applicant has a well-grounded apprehension
of irreparable harm if interim relief is not granted,
and it
ultimately succeeds in establishing that the contract was wrongly
cancelled by the respondent. It will be left with insufficient
operating income to continue its business.
[20]
I am satisfied that the applicant has no other satisfactory remedy in
that it will be cold comfort to it to recover damages
in due course,
if its business has, due to a lack of operating capital, collapsed
and it has lost its goodwill.
[21]
With regard to the balance of convenience, the prejudice to the
applicant if the relief is not granted clearly outweighs the
prejudice to the respondent if the application is granted. If the
application is not granted the applicant is in danger of losing
its
business. If the application is granted the respondent will continue
to receive the rentals to which it was entitled in terms
of the
contractual arrangements between the parties and which would appear
to expire at the end of December 2012.
[22]
I am accordingly of the view that the applicant has established its
entitlement to interim interdictory relief.’
[5] In asking for the interim relief
to be discharged the respondent alleges that new facts have
subsequently come to light, which,
had they been known at the time,
would have influenced
Lopes
J differently.
[6] In its founding affidavit the
applicant alleged that the advertising structures erected on the
respondent’s building had
been so erected “…to the
knowledge of the Respondent, with due authority from the eThekwini
Municipality (“the
municipality”).” The applicant
went on to state that “[t]he Respondent was well aware of this
because the authority
to erect the signs … is addressed to the
Respondent.”. In the course of making that assertion the
applicant annexed
(“Annexure ‘F’”) to its
founding affidavit a copy of the document referred to.
[7] In the present interlocutory
application the respondent asserts that
Lopes
J relied on the
applicant’s submission that that document constituted the
“authority” in terms of which the advertising
structures
had been erected and in terms of which they were lawfully to remain
in situ
. I reproduce overleaf a facsimile of Annexure ‘F’.
Annexure on PDF
[8] In the founding affidavit deposed
in support of the interlocutory application the respondent says the
following:
‘
18.
Subsequent
to the granting of the interim relief, the Respondent's attorney
established that :-
18.1.
each billboard required and was subject to its own application
process and approval;
18.2.
annexure "F" to the Applicant's Founding Affidavit could
therefore never have been "the authority" in
respect of
both billboards;
18.3.
according to the Ethekwini Municipality's records in any event,
annexure "F" does not accurately reflect the approval
granted and is an altered or tampered with version of the approval.
18.4.
there were in fact two application processes :-
18.4.1.
The one in respect of the North face of the Respondent's building
under application number 00200807S; and
18.4.2.
The one in respect of the South face of the Respondent's building
under application number 00220907S.
ANNEXURE
"F" TO THE APPLICANT'S FOUNDING AFFIDAVIT
19.
Annexure
"F" to the Applicant's Founding Affidavit reflects that the
eThekwini Municipality approved the erection and
the retention of the
billboards, on the Respondent's building, for an indefinite and
undefined period.
20.
20.1.
The Respondent's attorney of record obtained a photocopy of the
original approval document from the eThekwini Municipality
in respect
of the North face of the Respondent's building under application
number 0020-08-07S.
20.2.
I annex hereto marked "SMH2", a copy of that document.
20.3.
Annexure ISMH2" hereto records, in the second paragraph thereof:
"Please
be advised that the above application is APPROVED in terms of and in
compliance with the eThekwini Municipality's Advertising
Signage
Policy, subject to the following conditions;
1.
The approval being granted for a period of five years
.
2.
An engineers stability certificate being submitted to this Department
on completion.
3.
Content not to exceed 6 bits of information.
4.
Lettering height to be a minimum of 500mm.
5.
Wall to be maintained to the satisfaction of the Head of the
Department.
6.
The sign must be erected within six months of the date of approval
and this office must be notified of the date of erection,
failing
which, the approval will lapse."
(Underlining
added)
21.
In
contrast to the above, Annexure "F" to the Applicant's
Founding Affidavit reflects the following:
"Please
be advised that the above application is APPROVED in terms of and in
compliance with the eThekwini Municipality's Advertising
Signage
Policy, subject to the following conditions;
An
engineers stability certificate being submitted to this Department on
completion.
Content
not to exceed 6 bits of information.
Lettering
height to be a minimum of 500mm.
Wall
to be maintained to the satisfaction of the Head of the Department.
The
sign must be erected within six months of the date of approval and
this office must be notified of the date of erection, failing
which,
the approval will lapse.
"
22.
22.1.
Annexure "F" to the Applicant's Founding Affidavit does not
reflect the same conditions as contained in annexure
"SMH2"
hereto.
22.2.
Significantly, what is absent from annexure "F", is the
first condition which appears on annexure "SMH2",
namely,
that the approval was "
granted for a period of five years
"
only.’
[9] I reproduce overleaf a facsimile
of annexure “SMH2”
Annexure on PDF
[10] The respondent goes on to state
the following:
‘
23.
In
granting the interim relief as it did, this Court had regard to, an
indeed based its Order on the allegations in the Applicant's
Founding
Affidavit that annexure "F" thereto was the approval
document and that the retention of the billboards on the
sides of the
Respondent's building was lawful and would continue to be lawful for
an indefinite period.
24.
24.1.
I annex hereto marked ISMH3", a copy of a letter dated 1 August
2012 from the eThekwini Municipality sent to the Respondent's
attorney of record herein, Mr Massimo Dus, confirming that annexure
"SMH2" hereto is the actual approval.
24.2.
In annexure "SMH3" hereto, the eThekwini Municipality
records the following :-
"Dear
Mr.Dus
Ref.:
Chartwell Centre Wall Billboard signs - Umhlanga Reference is made to
your e-mail sent to this office on the 20th July 2012.
This
letter serves to confirm the following:
•
Approval
was granted for a period of 5 (five) years to the Chartwell Centre
Controlling Body to erect and manage the wall mounted
billboard
signage on its retaining walls in August 2007.
•
This
approval will lapse on the 31st of August 2012.
•
The
signs must be removed at the end of the approval period. Should the
Owners fail to remove the signs and their structures, the
municipality will take legal action.
•
The
copy of the approval letter stating six (6) conditions of approval
where condition number one (1.) states: 'The approval being
granted
for a period of five years', is the correct notice of approval."
25.
25.1.
It follows that, if annexure "SMH2" is the correct approval
document, then annexure "F" to the Applicant's
Founding
Affidavit cannot be.
25.2.
The Applicant is invited to explain :_
25.2.1.
the discrepancy between annexure "F" to its Founding
Affidavit and annexure "SMH2" hereto, and
25.2.2.
how it came to be in possession of the document which is
annexure
"F" to its Founding Affidavit.
26.
Whatever
the explanation by the Applicant as to annexure "F" to its
Founding Affidavit, it is clear that the continued
retention of the
billboards on the Respondent's building, as of 31 August 2012, became
illegal.
27.
It
is submitted that, had the Honourable Judge presiding, in the
application for interim relief, been aware of the correct situation,
he would not have granted the interim Order, alternatively, would not
have granted the Order in the terms in which it was granted.
28.
At
the very least, he would have limited the period of application of
the interim Order to the period for which the retention of
the
billboards on the Respondent's building would remain lawful, in other
words, for a period of no more than five years from the
date on which
the approval was granted.
29.
In
either such event, it is no longer legally permissible for the
Respondent to retain the billboards on its property.’
[11] The allegations relating to the
municipality’s involvement were confirmed on oath with an
affidavit being submitted by
Ms
Maema
.
[12] The respondent goes on to state
that
Lopes
J was misled by a material misstatement made under
oath and that in granting the interim relief he was misled by the
statement
that annexure ‘F’ was
the authority to erect
the signs
.
[13] The respondent also takes issue
with the fact that the deponent to the applicant’s founding
affidavit when the interim
relief was sought, one
AshveerJairajhDwarikapersadh
(“
Dwarikapersadh
”),
who then described himself as the applicant’s Director of
Development, was at the time the municipality’s
approvals were
granted employed by the municipality as the Advertising Signage
Assessment Officer and was intimately involved in
the approval
process. He did not disclose this information in his affidavit.
[14]
Dwarikapersadh
again deposed to the principal affidavit in
opposition to the interlocutory application. He says the following:
‘
3.
Before I deal with the allegations in the respondent's affidavit, I
first wish to explain the history of my employment with the
Ethekwini
Municipality, and how I later came to be involved with the applicant.
The respondent implies that there is something
sinister in this, but
this is completely unfounded. My history was not disclosed in the
main application, because it had no relevance.
4.
I started employment with the eThekwini City Council in 2001 as a
temporary clerk in Plan Submissions department. I remained
in this
position until 2004 when I was appointed to the Signage Department as
Signs Approval and Record Officer.
5.
At that time Mr Benjamin Ramnarin headed the Signage Department and I
received extensive training from MrRamnarin who was skilled
and
experienced in this field.
6.
The application process was as follows. I would receive any
application for the approval of signage. There was a checklist to
make sure that all the necessary documents were submitted with the
application. I would discuss the application with MrRamnarin
and once
he and I had reached agreement regarding the approval or rejection of
the application we would refer the application to
the Head of the
Planning Department, MsMoonsamy, with a recommendation.
7.
At this time we hada Signage Policy which applied to all applications
for outdoor advertising signs. During the period of my
employment
there, we seldom referred to the provisions of the Building Bylaws
pertaining to advertising signs. The primarily drafter
of the signage
policy was MrRamnarin, so he was very knowledgeable of all the
requirements of the Policy.
8.
This was the process and work order until 2007 when MrRamnarin's post
was advertised and filled by one NtombiMaema.
9.
It transpired that MrRamnarin had only been appointed as Acting
Manager of the Department and that this was not his permanent
post,
although he had worked as the
de facto
Manager of Signage
since before my arrival in 2004, until 2007.
10.
Mrs. Maema came from Bloemfontein, where she had been an
Environmental Officer, and she had no signage experience whatsoever.
MrRamnarin returned to his designation as signage inspector, a very
junior position in the Signage Department. He was understandably
disgruntled and thereafter refused to participate in any of the
signage application proceedings or to offer any advice thereon.
11.
As he had been my mentor I felt the injury personally and decided to
follow his lead and not to give Mrs. Maema any support
whatsoever. My
attitude at the time was that if she was appointed to the position
she must know the work. My intention was to make
it uncomfortable for
her in the hope that she would resign, and MrRamnarin could resume
what I perceived to be his rightful position
as the Head Manager of
Signage. I realise now that this might have been youthful naiveté,
but I was only 20 when I commenced
working for the Municipality, and
it was my first permanent job.
12.
It goes without saying that the situation resulted in lots of
animosity, especially between myself and Mrs. Maema. This of course
divided the Department and as a result thereof I left at the end of
November 2007.
13.
I did not become involved with the applicant immediately. Initially I
consulted to various companies, assisting them to make
applications
for signage approval. I commenced consulting to the applicant,
although not exclusively, in around March or April
2008. Later, in
2011, the applicant offered me full time employment and a
directorship, which I accepted.
14.
During my years with the Municipality, outdoor advertising companies
and/or property owners would use so-called experts to make
application to and liaise with the Municipality to get applications
approved. MrBirtSimes was such a person. Apparently MrSimes
was
previously employed in the Signage Department of the Municipality,
and I believe that he took up consultancy after he retired.
15.
During my years at the Municipality, I had many dealings with
MrSimes, and came to know him very well. I respected his knowledge
of
signage applications, signage policy and signage law. MrSimes'
applications were, in contrast to many others, of a very high
quality
and his success rate in the Signage Department was very high, with an
estimated approval rate of more than 90%.
16.
When I was employed in the Signage Department there were applications
by
various
people to place advertising signs on the Chartwell Centre, including
the Body Corporate itself. All such applications had
been
refused.Umhlanga, where the building is situated, has very limited
outdoor advertising opportunities due to various restrictions
applicable in the area.
17.
During about the middle of 2007, MrSimes approached the Signage
Department with a signage proposal for the Chartwell Centre.
MrSimes'
approach in this matter was quite unique in that he engaged a
specific design for the advertising structure which was
not
previously done. I considered MrSimes' proposal and it seemed
acceptable to me, in view of the Policy and approval criteria.
I took
it to the Manager of Planning, LekhaAllopi, and discussed a whole
host of planning issues with her. The new design, which
didn't look
like the conventional lip and bar advertising signage present in the
CBD currently, met with her approval and she indicated
that she would
be happy to approve the said signage application.
18.
Of course, a relevant factor was that the property in question is
zoned business, residential and commercial. However, one of
the
differences in MrSimes' application was the size of the proposed
signage. Most previous applicants proposed to cover the entire
wall
facades, which was not acceptable to the Municipality and was in
contravention of the provisions of the Policy.
19.
Only after MrSimes received favourable response for his proposal did
he lodge a formal application on behalf of the Centre.
By then, I was
familiar with the detail of his application and therefore presented
it to MsMoonsammyimmediately, with my recommendation.
MsMoonsammy was
satisfied with all the aspects, inclusive of the Planning
approval,and the attitude of the other relevant Departments
had
already been canvassed so she was able to approve the application
immediately. I realise that this was somewhat unconventional,
but
MrSimes had the trust and respect of those involved with signage at
the Municipality, and he worked with them all the time,
in his
capacity as a consultant.
20.
It was me who prepared the approval letter for MsMoonsamy to sign. I
did not recommend an approval period for the application,
for the
following reason. Not long before MrSimes made the application for
Chartwell Centre, MrRamanarin had rejected an application
for various
sky signs on a couple of buildings. The applying party appealed to
the full council and the approval was granted, but
without any time
period or any other conditions imposed.ln fact, it seems that neither
the policy nor the bylaws provide for a
stipulated time period.It was
after this that I considered the Chartwell Centre application, and I
did not stipulate a time period
when I recommended approval, because
of this prior experience. I therefore believe that the document which
is annexure NM2 to MrsMaema's
affidavit is incorrect, and that the
approvals which were finally issued to the respondent, were in the
form of annexure "F"
to my affidavit in the main
application.
21.
MrsMaema does not have personal knowledge of what occurred with this
particular approval, and her evidence in this regard is
hearsay. The
approval decision lay with MsMoonsammy. I did the recommendations
only and, if I recommended acceptance of an application,
I had to
convince MsMoonsammy that the application was within the parameters
of the policy. The policy does not demand an approval
period, and
neither do the by-laws. I therefore recommended approval for an
open-ended period.
22.
At first MrSimes only made application for the north elevation of the
building. Once formal approval was given for this, he
lodged the
application for the south elevation. This approval was granted on 31
October 2007. A copy is annexed hereto marked "B".
As I can
recall it is signed by LihlePhewa - MsMoonsamy's deputy head.
23.
In March of 2008 I was contacted by MrRidwaan Mohamed of the
applicant. He invited me to become a consultant to the applicant,
on
the understanding that I would also be able to do work for other
companies. He explained to me that MrSimes was getting old
and
wondered whether I would assume the same role that MrSimes fulfilled
for the applicant. I immediately agreed to this.
24.
However, I was not able to achieve any success for the applicant in
this capacity. All applications I made on behalf of the
applicant
were rejected by the Municipality. This might have been partly by
virtue of the animosity between MrsMaema and me, but
after
discussions with others in the industry, I realised that very few
other people were receiving approvals after I left.
25.
The feedback I had from others was that nobody inside the Department
knew anything about signage. I agree with this assessment
- the only
two people that knew anything about signage were MrRamnarin and me,
and MrRamnarin had refused to partake in approvals
after MrsMaema was
engaged.
26.
By virtue of the acrimony between me and Mrs. Maema, the Municipality
then started to remove billboards which belonged to the
applicant,
despite the fact that the billboards had Municipal approval. In the
African Billboards judgment, which is binding precedent
in this
division, the court held that Municipality is not entitled to remove
advertising signage belonging to third parties, without
a court
order. This resulted in the applicant obtaining interdicts against
the Municipality.
27.
Despite these difficulties, I built up a good relationship with Mr
Mohamed of the applicant and assisted him in other jurisdictions,
including Johannesburg and Tshwane, to obtain approvals for billboard
applications. In 2011 I was offered a directorship by the
applicant
and full time employment, which I accepted.’
[15] I have deliberately quoted
extensively from the affidavits because I believe it to be necessary
for a proper evaluation of
the probabilities.
[16] It is apparent that at the time
he deposed his affidavit in the interlocutory application
Dwarikapersadh
, under oath, affirmed his belief that annexure
‘F’ was a legitimate document and that the municipality’s
Ms
Maema
was, at best, mistaken in her view concerning the
approvals.
[17] I reproduce overleaf a facsimile
of the approval annexed to Dwarikapersadh’s affidavit as
annexure ‘B’.
Annexure on PDF
[18] That, he said was the approval
for the signage on the south face of the respondent’s building,
while annexure ‘F’
was the approval for the signage on
the north face.
[19] On the papers, therefore, a
dispute of fact emerged concerning this crucial aspect of the matter.
[20] When the matter was argued before
me on 13 December 2012 both Ms
Mills
, who appeared for the
applicant, and Mr
Phillips
, who appeared for the respondent,
were agreed that no referral for the hearing of oral evidence was
necessary because the applicant
no longer disputed that annexure ‘F’
to its founding affidavit in the interim relief application and
annexure ‘B’
to its answering affidavit in the
interlocutory application did not reflect the approval authority
granted by the municipality.
[21] The applicant nevertheless
persisted in its opposition to the relief claimed in the
interlocutory application, and, together
with its answering
affidavit, delivered a conditional counter-application, which I will
deal with later in this judgment.
[22] It was thus common cause that the
municipal approval for the signage expired on 31 August 2012 while
the contract of lease
between the applicant and the first respondent
will terminate in July 2013.
[23] The essence of the applicant’s
case is that:-
(a) the respondent has not proved
illegality because it has not put up any evidence of any bylaw
indicating that it is illegal to
display a sign without municipal
approval. Bylaws must be pleaded and a court cannot take judicial
notice thereof.
(b) Even if it were unlawful, the
contract between the parties is still capable of lawful performance
and accordingly the respondent
must be compelled to re-apply for
approval.
[24] The matter is not that simple. I
cannot simply ignore what has happened.
[25] Any examination of the facsimile
documents set out above, even by the untrained eye, would reveal that
something was amiss.
Annexure ‘F’ and the correct version
put up by the respondent is one and the same document. The correct
version has
in some way been ‘doctored’ or interfered
with to produce annexure ‘F’. That much is clear. The
signatures
are identical in every respect and the date stamp and its
position and alignment on the document is identical in every respect.
What is clear is that the reference line reading ‘
Name of
Business:
Body Corporate Chartwell Centre
’
has been obliterated as was the first condition and the numbering.
[26] For
Dwarikapersadh
to
confidently state under oath that annexure ‘F’ was the
correct document, in the face of Ms
Maema’s
assertions,
and to thereafter simply accept that it was not, without tendering
additional evidence, is utterly unacceptable, especially
not after
the elaborate explanation he embarked upon concerning the state of
affairs that existed at the municipal offices while
he was employed
there.
[27] Equally baffling is the assertion
that he prepared both approval documents (annexure ‘F’
and annexure ‘B’)
yet they were different, annexure ‘B’
containing the reference line omitted in annexure ‘F’. If
he prepared
both, with both containing identical line and sentence
breaks, that omission would not have occurred. The only conclusion
that
can be reached is that the original of annexure ‘B’
was ‘doctored’ at a different time, without sufficient
care being taken to ensure that it was identical in every respect to
annexure ‘F’.
[28] The only reasonable inference
that can be drawn from this is that a reference to oral evidence was
avoided because
Dwarikapersadh
could not face
cross-examination. His assertions on oath are palpably implausible.
On the probabilities I must conclude that he
has been less than
completely truthful.
[29] I turn now to deal with Ms
Mills’
principal submission that the respondent’s failure to plead and
prove the bylaws, and consequently, the illegality, is fatal
to its
case. In support she referred me to
R H Christie
,
The Law
of Contract in South Africa
, 6
th
ed,
LexisNexis
,
at page 357 where the learned authors state that a “…by-law
must be pleaded in order to bring it to the attention
of the court…”.
In support of that statement the learned authors rely on the
authority of
RaadvirKuratorevirWarmbadPlase v Bester
1954 (3)
SA 71
(T).
[30] During the course of argument I
asked counsel whether that situation could continue to hold true in
our modern constitutional
era. They were unable to assist in that
regard, but in fairness it must be recorded that they were unprepared
to deal with the
issue I raised.
[31] In
Zeffertt&Paizes
,
The South African Law of Evidence
, 2
nd
ed,
LexisNexis
, at page 876 the learned authors deal with the
topic thus:
‘
At
common law the courts do not take judicial notice of legislation such
as proclamations made under statutory authority, government
notices
or regulations, or municipal or railway by-laws. They must be
specifically pleaded and proved by the party who seeks to
rely upon
them.’
For that statement the learned authors
rely on the decisions in
Durr v SAR&H
1917 CPD 284
,
Serobe
v Koppies Bantu Community School Board
1958 (2) SA 265
(O) and
Benator NO v Worcester Court (Pty) Ltd
1983 SA 126
(C).
[32] The learned authors in
Schmidt
&Rademeyer
,
Law of Evidence
,
LexisNexis
, at
page 6-18 offer the following treatment:
‘
Judicial
notice extends to “any law or any matter” published in
the
Government
Gazette
or Official Gazette and, in criminal proceedings, to “any law”
published under the supervision of or on the order of
the government
printer. Thus it does not extend to subordinate legislation which is
published elsewhere.’
They rely, for that statement, on
Edward A Shaw & Co v Electronic Diamond Processing (Pty) Ltd
1971 (1) SA 581
(C),
S v Van Rensburg
1973 (2) SA 543
(T) and
on
Serobe’s
case and
Benator’s
case
supra.
[33] The reasoning for the prohibition
against the taking of judicial notice of municipal bylaws is perhaps
best explained by the
following extract from
Serobe’s
case (270B – 271A):
‘
In
England judicial notice, as regards legislative acts, was at one time
restricted to Public Acts of Parliament. By the Documentory
Evidence
Acts 1845, 1868 and 1882 it was extended to Private Acts of
Parliament, Proclamations, Orders in Council, and Regulations
issued
by Government Departments or officials. (See
Rex
v.
Gaisie
,
1911
C.P.D. 76
, and Hibbert’s
Law
of Evidence
,
4th ed. p. 11.) No similar legislation has been enacted in South
Africa except in regard to criminal proceedings for which see
sec.
251 of Act 56
of 1955 in terms of which
“
judicial
notice shall be taken of any laws or
Government
Notice
or
of any other matter which has been published in the
Gazette
or
the official
Gazette
of
any Province.”
Until
the enactment of that section in 1917 as
sec.
280
of
Act
31
of 1917
,
it has been generally held
“
both
in England and here, that regulations that affect particular classes
of individuals have to be proved before a Court of law,
and that
Judges and magistrates do not take judicial cognizance of them”—
per
WESSELS,
J., in
Rex
v.
Theunissen
,
1916
T.P.D. 324
at p. 326.
After referring to
Rex
v
.
Ferreira
,
12
E.D.C. 91
, WESSELS, J., proceeded as follows in
Theunissen’s
case
at p. 326:
“
That
is a distinct decision to the effect that regulations that have been
published in the
Government
Gazette
,
and that have been framed under an Act of Parliament, must be proved
by the production of the
Government
Gazette.
It
is unnecessary for me to quote other cases because they are all
decided upon the same lines. The reason probably is that, although
Judges are bound to know the statutes, they are not supposed to have
at their finger’s ends the particular regulations that
affect a
small class of the community only. They are only required to consider
these regulations when a question with regard to
them is raised
before the Court, and then it is the duty of the person, who relies
upon a particular regulation, to put such regulation
before the
magistrate or Judge; if he fails to do so he has failed to prove the
existence of such a regulation. This has its practical
side, too,
because although a regulation may have been gazetted, there may be
some defence with regard to its validity, and that
defence can only
be dealt with if the Court has before it all the particulars with
regard to its promulgation. Those particulars
can only be ascertained
by the Judge when he has the actual
Gazette
before
him. It is, therefore, the duty of the Crown, when it relies upon
such a regulation, to place the
Gazette
which
contains it before the judicial officer. That has been the practice
in the past and I have never seen it questioned. For that
reason I
think, as a doubt has been cast upon the practice, we ought again to
affirm it.”
In
Durr
v.
S.A.
Railways and Harbours
,
1917
C.P.D. 284
, it was held that the Court does not take judicial
notice of by-laws and regulations but requires them to be proved. At
p. 286
of the judgment KOTZE, J., said that:
“
No
doubt there are several matters of which the Court will take judicial
cognizance on the principle
curia
novit jus
,
and a public statute is one of these. But private Acts, if relied on,
must be alleged, and similarly it is necessary to set out
a by-law or
regulation. The Court cannot and does not, from the nature of things,
take judicial cognizance of the existence of
a particular bylaw or
regulation.”
(See
also
Rex
v.
Gaisie
,
1911
C.P.D. 76
, and
BrandfortMunisipaliteit
v.
Esterhuizen
,
1957 (1) S.A. 229
(O) at p. 232.)’
[34] It seems to me that we have come
a long way since
Theunissen’s
case. Modern research
methods which include access to the internet and electronic media
have resulted in counsel and judges having
access to much more at
“their finger’s ends”.
[35] More importantly, however, is
that in my view the provisions of section 34 of the Bill of Rights
require that judicial officers
do everything possible to ensure that
litigants enjoy the fullest possible access to the courts:
’
34.
Access to Courts.
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum’
[36] Section 8 of the Bill of Rights
reminds us that it applies to all law and binds all persons and
provides, in sub-section 3,
that in order to give effect to a right
in the Bill, a court must, where necessary, develop the common law.
[37] A municipal bylaw is
law
as envisaged in section 34 of the Bill of Rights.
[38] I am mindful of the fact that,
notwithstanding the exponential increase in material available, it is
still impossible to expect
judicial officers and other decision
makers to know of, and have at their “finger’s ends”
every single regulation,
bylaw and notice. In general, the rule set
out in
Theunissen’s
case must continue to be good law.
However, in my view, it needs to be relaxed in some measure.
[39] Where, in a particular case, it
is brought to the attention of the presiding official that a
particular bylaw, regulation or
notice, having a bearing on the
matter at hand, exists, she or he becomes duty bound, where at all
possible, and within the reasonable
exigencies of the case, to seek
out such bylaw, regulation or notice in order to properly decide the
matter at hand. Not to do
so would, in my view, fall foul of section
34 of the Bill of Rights and, particularly where judges are
concerned, offend their
oath of office.
[40] The existence of such bylaw,
regulation or notice, having been brought to the attention of a
judicial officer, demands that
it be considered for the proper and
expeditious resolution of the dispute, and to seek refuge in an
ancient rule requiring such
matter to be specifically pleaded would
be an exercise in placing form over substance.
[41] In her heads of argument Ms
Mills
has not only drawn my attention to the municipality’s relevant
bylaws but has also made specific reference to and quoted
portions
thereof. She very kindly made the relevant provisions available to me
and I consider myself duty bound to refer to them.
[42] Chapter IV of the municipality’s
building bylaws deals with Advertising Signs. Section 2 provides as
follows:
‘
Subject
to the provisions of this Chapter no person shall erect, alter,
display or maintain or cause or permit to be erected, altered,
displayed or maintained any advertisement or sign which is visible
from or which in the case of an advertisement can be heard in
any
public place except under and in accordance with the written
permission of the City Engineer.’
[43] Section 4(b) stipulates that
“[e]very advertisement or sign displayed or erected …
shall be deemed to be at the
pleasure of the Council…”
and section 7 stipulates that for every sign for which permission
‘…has expired
lapsed or been withdrawn…”
the City Engineer may serve not less than fourteen days’ notice
requiring the removal
of such sign “…or to do such other
things as may be set forth in such notice so as to bring the
advertisement or sign
into conformity or compliance…”.
[44] It is this latter provision that
Ms
Mills
referred me to in an attempt to argue that it was
still possible for the parties to comply with the lease and in
support of the
order sought in the counter-application compelling the
respondent to re-apply for permission.
[45] It is clear that, having accepted
that the permission for the signage lapsed on 31 August 2012 for the
one and presumably on
01 October 2012 for the other, their continued
display is in contravention of the bylaws and is illegal. The
provision for the
giving of notice by the City Engineer does not
alter that status.
[46] The provisions in the lease must
give way to the principle of legality and accordingly the
counter-application is bad.
[47] During argument Mr
Phillips
assured me that the discharge of the interim relief in no way
entitles the respondent to resort to self-help. He indicated from
the
bar that the applicant did not itself intend to remove the signage
unless it was authorised to do by order of this court or
by some
other legitimate process. I accept that assurance.
[48] So then the question remains:
what would
Lopes
J have done if all these facts had been
placed before him? I have no doubt that he would have declined to
grant the interim relief.
It is not difficult to say what would have
been done on the question of costs and in my view he would certainly
have, given
Dwarikapersadh’s
involvement, awarded the
respondent the costs of the opposed motion on 20 February 2012.
[49] In the result I make the
following order:
a. The Order made on 20 February 2012
under case number 1456/2012 is amended by the deletion of paragraphs
2 and 3 thereof and by
the inclusion therein of a new paragraph 2 in
the following terms:
“
2.
The costs of the opposed hearing on 20 February 2012 are to be paid
by the applicant. All other costs are reserved for the decision
of
the court finally deciding the application.”
b. The conditional counter-application
dated 26 October 2012 is dismissed with costs.
c. The applicant (Maribo Media (Pty)
Ltd) is directed to pay the costs of the interlocutory application.
____________
Vahed J
CASE INFORMATION
Date of Hearing: 13
December 2012
Date of Judgment: 8
January 2013
Applicant’s
Counsel: L Mills
Applicant’s
Attorneys: Maraj Attorneys
Suite 134, First Floor
Ridgeton Towers
6 Aurora Drive
Umhlanga
(Ref: Mr Maraj/M201)
Tel: 031 566 3850
Respondent’s
Counsel: D Phillips
Respondent’s
Attorneys: MGD Attorneys
Suite 2B, Umhlanga Centre
189 Ridge Road
Umhlanga Rocks
(Ref: Mr M
Dus/NB/C002(A))
Tel: 031 561 7858