About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2013
>>
[2013] ZAKZDHC 27
|
|
Ethekwini Municipality v Admed Investments CC and Others (2604/2012) [2013] ZAKZDHC 27 (8 May 2013)
23
IN THE KWAZULU NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO. 2604/2012
REPORTABLE
In the matter between:
ETHEKWINI MUNICIPALITY
.............................................................................
Applicant
and
ADMED INVESTMENTS CC
.................................................................
First
Respondent
MINESH MAHARAJ
..........................................................................
Second
Respondent
THE SOUTH AFRICAN
NATIONAL
ROAD AGENCY LIMITED
....................................................................
Third
Respondent
J U D G M E N T
NDLOVU J
Introduction
[1] The applicantseeks
interdictory relief against the first and second respondents in terms
of which they must be directed to remove
forthwith the advertising
sign and supporting structures at the property located in the
vicinity of the eastern boundary of the
N2 freeway between Sea Cow
Lake and Riverhorse Valley, Durban, at or near the directional
markers N2-25, 24.25 and N2-25, 24.05;
and other ancillary relief.
[2] It turned out during
the course of the pleadings filed by the first respondent that the
second respondent (who was cited by
virtue of being the sole member
of the first respondent close corporation) was in fact no longer
associated with the first respondent
and that the first respondent’s
business had since been taken over by one Ridwaan Mohammed. The
second respondent did not
participate in the proceedings.No relief
was sought against the third respondent (SANRAL), cited only on
account of the substantial
interest that it probably had in the
outcome of the application.
[3] The first respondent
opposed the application and filed a counter-application, which was in
turn opposed by both the applicant
and the third respondent.In the
counter-application the first respondent raised various
constitutional challenges against the applicant’s
specific
bylaws and certain national legislation, the detail of which is
discussed below.
[4] Hence, it was
incumbent on the first respondent to comply with rule 16A(1) of the
Uniform Rules; and this issue became the ultimate
focal point for
consideration by the Court. The matter was argued before me on 27
February, 15 and 19 April 2013.
The common cause
facts
[5] It is common cause
that the first respondent, without any permission or authorisation
from the applicant, constructed and displayed
a large canvass outdoor
advertising sign(“the advertising sign” or “the
billboard”) depicting the main
words: “
Phone? Tablet?
It’s Galaxy Note!”
erected on vacant land, as
specifically and specially described in paragraph (a) of the
applicant’s amended order prayed.
It is further common cause
that the first respondent did not apply for such authorisation or
permission from the applicant to erect
the advertising sign.
The applicant’s
founding averments
[6] In its founding
papers the applicant alleged that the first respondent, in doing what
it did, contravened chapter IV section
2 read with section 4(1) of
the applicant’s Building Bylaws referred to specifically in
that chapter as the advertising bylaws(“the
advertising
bylaws”)and section 50(1)(c) of the South African National
Roads Agency Ltd and National Roads Act, 1998 (Act
7 of 1998) (“the
SANRAL Act”) read with Regulation 40(15) to the SANRAL Act. The
advertising sign faced towards the
south-western directionin a manner
which indicated that the sign was intended for the attention of the
north-bound traffic, as
well as the busy developing commercial
district of Riverhorse Valley and the residential areas of Sea Cow
Lake, Newlands and Reservoir
Hills.
[7]
The
applicant further noted that metal and wooden posts were erected to
support the advertising sign which was mounted onto these
posts by a
system of cables, rope and hooks and that concrete foundations in
turn supported the posts. By failing to obtain the
applicant’s
authorisation in accordance with the relevant legislation aforesaid,
the first respondent had denied the applicant any
opportunity properly to ascertain and assess the safety and integrity
of the structures
supporting the billboard by scrutinising any plans
and design information as well as the desirability of the billboard
in the present
form or at all.
The first
respondent’s counter-application
[8] In its response to
the applicant’s claims,
the first
respondent filed a counter-
application,
dulyaccompanied by a consolidated or combined affidavit which served
both as founding affidavit to the counter-application
and answering
affidavit to the present application (or the main application). The
affidavit was deposed to by Ashveer Dwarikapersadh,
the first
respondent’sconsultant and the applicant’s former
employee. Whilst employed by the applicant, Dwarikapersadh
was
specifically assigned to the applicant’s signage department
where part of his job responsibilities was to evaluate signage
(including billboard) applications and make the necessary
recommendations for consideration of the applicant.
[9] The first respondent
submittedthat the applicant was only seeking the Court to enforce a
wholly unconstitutional regulatory
framework which was not in
accordance with section 156(1) of the Constitution,
read with Schedule 5 Part
B thereto.It was alleged on behalf of the first respondent that the
said flawed regulatory framework promoted
arbitrary, biased and
irrational decision-making on the part of the applicant. As a direct
consequence of the applicant’s
arbitrary, biased and irrational
conduct aforesaid, the first respondent had been denied its
constitutional rights to the freedom
of commercial speech; to the
freedom of trade and occupation; and to fair and just administrative
action, as protected by sections
16(1), 22 and 33, respectively, of
the Constitution
1
.
[10] On the basis of the
abovementioned averments the first respondent set out its defences to
the applicant’s claim in the
following terms:
10.1 The applicant had
failed to establish a regulatory infrastructure for third party
outdoor advertising as required by the Constitution;
10.2 The advertising
bylaws did not constitute regulation of third party outdoor
advertising as required by the Constitution;
10.3 The applicant did
not have the constitutional authority to enforce legislation outside
the sphere of its constitutional jurisdiction
without being
authorised by law to do so. In other words, the applicant did not
have the authority to police the SANRAL Act; and
10.4 In the alternative
to the above, Chapter IV of the applicant’s advertising bylaws
and section 50 of the SANRAL Act directly
infringed the first
respondent’s rights as protected in sections 16, 22and 33 of
the Constitution and fell to be set aside
on the basis of their
inconsistency with section 2 of the Constitution.
The applicant’s
combined answering/replying affidavit (in relation to the counter
application and the main application, respectively)
and application
for condonation of the late filing thereof
[11] The applicant filed
a combined affidavit embracing its answering affidavit to the first
respondent’s counter application
and replying affidavit in the
main application. In addition, the applicant filed an application for
condonation of its late filing
of the said combined affidavit. The
applicant raised further preliminary technical objections to the
first respondent’s counter
application, which included the
following matters: the non-joinder of the relevant national
government minister or the MEC, as
the case might be, in compliance
with Rule 10(A); the striking out of paragraphs 13-23, 25-31, 33-35,
38-42, 45-46 and 67-70 of
Dwarikapersadh’s affidavit on the
basis that they contained irrelevant matter; and the non-compliance
with rule 16A(1) read
with rule 18(4) in relation to the
constitutional challenge of the advertising bylaws and section 50 of
the SANRAL Act .
The various
interlocutory applications
[12] There were also a
number of interlocutory applications most of which raised important
preliminary issues that would otherwise
have to be determined by the
Court prior to attending to the merits of the main application.
However, at the commencement and during
the course of argument,
counsel from either side withdrew one or more of such interlocutory
applications. In particular,the following
challenges or objections
were withdrawn by the parties concerned, as indicated:
12.1 The applicant’s
application to strike out the specified paragraphs in
Dwarikapersadh’s affidavit on the ground
that they contained
irrelevant matter;
12.2 The applicant’s
objection to the authority of Mohammed and Dwarikapersadh to
represent the first and second respondents;
12.3 The first
respondent’s claim for relief in relation to the SANRAL Act,
which in turn necessitated the withdrawal of the
applicant’s
non-joinder claim (in terms of rule 10A) of the relevant national
minister or the MEC, as the case might be.
12.4 The first
respondent’s application to compel the applicant to produce for
inspection records of decisions taken in terms
of the
Intergovernmental Relations Framework Act 13 of 2005
and the minutes
of the meeting where such decisions were taken between the applicant
and SANRAL.
The issues
[13] Hence, the following
issues remained live for determination by the Court:
13.1 The applicant’s
application for condonation of its late filing of the combined
answering/replying affidavit.
13.2 The first
respondent’s non-compliance with
rule 16A(1)
and its
application for condonation of the late filing of the
rule 16A(1)
notice.
13.3 The applicant’s
complaint that the first respondent raised new issues in its
supplementary heads of argument which were
not raised in its
pleadings.
13.4 Whether the
applicant is entitled to the relief sought, in terms of the amended
order prayed, in the main application.
The application for
condonation of the applicant’s late filing of its combined
answering/replying affidavit
[14] The provision in
rule 27(3) of the Uniform Rules that “[t]he court may, on good
cause shown, condone any non-compliance
with these rules”
clearly indicates that the Court has a discretion in determining
whether or not to grant an application
for condonation of
non-compliance with the rules. In the well-renown caseof
Melanev
Santam Insurance Co Ltd
2
the Appellate Division
(per Holmes JA) stated the following:
3
“
In deciding
whether sufficient cause has been shown, the basic principle is
that the Court has a discretion, to be exercised
judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually
relevant are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily
these facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with
a true discretion, save of
course that if there are no prospects of success there would be no
point in granting condonation. Any
attempt to formulate a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed
is an objective
conspectus
of all the
facts. Thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's interest
in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects of success
in the
affidavits. I think that all the foregoing clearly emerge from
decisions of this Court, and therefore I need not add
to the
evergrowing burden of annotations by citing the cases.”
[15] In other words, a
condonation application is not just a formality or merely something
for the taking; so a full and detailed
account of the causes of the
delay and the effect thereof must be furnished.
4
The
more serious the consequences of non-compliance, the more difficult
it will be for the party seeking condonation to have its
application
granted.
5
It
is therefore important that a party seeking condonation must,
firstly, tender an explanation in order for the Court to understand
fully how the non-compliance occurred; and secondly, show that the
explanation so tendered is bona fide and not unfounded.
6
[16] At the end of the
day,
the Court has to be satisfied that a valid
and justifiable reason exists why non-compliance should be
condoned.
7
The
essence of the issue is fairness to both sides.
8
However,
when the failure to comply with the rules has been flagrant and
gross, condonation will not be granted, regardless of the
prospects
of success on the merits of the party seeking condonation.
9
[17] The first
respondent’s counter-application was served on the applicant on
31 May 2012. The answering affidavit was due
to be filed by the
applicant fifteen days later
10
,
that is, by 22 June 2012. The combined answering/replying affidavit
was delivered on 24 July 2012. In the circumstances the applicant’s
answering/replying affidavit was delivered 22 days late.
[18] Mr
van Niekerk,
for the applicant
,
submitted that the condonation
application should be granted. He referred to the applicant’s
answering/replying affidavit,
deposed to by the applicant’s
chief legal advisor, Alisande Grace Bradshaw. In the affidavit Ms
Bradshaw pointed out that
when the first respondent’s
counter-application was received, the applicant referred the papers
to SANRAL as it was obliged
to do so in terms of the
Intergovernmental Relations Framework Act.SANRAL had delivered a
notice of its intention to abide the
decision of the Court. After
all, the applicant was of the opinion that given the potentially
far-reaching consequences of the
relief sought in the
counter-application, it was necessary that SANRAL be informed thereof
to reassess its position, particularly
because parts of the challenge
in the counter-application related to the SANRAL Act, a piece of
legislation over which the applicant
did not have the requisite
authority to defend.
[19] Further, it was
imperative that a joint decision between the applicant and SANRAL on
the appropriate course of action be taken
in terms of the
Intergovernmental Relations Framework Act. SANRAL
briefed counsel who
contacted the applicant’s counsel on the 2 July 2012 and only
then did SANRAL confirm that it would participate
in the proceedings.
Then both counsel for the applicant and SANRAL discussed the
framework and time for opposing the counter-application
and it was
only at that point that the applicant was in a position to proceed
with the drafting of the answering/replying affidavit.
[20] Mr
Van
Niekerk
further submitted that the first and second respondents
had not suffered any prejudice by the late filing of the
answering/replying
affidavit because the advertising sign had
remained in place all the time.
[21] Mr
Krog,
for
the first respondent,noted that it was conceivable that the process
of consultation between both counsel for the applicant and
SANRAL
took some time and that this amounted to good governance. He also
pointed out that in terms of Bradshaw’s affidavit
a ‘joint
decision’ was taken between the applicant and SANRAL. However,
when the first respondent sought to compel
the applicant to provide
it with the documents related to this process, the applicant had
advised that there were no such documents
and that there was merely a
discussion between Mr
Van Niekerk
and counsel for SANRAL.
Therefore, if there were no such documents it meant that the
applicant did not follow the procedure required
in terms of the
Intergovernmental Relations Framework Act. On
this basis, counsel
submitted that the applicant’s condonation application should
fail.
[22] In my view, lateness
by only 22 days was, in the circumstances of this case, not a grave
matter. Having considered the reasons
proffered for this fairly short
period of lateness I am satisfied that the reasonsare valid and
sincere. It does appear that the
main cause of the late filing of the
applicant’s answering/replying affidavit was the consultation
between the applicant
and SANRAL. It is also clear that, had the
first respondent not initially decided to raise constitutional
challenges involving
the SANRAL Act, such consultation process would
never have been necessary in the first place, in which case there
would most probably
not have been this delay on the part of the
applicant in filing its answering/replying affidavit. As we all know,
the first respondent
subsequently decided to withdraw any court
challenge in relation to the SANRAL Act. In other words, it seems to
me, the first respondent
indirectly contributed to the delay and, for
this reason alone, it cannot plead prejudice. Besides, as the
applicant correctly
submitted, the billboard had remained in place
all the time and the first respondent had continued to generate
income out of the
impugned situation.
[23] In the
circumstances, I am inclined to find that the applicant has shown
good cause why condonation should be granted. Accordingly,
the
application for condonation of the late filing of the applicant’s
combined answering/replying affidavit succeeds.
The first
respondent’s non-compliance with rule 16A(1) and itsapplication
for condonation of the late filing of the rule 16A(1)
notice
[24] The pertinent
requirements referred to by me during my determination of the
applicant’s application for condonation of
its late filing of
the combined answering/replying affidavit, above, shall be applied
mutatis mutandis
in my consideration of the first respondent’s
condonation application for its late filing of the rule 16A(1)
notice. Therefore,
I do not need to repeat those requirements here.
[25] The first respondent
challenged, among other things, the constitutional validity of the
advertising bylaws in that they allegedly
promoted arbitrary, biased
and irrational decision making on the part of the applicant in
relation to billboard applications, thus
directly infringing upon the
first respondent’s rights enshrined in sections 16, 22 and 33
of the Constitution. Hence, it
was submitted that the advertising
bylaws should be set aside on the basis that they were inconsistent
with section 2 of the Constitution.That
being the challenge, it was
incumbent on the first respondent to comply with rule 16A(1) of the
Uniform Rules.
[26] Rule 16A(1) provides
as follows:
“
(1)(a) Any
person raising a constitutional issue in an application or action
shallgive notice thereof to the registrar at the time
of filing the
relevant affidavit or pleading.
(b) Such notice shallcontain a clear
and succinct description of the constitutional issue concerned.
(c) The registrar shall, upon receipt
of such notice, forthwith place it on a notice board designated for
that purpose.
(d)The notice shall be stamped by the
registrar to indicate the date upon which it was placed on the notice
board and shall remain
on the notice board for a period of 20 days.”
[27] In
Phillips
v South African Reserve Bank and Others,
11
the
Supreme Court Court of Appeal (per Farlam JA) stated
12
:
“
Rule
16(A)(1) has, accordingly, to be interpreted in the light of the
purpose for which it was enacted,
viz.
to bring
cases involving constitutional issues to the attention of persons who
may be affected by or have a legitimate interest
in such cases so
that they may take steps to protect their interests by seeking to be
admitted as
amici
curiae
with
a view to drawing the attention of the court to relevant matters of
fact and law to which attention would not otherwise be
drawn …”
[28] The word
‘
shall’
interspersed throughout
the entire rule 16A(1)doubtlessly demonstratesthe degree of
peremptoriness and importance of therule.
13
The
rule was clearly intended to serve a specific public service. Indeed,
it has been said that as constitutional matters often
have
consequences that go beyond the parties concerned,
14
such
matters should be brought to the attention of those who may
potentially wish to intervene in the proceedings.
15
[29] Rule 16A(1) leavesno
doubt or uncertainty as to the stage of proceedings when thenotice
must be filed with the registrar. This
must happen “at the time
of filing the relevant affidavit or pleading”unlessthe Court,
in the exercise ofits discretion,
as envisaged in terms of sub-rule
(9) of the rule,directs otherwise. In
Phillips,
the
SCA suggested a practical guideline in relation to rule 16A to be
followed by those engaged in constitutional litigation
16
:
“
Regard being
had, however, to the fact that it appears that problems (real or
imagined) relating to compliance with Rule 16A appear
to arise not
infrequently in constitutional cases, it is advisable that those
responsible for drafting (and settling) founding
affidavits in
constitutional cases (and, where appropriate opposing affidavits in
which constitutional issues are raised which
are not previously
raised in the proceedings), should make it a practise of inserting an
allegation that a notice (a copy of which
is annexed) has been
prepared in terms of the rule, and it is to be handed to the
registrar for the necessary action when the founding
(or opposing)
affidavit is filed. It is also advisable that the notice, when
removed from the notice board after the 20 day period
has elapsed and
put in the file, be included among the “necessary”
documents which go before the judge. The attorneys
acting for
departments or organs of state which are respondents in such cases
should also follow the practise of checking as soon
as the papers are
received that the rule has been complied with and, if it appears not
to have been, of bringing the omission to
the attention of the
applicant’s attorneys . . . State respondents should take
timeous steps to assist applicants to have
constitutional issues
raised with a minimum of obstruction.”
[30] In the present
instance the first respondent raised,in its counter-application, a
constitutional challenge against the advertising
bylaws. The
counter-applicationwas served on the applicant’s attorneys of
record on 31 May 2012 and filed with the registrar
on 4 June 2012. No
allegation, as suggested in
Phillips
,above,
was inserted in the counter-application to the effect that a notice
had been prepared in terms of rule 16A(1) and would
be handed to the
registrar for the necessary action. However, the applicant did not
seek to take advantage of the first respondent’s
omission at
that stage. Instead,
and
in line with
Phillips
,
the applicant,in its combined answering/replying affidavit, brought
this omission to the attention of the first respondent.
17
The
said answering/replying affidavit was served on the first
respondent’s attorneys of record on or about 17 July 2012.
[31] The first respondent
had the right to file its replying affidavit within ten days of its
receipt of the applicant’s combined
answering/replying
affidavit
18
.
However, the first respondent chose not to file a replying affidavit
at all. Again, the first respondent missed another opportunity
to
rectify the error and comply with rule 16A(1).
[32] In the applicant’s
heads of argument delivered on 18 February 2013 Mr
Van
Niekerk
raised
the point that the application to strike out was brought on grounds
including that “the first respondent has failed
to comply with
rule 16A”
19
and at the same time he
referred to paragraph 11 of the applicant’s answering/replying
affidavit in which the point had previously
been brought to the
attention of the first respondent.It is not in dispute that the first
respondent’s attorneys of record
and Mr
Krog
received
the applicant’s heads of argument, referred to presently,
reasonably well in time before the matter was argued for
the first
time on 27 February 2013. Yet, still nothing was done by the first
respondent to rectify the omission. This was the third
opportunity
missed.
[33] Furthermore. in his
argument on 27 February 2013 Mr
Van Niekerk
raised the rule
16A issue yet again, when he stated the following:
“
Now, there
is another secondary point to this, M’Lord. There was a further
failure and that was there was a failure to issue
a notice in terms
of rule 16A which relates to … the question of giving notice
of the raising of a constitutional point,
and that arises in all
matters, if there is a constitutional point that arises – if
any constitutional issue in an application
arises then the provisions
of rule 16A have to be followed and a notice has to be issued, it has
to be placed on the notice boards,
the Registrar must be given notice
of it, and allows amici curiae to enter the arena if it is necessary
– if they consider
that (it) is necessary to do so. This is a
peremptory provision and that I say because it says:
‘
Any person
raising a constitutional issue in an application or action shall give
notice thereof.’ Etcetera.
There is a provision, M’Lord, in
sub-rule (9) … which says the Court may dispense with any of
the requirements of the
rule if it is in the interests of justice to
do so. Now, M’Lord, regretfully, of course, there is no –
no case has
been made out for the dispensing of the provisions of the
rule, the point was raised, it’s been pooh-poohed effectively
by
the first respondent and I will submit, M’Lord, that on that
basis alone the application is defective and should be –
the
counter-application is defective and should be dismissed.”
[34] Later on the same
day, that is 27 February 2013, Mr
Krog
had his turn to address
the Court but, significantly, nothing was mentioned on why the first
respondent had not complied with rule
16A(1) and what it was that
first respondent sought to do in terms of rectifying the situation.
Due to the lateness of the hour
Mr
Krog
couldnot finish his
argument on 27 February 2013, hence the matter was adjourned
sine
die
. Subsequently, I granted indulgence to the parties to have
matter argued further during the next Court recess on 15 April 2013.
[35] In the meantime, on
5 April 2013, the first respondent delivered its supplementaryheads
of argument. In response thereto, the
applicant filed its further
heads of argument in which Mr
Van Niekerk
, among other things,
submitted that the first respondent’s supplementary heads of
argument were completely and materially
different in content and
substance from the first respondent’s answering affidavit and
founding affidavit to the counter-application.
[36] When the hearing
resumed on 15 April 2013 Mr
Krog
took the entire day with his
further argument to the extent that by the time he concluded it was
already too late in the afternoon
for Mr
Van Niekerk
to
reply.Remarkably, when Mr
Krog
indicated that he had no
further submissions to make it was specifically pointed out to him by
me that he had seemingly not addressed
the issue of why the first
respondent had not complied with rule 16A(1).To this, Mr Krog
unambiguously, and honestly so, conceded
that he had no explanation
to offer as to why the first respondent up to that time had not
complied with rule 16A(1). Thereupon,Iadjourned
the matter to 19
April 2013for the sole purpose of allowing Mr
Van Niekerk
the
opportunityto reply.
[37] Prior to the
adjournment aforesaid Mr
Van Niekerk
pointed out that on the
next Court date (that is 19 April 2013) he would limit his argument
only to the two preliminary issues;
firstly, that the first
respondent had persistently failed to comply with rule 16A(1) and,
secondly, that the first respondent’s
supplementary heads of
argument had introduced matters which were completely different from
those raised in its pleadings. On that
basis alone he would submit
that the first respondent’s counter-application should be
dismissed and that the main application
be granted in terms of the
amended order prayed. He reserved his right to address me further, on
the merits, should I not agree
with him on either of the two
preliminary points.
[38] Surprisingly, on 18
April 2013, being the eve of the final date for the hearing of
argument, the first respondent filed an
interlocutory application
(accompanied by a supporting affidavit) in terms of which notice was
given that on 19 April 2013an application
would be made on behalf of
the first respondent for an order in the following terms:
“
1. That the
late filing of the Rule 16A notice, attached hereto as annexure A1,
be condoned;
2. That the matter be postponed for a
period of 20 days to allow any interesting (sic) party to be admitted
as amicus curiae in
the matter;
3. That the non-compliance of the
provisions of the Court Rules for the hearing and set down of an
interlocutory application be
condoned by this Honourable Court.”
[39] Indeed, the matter
resumed on 19 April 2013 when Mr
Krog
moved for the granting
of the latest interlocutory application, which Mr
Van Niekerk
vehemently opposed. In his submissions Mr
Krog
referred me to
the averments set out in the supporting affidavit deposed to by
Dwarikapersadh. In the supporting affidavit the first
respondent
sought to explain why the rule 16A(1) notice was not filed and, in
the main, the following was averred:
“
5. In the
entire process it was overlooked that there was no similar notice in
termsof Rule 16A filed in the current case. It was
only when the
applicant filed its heads of argument that we were reminded that no
notice was filed in terms of Rule 16A.
6. At the time we were advised that
due to the fact that there are many points in
limine
raised by
the applicant as well as by the first respondent for the trial in
February that a filing of the Rule 16A notice would
be interpreted as
being opportunistic and aim to derail the proceedings as it would
necessitate a postponement.
7. We were also advised that the issue
might well be overtaken by any of the other points in
limine
and
it was decided to deal with the points
in limine
in front of
the Court and if the Rule 16A notice was the last remaining issue we
would seek a postponement at that time.
8. After the hearing in February the
impression was that the applicant is not continuing with the said
issue and that the matter
will proceed on the merits on 15 April
2013.
9. This explanation given but does not
distract (sic) from the fact that the first respondent should have
filed the said notice
when it raised the constitutional issue in June
2012. The first respondent is therefore solely to blame for the
non-compliance
of the said rule.
10. It is however a rule that grants
the public at large a right and therefore the compliance with the
rule is paramount above the
interest of the litigating parties at
this time in place.
11. Any inconvenience suffered by the
applicant may be cured with the appropriate costs order that is
brought about by this application
for condonation and late filing and
the inevitable postponement of the matter to allow for the time
period to lapse.
12. If no
amicus curiae
is
forthcoming in the period then there would be minimal wasted costs in
this matter.
13. It is therefore appropriate that
the rights of the public at large to participate in constitutional
matters in which they may
have an interest supersedes any possible
interest of the two litigating parties in front of the Court and that
the application
for the condonation for the late filing be granted.”
[40] Mr
Van Niekerk
submitted that the first respondent’s condonation application
was too late and also fatally defective. He contended that
rule
16A(1) clearly stipulated that the notice must be filed “at the
time of filing the relevant affidavit or pleading”and
that the
presentcase had gone so far as to be about 90per cent complete.
[41] On the merits of the
condonation application, Mr
Van Niekerk
argued that it was
trite that a condonation application should set out complete reasons
of why the rule was not complied with and
why condonation should be
granted. By not doing this, the application was defective and should
not be entertained. In the present
instance there had been a complete
failure on the part of the first respondent to provide an explanation
for the delay. The averments
in the affidavit were also either wrong
or dishonest. For instance, in paragraph 5 of the affidavit, deponent
alleged that the
issue of the rule 16A(1) notice was overlooked and
that the first respondent was reminded about it when applicant filed
its heads
of argument. This was not true because the issue had been
raised in the applicant’s replying/answering affidavit.
Further,
in paragraph 8, the deponent stated that the impression was
that the applicant would not continue with the issue. This was
another
untruth, as the transcript of February proceedings (at page
7) showed that the issue was once again raised.
Mr Van Niekerk
then submitted that the application should be dismissed with costs on
an attorney and client scale given that the application was
brought
this late, with this content and mistruths.
[42] In his reply in the
main application Mr
Van Niekerk
dealt only with the two
preliminary issues, namely, the first respondent’s
non-compliance with rule 16A(1) and the introduction
of new
constitutional matters in the first respondent’s heads of
argument.
[43] As regards rule
16A(1),
Mr Van Niekerk
pointed out that the words “at
the time of filing”clearly indicated that when the first
pleading was filed notice must
be given simultaneously. The fact that
the rule referred to theword ‘
shall’
meant that
the provisions thereof were peremptory. On the second issue he
submitted that the applicant’s heads of argument
set out and
contrasted the first respondent’s case as initially pleaded and
then later as developed in its heads of argument.
He pointed out that
the test in that regard was formulated in
Prince v President, Cape
Law Society
20
which clearly set out what must be done and what must not be done.
[44] The first respondent
conceded, in its supporting affidavit, that the rule 16A(1) notice
ought to have been filed by it “when
it raised the
constitutional issue in June 2012”
21
.
However,for
no apparent valid and just cause the first respondent elected not to
comply with the rule. The purported explanation
tendered in support
of the condonation application is, in my view, generally either
factually incorrect or not bona fide. It was
factually untrue that
the first respondent was only reminded about the notice when the
applicant filed its heads of argument. As
clearly indicated earlier,
the issue of non-compliance with the rule was initially brought to
the first respondent’s attention
in the applicant’s
answering/replying affidavit,
22
which was served on the
first respondent on or about 17 July 2012. This was long before the
applicant filed its heads of argument
23
on 18 February 2013 and
which would have been served on the first respondent on or about the
same date.
[45] It is not clear on
what basis the first respondent could have been “advised that
due to the fact that there are many
points
in limine
raised
by the applicant as well as by the first respondent for the trial in
February that a filing of the rule 16A notice would
be interpreted as
being opportunistic and aim to derail the proceedings as it would
necessitate a postponement” because the
issue of non-compliance
with rule 16Ahad always remained live since the time it was first
raised by the applicant in its answering/replying
affidavit. There
was never any indication of the applicant abandoning it at any stage.
It seems to me that the apparent ‘back
door’ method which
the first respondent now seeks to employ in order to avoid
potentially adverse consequences of its obvious
deliberate failure to
comply with rule 16A(1) is what could justifiably, in the first
respondent’s own words,“be interpreted
as being
opportunistic and aim(ing) to derail the proceedings.”
[46] Indeed, it is also
unclear on what basis the first respondent alleged that “[a]fter
the hearing in February the impression
was that the applicant is not
continuing with the said issue and that the matter will proceed on
the merits on 15 April 2013”.As
to who and how that impression
was created in the mind of the first respondent or its legal
representatives is difficult to figure
out. As illustrated earlier,
on 27 February 2013 Mr
Van
Niekerk
made
it clear that this was a live issue and he went on to address the
Court at length on the issue
24
.
[47]
The
first respondent is correct when it concedes that it is “solely
to blame for the non-compliance of the rule”and,
equally, it
should blame no-one else but solely itself about the adverse
consequences of its deliberate and flagrant failure to
comply with
the said Rule. If the first respondent was aware that compliance with
rule 16A(1) was “paramount above the interest
of the litigating
parties”, which the first respondent clearly was, then the
first respondent ought to have conducted itself
in accordance with
that awareness by complying with the Rule at the appropriate time.
[48] Indeed, I am
satisfied that the explanation proffered by the first respondent for
its failure to comply with rule 16A(1) is
neither valid nor bona
fide. In my view, the first respondent has dismally failed to furnish
a valid, bona fide and justifiable
reason why non-compliance should
be condoned. In fact, it would not be completely incorrect to say
that there was virtually no
explanation at all for the
non-compliance, an observation borne out by Mr
Krog’s
initial, and apparently sincere, response that he could not give an
explanation why the Rule was not complied with.
[49] I am also satisfied,
on the facts of this case, that the first respondent, for reasons
better known to itself, deliberately,
intentionally and defiantly
decided not to comply with rule 16A(1). The subsequent partly
mutually contradictory and partly factually
inaccurate so-called
explanation contained in Dwarikapersadh’s supporting affidavit
is, in my view, only an afterthought
on the part of the first
respondent; and therefore its rejection is totally justifiable.
[50] As pointed out
earlier,when a failure to comply with the rules has been flagrant and
gross, which it certainly was in this
case, condonationshould not be
granted, regardless of the prospects of success on the merits of the
party seeking condonation.
25
There is thus no need to determine the question of the first
respondent’s prospects of success on the merits.
[51] Clearly, granting
condonation which would necessitate a further postponement would not
be without prejudice to the applicant
which is, after all, entitled
to finality in the matter. I bear in mind that the applicant lodged
this application on 8 March 2012
– already over a year ago. As
stated earlier, the order the applicant seeks is one, amongst others,
directing the first and
second respondents “to remove
forthwith
the advertising sign …”.(my emphasis). It is clear,
therefore, from the nature of the relief sought, that the applicant
had anticipated a degree of urgency in the adjudication of the
dispute. The Court is enjoined to show fairness to both parties.
In
the circumstances, I am not satisfied that the first respondent has
made out a case for condonation that it seeks. The application
for
condonationmust, therefore, fail.
[52] The next question is
what effect or impact my refusal to grant condonation should have on
the first respondent’s case.I
reiterate, by the nature of its
peremptoriness, alluded to earlier, rule 16A is certainly a very
important provision which parties
contemplating to raise any
constitutional challenge ought to be warned not to pay lip service
to. It seems to methat in an appropriate
casewhere a party has
deliberately, grosslyor flagrantly flouted the rule,the consequence
may well be the dismissal of the application/action
or the defence
concerned, as the case may be. Such should be the consequence here.
The facts of this case are completely distinguished
from those in
Phillips
, above, where the notice was delivered to the
registrar by the appellant but the registrar omitted to post it on
the notice board
in terms of the rule, hence in that case the matter
was postponed to enable compliance with the rule. In this case the
first respondent
cannot reasonably and justifiably expect the same
indulgence.
[53] Given my finding
above, it becomes unnecessary to deal with the further preliminary
issue raised on behalf of the applicant,
namely, the allegation that
the first respondent’s supplementary heads of argument
introduced material issues which were
completely different from those
raised in the first respondent’s pleadings. Equally so, it also
becomes unnecessary to enter
the merits of the dispute which, after
all, Mr
Van Niekerk
elected, prudently so, not to address me
on.
Conclusion
[54] Accordingly, the
first respondent’s counter application falls to be dismissed.
This then leaves me with the applicant’s
main application, as
deemed unchallenged. I am satisfied of the legality, legitimacy and
soundness of the application. It, therefore,
ought to succeed.
The costs
[55] Mr
Van
Niekerk
submitted
that in dismissing the counter application the Court should mark its
displeasure by awarding costs against the first respondent
on the
scale as between attorney and client.The SCA intimated in
Phillips
,
thatit is now settled
practice by the Courts to recognise “. . . the possible
‘chilling effect’ that an award
of costs may have on
litigants wishing to vindicate their constitutional rights, where the
litigation in question is not frivolous
or vexatious.”
26
Hence,“.
. .the general principle applicable in constitutional litigation (is)
that an unsuccessful litigant in proceedings
against the State ought
not to be ordered to pay costs.”
27
The
learned Judge of Appeal added that “. . . this principledoes
not only apply to orders on the merits in constitutional
cases but
alsoto what may be described as ancillary points.”
28
However,
a distinction should be made in cases, such as the present, where the
constitutional litigation is commercial in nature
and the losing
party is, after all, making money out of the commercial business
concerned. In the recent SCA decision of
Independent
Outdoor Media (Pty) Ltd and Others v City of Cape Town
29
the
Court (per Leach JA) stated as follows
30
:
“
It was
argued by the appellants that they were seeking to enforce a
constitutional right and that, consequently, even if unsuccessful,
they should not pay the City’s costs. However, as counsel for
the appellants readily conceded, the fact of the matter is
that this
litigation is commercial in naturein that the appellants would not
have sued had they notbeen making money out of their
advertising
(indeed the first appellant’s business is to place on outdoor
advertisements). The appellants’ private
commercial interests
were paramount and, that being so, I see no reason why they should
not pay the City’s costs.”
[56] Indeed, whilst the
first respondent’s apparent deliberate and somewhat arrogant
conduct in its dismal and unashamed handling
of the rule 16Aissue
would ordinarily tend to persuade the Court to seriously consider
awarding costs against the first respondent
on a punitive basis, I am
persuaded to lean in favour of leniency in this regard and to award
costs on party and party scale. The
applicant shall, therefore,be
entitled to costs, which shall include the costs of employment of two
counsel for the two days when
junior counsel attended, namely, 27
February and 15 April 2013; but not for when she (junior counsel) did
not attend, that is,
on 19 April 2013.
[57] When Mr
Krog
withdrew any allegation made, and relief sought, against SANRAL or in
relation to the SANRAL Act, any further participation by
counsel for
SANRAL, Mr
Schumann
, became academic and unnecessary. However,
Mr
Schumann
submitted that SANRAL was nevertheless entitled to
an award of costs against the first respondent for its
participationon 27 February
2013. Indeed, when the hearing resumed on
15 April 2013 Mr
Schumann
was no longer present and Mr Krog
placed on record that that the first respondent was tendering
SANRAL’s (third respondent’s)
wasted costs for 27
February 2013.
The order
[58] In the result,I
grant the order as follows:
The first and second
respondents are directed to remove forthwith the advertising sign
and supporting structures erected at
the property located in the
vicinity of the eastern boundary of the N2 freeway between Sea Cow
Lake and Riverhorse Valley,
at or near the directional markers
bearing the details N2-25, 24.25 and N2-25, 24.5 as depicted in
annexures “C1”-
“C2” and “D1”-“D5”
to the founding affidavit of Alisande Grace Bradshaw;
In the event of the
first and second respondents failing to comply with paragraph 1
above within seven (7) days of the grant
of this order, the Sheriff
of this Court is authorised and directed to take all such steps as
may be necessary, including utilising
the services of the applicant
or its agents, to give effect to the order;
The first and second
respondents are interdicted and restrained forthwith from erecting
or causing or permitting the erection
of any advertising signs
within the applicant’s area of jurisdiction without the
applicant’s written permission
first having been obtained;
The late filing of the
applicant’s answering/replying affidavit be and is condoned;
The first and second
respondents, alternatively the first respondent and Ridwaan
Mohammed, are directed to pay the costs of
this application jointly
and severally, the one paying the other to be absolved, such costs
to include those incurred consequent
upon the execution of the
order in paragraph 2 above and the costs of two counsel for the
period 27 February 2013 and 15 April
2013 and only for senior
counsel on 19 April 2013.
The first respondent,
by agreement, is directed to pay the costs of the third respondent
for 27 February 2013.
The first respondent’s
application for condonation of its late filing of the Rule 16A
notice is refused with costs.
The first respondent’s
counter application is refused with costs.
____________________________
Appearances
:
For the applicant : Mr G
Van Niekerk SC, with him Ms S Mahabeer
Instructed by : Naidoo
Maharaj, Morningside, Durban
For the first respondent
: Mr W Krog
Instructed by : Maraj
Attorneys, Umhlanga, Durban
For the second
respondent: No appearance
For the third respondent
: Mr P Schumann
Instructed by : State
Attorney, Durban
Dates of hearing : 27
February, 15 and 19 April 2013
Date of judgment : 8 May
2013
1
The
Constitution of the Republic of South Africa Act, 1996 (Act No 108
of 1996)
2
1962
(4) SA 531 (A).
3
Melane
at
532C-F. See also
Chopra v Sparks Cinemas (Pty) Ltd and Another
1973 (2) SA 353
(D) at 357A-B;
Gumede v Road Accident Fund
2007 (6) SA 304
(C)
at 307D-E.
4
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) para 6.
5
Du
Plooy v Anwes Motors (Edms) Bpk
1983 (4) SA 212
(O) at 217C.
6
DuPlooy
,
at 218B.
7
General
Accident Insurance Co South Africa Ltd v Zampelli
1988 (4) SA 407
(C) at 410I-J.
8
United
Plant Hire (Pty) Ltd v Hills and Others
1976 (1) SA 717
(A) at
720E-F.
9
Darries
v Sheriff, Magistrates’ Court, Wynberg and Another
1998
(3) SA 34
(SCA) at 41D.
10
In
terms of rule 6(5)(d)(ii) of the Uniform Rules.
11
2012
(7) BCLR 732
(SCA).
12
Phillips
para
31.
13
See
African National Congress v Harmseand Another: In Re Harmse v
Vawda
2011(5) SA 460 (GSJ) para 113.
14
Rates
Action Group v City of Cape Town
2004 (5) SA 545
(C) para 21.
15
Rates
Action Group
para 22.
16
Phillips
para
55.
17
See
para 11 of the applicant’s answering/replying affidavit.
18
In
terms of rule 6(5)(e) of the Uniform Rules.
19
See
para 8(a) of the applicant’s heads of argument dated 14
February 2013.
20
Prince
v President, Cape Law Society,
and Others
[2000] ZACC 28
;
2001 (2) SA 388
(CC)para 22.
21
See
para 9 of the first respondent’s affidavit in support of its
application for condonation of late filing of the Rule
16A notice..
22
See
para 11 of the applicant’s answering/replying affidavit, at
p117 of the indexed papers.
23
The
applicant’s heads of argument dated 14 February 2013.
24
See
Transcript of court proceedings for27 February 2013 at p 7.
25
Darries
v Sheriff, Magistrates’ Court, Wynberg and Another
1998
(3) SA 34
(SCA) at 41D.
26
Phillips
para
57.
27
Phillips
para
56.
28
Phillips
para 58.
29
[2013]
JOL 30245
SCA
30
Independent
Outdoor Media
, para 37. See also
Rootman v President of RSA
[2006] JOL 17547
(SCA), para 14 cited with approval in
Independent
Outdoor Media
.