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[2009] ZAGPPHC 384
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City Of Tshwane Metropolitan Municipality v Freedom Front PLus and Others (57648/2008) [2009] ZAGPPHC 384 (13 October 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA)
DATE:
13 OCTOBER 2009
CASE
NO: 57648/2009
THE CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
APPLICANT
AND
FREEDOM
FRONT
PLUS FIRST
RESPONDENT
AFRIFORUM
(SECTION
21
COMPANY) SECOND
RESPONDENT
FJC
BEYERS THIRD
RESPONDENT
JUDGMENT
PHATUDI
(J)
[1]
The Applicant instituted this application on a semi-urgent basis
seeking relief as set out in the Notice of Motion. The key
prayer
sought is '[D]eclaring that the judgment, and more particularly the
interim order made by Mr Justice Prinsloo in an interim
application
brought under case number 38183\2007, do not upon a proper
interpretation thereof, prohibit the signage posting concerning
the
2010 FIFA World Cup Tournament that the City of Tshwane is obliged to
make at various gateways, in and around and in the City
of Tshwane in
order to comply with its obligations in terms of the FIFA 2010 Host
City Agreement between the City of Tshwane and
FIFA.
[2]
At the commencement of the hearing, Mr Pelser, Counsel for the
Respondents, submitted that the Respondents intend to raise two
points
in limine
,
to wit: (i) Urgency and (ii) Non - joiner of FIFA and South African
Local Organising Committee as well as the Minister of Arts
and
Culture. He submitted that I must make a ruling if the Respondent
should first deal with the said
points
in limine
or not.
[3]
Mr Maleka, counsel for the Applicant, duly assisted by Mr Mothle,
submitted that counsel for the Respondent cannot tender evidence
but
must argue his case on what is contained in the affidavit. He
referred me to
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS v PHILLIPS AND OTHERS
2002 (4) SA 60
(W)
where Heher J followed the principle set out in
PROKUREURSORDE
VAN TRANSVAAL v KLEINHANS
1995 (1) SA 839
(T)
that a party must state his case on affidavit and if not done, cannot
be raised.
[4]
I
then
dismissed the application to first deal with the said points in
limine,
but to submit or mention them in his opposing argument.
[5]
Mr Maleka submitted that the kernel of this application is embodied
in the relief sought in prayer 2.1 of the Notice of Motion
or. in the
alternative, prayer 2.2.
[6]
He submitted that this court is to determine if the Interim Court
Order by my brother Prinsloo J, as it appear on page 58, upon
a
proper interpretation thereof, does prohibit the signage posting
concerning the 2010 FIFA World Cup Tournament that the City
of
Tshwane is obliged to make at various key gateway points.
[7]
He, upon my enquiry of these gateway points, referred me to 9 (nine)
“key gateways points”
set out at paragraph 9.3.1 –
9.3.9 of the founding affidavit.
[8]
My brother's Order dated 28 August 2007 state, as read on record by
Mr Maleka, that:
“
2.
Hangende die beregting ban die B-gedeelte van die Kennisgewing van
Mosie, word die 1ste, 4de en 5de respondente verbied om op
roete-en
rigtingswysers onder sodaninge respondente se beheer die naam Pretona
met die naam Tshwane te vervang......”
[9]
Mr Maleka submitted that the word “vervang ’ is
translated to mean, among others, “substitute” or
“replace”.
He further submitted that the promotional
advert intended to be erected at the 9(nine)
“key
gateway points”
is neither a
direction signage nor the replacement or substitute of any signage
bearing the name Pretoria on but a Welcome signage.
He referred me to
the examples of the said promotional advert annexed to founding
affidavit marked RM6 at page 99-101 of the paginated
bundle.
[10]
On enquiry as to what words will be on
the promotional advert on those
“key
gateways points",
he (Mr
Maleka) submitted that the wording will be considered by the
committee in line with what it has been agreed on in terms
of “Host
City Agreement” concluded by and between Federation
International De Football Association (FIFA), 2010 FIFA
World Cup
Organising Committee South Africa (LOC) and City of Tshwane
Metropolitan Municipality (Host City). He further referred
me to a
letter marked RM7 at page 182 which set out the names to be used as
per agreement both on International and Domestic references.
He said
that those names will be considered by the committee.
[11]
Addressing the semi-urgency, Mr Maleka
submitted that the implementation process of the host city's
obligations in terms of the
Fifa agreement (as set out in annexure
RM10 at page 186) is scheduled to commence by August 2009 and
completed by no later than
31 March 2010. He submitted that should
the Applicant await the adjudication of the main application set down
for hearing on 25-26
March 2010, the Host City (applicant) will not
be ready by June 2010. The implementation process needs a period of
no less than
8 months to complete.
[12]
Mr Maleka submitted that it will be in the public interest,
specifically the people of this town and the country not to loose
the
hosting of the memorial event, 2010 World Cup. He added that even the
Respondents concede thereto as per the wording at paragraph
11 and 12
of the opposing affidavit that states:
'11
Die Respondente wil dit onomwonde stel
dat die Respondente ten gunste is van 'n suksesvolle
Wereldbekertoemooi gedurende 2010 en,
tewens. daama uitsien
12
Die Respondente verlang dat die
Wetreldbekertoernooi in 2010 'n sukses is'
[13]
In addressing the court on the approach to adopt in interpreting the
order of Prinsloo J, Mr Maleka submitted that if the order
is clear
and unambiguous, then such order be followed and if not clear, then
the reasons stated in the judgment must be visited
in determining its
meaning or intended to mean.
[14]
In rebuttal thereto Mr Pelser, counsel
for the Respondents submitted that the Respondent opposed this
application in fear that the
word Pretoria would be substituted with
that of Tshwane. The Respondent's attitude is to preserve the
heritage in preserving the
name Pretoria He said that the Applicant
created the impression in the mind of the Respondent that the
Applicant intended to substitute
the name Pretoria with that of
Tshwane.
[15]
He further submitted that had the
Applicant stated clearly why it had to be in court today, the
Respondent would not have opposed.
He submitted further that the
Applicant is welcome to proceed as contracted with FIFA subject to
the conditions that the name Pretoria
is as well promoted as in the
FIFA's Host City for the 2010 website. He referred me to an extract
of the website annexed at page
146 marked CK4.
[16]
Mr Pelser further submitted that the
Respondent is not opposing the erection of the promotional adverts at
the
“key gateway points"
but the substitution of the name Pretoria with that of Tshwane on the
en-roete signage.
[17]
In my evaluation of the evidence
tendered and submission made by both counsel for the Applicant and
the Respondent, it is clear
and common cause that the order of
Prinsloo J, prohibits (verbied) the substitution of the name Pretoria
with that of Tshwane on
all en route and direction signage pending
finalisation of Part B of the main application in case 38183\2007.
[18]
In my view, the erection of promotional
advert at the identified 9(nine) key gateway points is not prohibited
by the said interim
order.
[19]
The wording on the promotional advert to
be erected is the issue that is not before this court for
consideration. I will thus not
deal with it.
[20]
The Respondent conceded that the interim
order prohibits only the removal or substitution of the word Pretoria
with that of Tshwane
on the en route signage.
[21]
The 2010 FIFA World Cup Tournament is
indeed an event not for the town only but for the country The event
will benefit all South
African alike. It is even better said in
Sepedi that
"Moeng tla ka
geso gore reje ka wena".
[22]
It is on that basis I find that the
Applicant's application stands to be granted.
[23]
It is trite law that costs follow the
event. The Respondent stands to be mulcted with costs.
[24]
I as a result thereof, make the
following order;
[24.1]
The interim order made by Mr Justice
Prinsloo in an interim application brought under case number
38183/2007, does not prohibit
the signage posting concerning the 2010
FIFA World Cup Tournament that the City of Tshwane is obliged to make
at various gateways,
in and around and in the City of Tshwane, in
order to comply with its obligation in terms of the FIFA 2010 Host
City Agreement
between the City of Tshwane and FIFA.
[24.2]
The Respondent is ordered to pay the
Applicants costs on party and party scale including the costs of 2
(two) counsel.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on
:6\10\2009
For
the Applicant
: Adv MALEKA
Instructed
bv
: Messrs MATABANE INCORPORATED
For
the Respondent
Adv PELSER
Instructed
bv
: Messrs WILLIE SPIES
Date
of Judgment
13 OCTOBER 2009