THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1054/2022

In the matter between:

CITY OF EKURHULENI METROPOLITAN
MUNICIPALITY APPELLANT

and

TSHEPO GUGU TRADING CC FIRST RESPONDENT

SOWETO STEEL STRUCTURAL
ENGINEERING (PTY) LTD SECOND RESPONDENT


Neutral citation: City of Ekurhuleni Metropolitan Municipality v Tshepo Gugu
Trading CC and Another (1054/2022) [2024] ZASCA 81
(28 May 2024)
Coram: MOLEMELA P , SCHIPPERS AND HUGHES JJA AND
SEEGOBIN AND MBHELE AJJA
Heard: 20 February 2024
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down of the judgment is
deemed to be 11h00 on 28 May 2024.

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Summary: Property law – spoliation (mandament van spolie) requirements
– municipality dismantling and removing respondent’s billboard on municipal land
– erected contrary to by -law – application to regularise billboard – settlement
agreement – operative for two years – agreement lapsing – whether status quo ante
should be restored.


ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Molahlehi,
Adams and Mahalelo JJ, sitting as a court of first instance):
1 The application for special leave to appeal succeeds.
2 The appeal is upheld with costs , such costs to include the costs of the
employment of two counsel.
3 The order of the full court is set aside and replaced with the following:
‘The appeal is dismissed with costs.’

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JUDGMENT


Seegobin and Mbhele AJJA (Molemela P, Schippers and Hughes JJA
concurring):
Introduction
[1] This is an application for special leave to appeal by the City of Ekurhuleni
Metropolitan Municipality (the municipality) in terms of s 16(1) (b) of the Superior
Courts Act 10 of 2013 (the Act) , against the judgment and o rder of the Gauteng
Division of the High Court, Johannesburg (Molahlehi, Adams and Mahalelo JJ) (the
full court) delivered on 13 September 2022. On 2 March 2023 this Court referred
the application for oral argument in terms of s 17(2)(d)1 of the Act.

Relevant background
[2] The municipality is the owner of the immovable property situated at Portion
988, Elandsfontein 90-IR described as ‘Gillooly’s Farm’ (the site). The respondent,
Tshepo Gugu Trading CC (the respondent), owns a large billboard. In March 2016,
the respondent installed the billboard on the site.

[3] On 5 August 2016 the municipality launched an application in the Gauteng
Division of the High Court, Johannesburg (the high court) for an order directing the
respondent to remove the billboard and to restore the site to its original state. The
basis for that application was that the respondent had erected the billboard in
contravention of the municipality’s Billboards and Display of Advertisements By-

1 Section 17(2)(d) reads:
‘The judges considering an application referred to in paragraph (b) may dispose of the application without the hearing
of oral argument, but may, if they are of the opinion that the circumstances so require, order that it be argued before
them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse the ap plication or
refer it to the court for consideration.’

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laws of 13 March 2017 (the By-laws) and the Local Government Municipal Systems
Act 32 of 2000 (the Systems Act).

[4] The relief sought by the municipality was the following:
‘1. The respondent is ordered to remove the billboard, and to restore Portion 988 of
Elandsfontein 90-IR to its state prior to the respondent’s construction of the billboard;
2. Should the respondent fail to remove the billboard or part thereof within 60 days of the
Court’s order, the applicant is authorised to take all necessary steps to remove the billboard
including the authorisation of the sheriff or a suitable alternative contr actor to remove the
billboard, in which event those costs are to be paid by the respondent.
3. It is declared that the applicant’s decision of 23 June 2015 to approve the respondent’s
application to construct the billboard (“the decision”) has lapsed.
4. In the alternative to prayer 3:
4.1 The time period of 180 days in terms of section 7 of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”) in which to bring a review of the decision is extended in terms of
section 9 of PAJA to the date on which this application was served on the respondent.
4.2 The decision is reviewed and set aside.
5. The respondent shall pay the costs of this application in the event of its opposition.’

[5] The respondent opposed the application and filed a counter-application. Those
applications were settled in terms of a written settlement agreement between the
parties that was made an order of court by Victor J (the Victor J order). The relevant
parts of the order read as follows:
‘3. THE REGULARISATION APPLICATION
3.1 The respondent will submit an application to the applicant for approval of the Billboard at
its current size and/or an application for the approval of an electrical billboard at the same location
as the current Billboard (“the regularisation application”).
3.2 The respondent will submit the regularisation application within 30 calendar days of this
agreement.

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3.3 The regularisation application must be submitted by the respondent and will be decided by
the [applicant] in accordance with the [applicant’s] Billboards and the Display of Advertisements
By-laws dated 30 March 2017 and the Municipality Systems Act 32 of 2000.
3.4 The regularisation application must be decided within 30 days of its receipt by the
[municipality].
3.5 Nothing in this agreement fetters the discretion of the applicant and/or its delegated
officials and/or committees in respect of the determination of the regularisation application.
3.6 In the event that the regularisation application is unsuccessful, the applicant will:
3.6.1 Either remove the Billboard within 60 calendar days or such further period as agreed to
between the parties, the costs of which removal are to be paid for by the respondent;
3.6.2 Or reduce the Billboard’s size to 81m² within 60 calendar days or such further period as
agreed to between the parties, in which event the Billboard may remain erected until the fifth
anniversary of the decision pursuant to which it is erect;
3.7 In the event that the applicant fails to remove the Billboard or reduce its size to 81m² within
60 calendar days or such further period as agreed to between the parties, the [municipality] will be
entitled to remove the Billboard or cause the Billboard to be removed by a contractor, the
reasonable costs of which will be carried paid by the respondent.
3.8 The respondent will have the right to seek to review and/or appeal any decision made in
respect of the regularisation application.
4. In the event that th e respondent exercises its right to review and/or appeal any decision
made in respect of the regularisation application its obligation to remove or reduce the size of the
Billboard in terms of paragraph 3.6 remains binding unless:
4.1 The applicant agrees to suspend the operation of paragraph 3.6; or
4.2 A court grants an interdict suspending the operation of paragraph 3.6.
5. RENTAL IN RESPECT OF THE BILLBOARD

5. RENTAL IN RESPECT OF THE BILLBOARD
5.1 The parties will endeavour to conclude a lease agreement in respect of the Billboard and/or
its successor in accordance with the applicant’s ordinary terms for leases of such a nature and in
compliance with the applicant’s tariffs schedule, a copy of which is attached hereto as annexure
A.
5.2 Pending the conclusion of a lease agreement, the following arrangement will apply:
5.2.1 The respondent will pay rental in respect of the Billboard from 11 September 2018 to the
date that the Billboard is removed.

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5.2.2 The rental payable will be fixed in accordance with the applicant’s Real Estate Tariffs,
being 20% of the gross income received by the media owner (namely the respondent) from the
advertiser.
5.2.3 On the first day of each month commencing 1 October 2018, the respondent will provide
to the applicant a statement and debatement of 20% of the gross income earned by the respondent
from advertisers in the preceding month.
6. ARREAR RENTAL IN RESPECT OF THE BILLBOARD
6.1 The respondent will pay arrear rental in respect of the Billboard from the date that the
Billboard was erected and/or began displaying advertisements 11 September 2018.
6.2 The arrear rental is fixed in accordance with the applicant’s Real Estate Tariffs, being 20%
of the gross income received by the media owner (namely the respondent) from the advertiser.
6.3 By 9 October 2018, the re spondent is to provide to the applicant a statement and
debatement of 20% of the gross income received from advertisers in respect of the Billboard from
the Billboard’s erection up to and including 11 September 2018.
7. THE DURATION OF THIS AGREEMENT
7.1 Unless novated by a further agreement (including any further agreement concluded
following an approval of the regularisation application), this agreement will operate for a period
of two years, namely until 11 September 2020.’

[6] In essence, the Victor J order granted the respondent an opportunity to
regularise its non -compliance with the By-laws that governed the construction of
billboards on the municipality’s land. The respondent agreed to bring an application
to regularise the erection of the billboard by 11 September 2020. The order further
made provision for payment of rental to the municipality with effect from 11
September 2018, and the respondent undertook to provide the municipality with a
statement and debatement of 20% of the gr oss income which it earned from its
advertisers. The statement was to be provided on the first day of each month

advertisers. The statement was to be provided on the first day of each month
commencing 1 October 201 8. Furthermore, paragraph 6 of the order required the
respondent to pay arrear rental in respect of the billboard from the date the billboard

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was installed and/or when it began displaying advertisements , such date being 11
September 2018.

[7] Pursuant to the Victor J order, the respondent submitted its regularisation
application on 9 October 2018. It failed, however, to make payment of the prescribed
fees in terms of s ections 54 and 6 4 of the By -laws to enable the municipality to
consider the application. 2 In a flurry of correspondence tha t passed between the
parties, the respondent admitted firstly, that it had failed to pay the prescribed fees
but explained that it was waiting to meet with the municipal manager to obtain the
municipality’s banking details and hand over two cheques. S econdly, that the
billboard was not in compliance with the municipality’s By-laws. The municipality’s
attorneys acknowledged receipt of the regularisation application on 9 November
2018. They indicated that the municipality was willing to consider such application
subject to the prescribed fees being paid.


2 Sections 54 and 64 of the By-laws provide as follows:
‘54. Damage to Municipality property –
(1) No person shall intentionally or negligently, in the course of erecting or removing any advertising sign, advertising
structure, poster or banner cause damage to any tree, electric service or other Municipality installation or property.
(2) Any costs incurred by Municipality for repair to damaged trees, environment, electric standard, service or any
Municipality property, will be for the account of the responsible persons.
64. Tariffs –
(1) The Municipality shall determine tariffs or fees from time to time in accordance with Section 4(c) of the Local
Government Systems Act, Act 32 of 2000 and also in accordance with the provision of the Municipal Finance
Management Act, 2003 (Act No. 56 of 2003).
(2) All refundable deposits will be forfeited to the Municipality in the event of non-compliance of any of the foregoing
By-laws or its approved procedural guidelines.

By-laws or its approved procedural guidelines.
(3) Every person who applies to the Municipality for permission of an adverti sing sign or advertisement to be
displayed, must on making the application, pay to the Municipality the tariff determined therefore, and no application
will be considered until such tariff has been paid.
(4) The set of rates as drawn up by Municipality and revised from time to time, as appropriate, shall apply.
(5) The payment of any tariff in terms of this By-law shall not absolve any person from criminal liability arising from
his failure to pay nor shall the fact that a person has been convicted of an offence under this By-law relieve him from
the liability to pay the appropriate tariffs in terms of these By-laws.’
(6) Any amount due by a person in terms of the provisions of this by -law, will be a debt due and payable to the
Municipality and shall be recovered by the Municipality in any competent Court of Law.
(7) All tariffs and monies must be paid at the Municipality or at such other places as shall be determined by the
Municipality, from time to time.’

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[8] The respondent in the meantime failed to pay any rental due in accordance
with the Victor J order. It further failed to provide the municipality with a statement
of income earned from its advertisers. On 26 November 20 19 the municipality
launched an application in the high court for an order compelling the respondent to
disclose certain financial information regarding the amount of revenue it earned
from the billboard (the debatement application). The debatement application as well
as a counter-application filed by the respondent are still pending before the high
court.

[9] On 23 January 2020 the municipality addressed a letter to the respondent in
terms of which the respondent was given a deadline to pay the prescribed fees by the
end of February 2020 , failing which the municipality would have no option but to
exercise its right to remove the billboard at the respondent’s expense. Once again,
however, the respondent failed to pay the prescribed fees as required by the By-laws.
On 23 June 2020 the respondent was advised that the placement of any advertisement
on the billboard would be unlawful and that it should desist from doing so. The
municipality further advised that it was currently sourcing contractors to remove the
billboard from its site. The response from the respondent, through its attorneys on
30 June 2020 was that any removal of the billboard without the respondent’s consent
and without a court order would amount to a spoliation, entitling it to an appropriate
remedy.

[10] The municipality, purportedly a cting in terms of paragraphs 3 and 4 of the
Victor J order, secured the assistance of Soweto Steel Structural Engineering (Pty)
Ltd, the second respondent, to dismantle and remove the billboard on 20 August
2020. The respondent in turn brought an urgent application for a mandament van
spolie which served before Wepener J on the same day. The application was opposed

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by the municipality. By agreement between the parties, Wepener J granted an order
in the following terms:
‘. . .
2. Pending the final hearing of the matter the First and Second Respondents and anyone under
the First Respondent’s mandate are interdicted, ordered and directed to forthwith:
2.1 cease and desist from taking any further steps, or continuing to take steps to dismantle and
remove the billboard (“the property”) situate at Portion 988 of Elandsfontein 90 -IR described as
Gillooly’s Farm (“the Site”), or take any other steps to damage th e Property or render same non-
functional.’

[11] In its answering papers the municipality averred that the respondent had
simply failed to comply with the provisions of paragraphs 3.1, 3.2 and 3.3 of the
Victor J order in that it had failed to submit a competent and complete regularisation
application within 30 days of th at order. The municipality took the point that this
failure absolved it from making any decision in the matter. It averred that despite
repeated requests to the respondent, as evidenced by the correspondence referred to
in its affidavit, the latter had simply failed to comply with the terms of the settlement
agreement and the court order. According to the municipality, this non-compliance
entitled it to invoke the provisions of paragraphs 3.6 and 3.7 of the order. The
respondent was therefore obliged to either remove the billboard or reduce its size to
81m² within a period of 60 days or such further period as may be agreed to between
the parties.

[12] The spoliation application was eventually determined by Senyatsi J (the court
of first instance). Although the court of first instance found that the respondent was
in peaceful possession of the billboard , it nonetheless refused to grant it any relief
on the basis that: (a) the municipality had dismantled the billboard and reduced it to
a pile of steel structures; (b) it was not possible to restore the status quo ante as the

a pile of steel structures; (b) it was not possible to restore the status quo ante as the
billboard had been dismantled ; and (c) the remedy of spoliation had become moot

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because the order made on 11 September 2018 by Victor J had expired in September
2020. The respondent was granted leave to appeal to the full court.

[13] The full court accepted that the respondent was in peaceful possession of the
billboard when it was dispossessed of it by the municipality. On this basis the full
court identified the following two issues for determination. The first was whether
the impossibility of restoring the billboard was raised in the founding papers to
warrant the court of first instance’s consideration in that regard. The second was
whether the facts of the case supported the conclusion by the court of first instance
that there was an impossibility of restoring possession of the billboard. The full court
disagreed with the findings of the court of first instance. It found that the court had
made erroneous factual findings contained in the municipality’s answering affidavit
resulting in unfairness to the respondent.

[14] With regard to the first issue, the full court found that th is was not an issue
that had been raised by the municipality in its answering papers. The issue was raised
for the first time in the municipality’s heads of argument. It held that the court of
first instance, in concluding that the remedy of mandament van spolie did not find
application in the matter before it, did so on the basis of facts that were not properly
pleaded. As to the second issue, the full court reasoned that the court of first instance
had not found that the billboard no longer existed but rather that the municipality
and Soweto Steel had merely dismantled the billboard. The full court concluded that
the integrity or functioning of the billboard was not destroyed and that it had simply
been dismantled. On this basis there was no reason why, so the full court held, that
possession could not be restored to the respondent.

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Test for special leave
[15] For the municipality to succeed in its application for special leave, it is
required to show something more than the existence of reasona ble prospects of
success on appeal.3 In Cook v Morrison and Another,4 this Court held:
‘The existence of reasonable prospects of success is a necessary but insufficient precondition for
the granting of special leave. Something more, by way of special circumstances, is needed. These
may include that the appeal raises a substantial point of law; or that the prospects of success are so
strong that a refusal of leave would result in a manifest denial of justice; or that the matter is of
very great importance to the parties or to the public. This is not a closed list . . .’

[16] The test of what constitutes a reasonable prospect of success is well
established. The municipality is required to convince this Court that there is a
‘realistic chance on appeal’. In other words, it is required to demonstrate that ‘there
is a sound rational basis to conclude that there is a reasonable prospect of success on
appeal’.5 It is further required to show that ‘something more by way of special
circumstances, is needed’.6

[17] Before this Court, the primary contention advanced by the municipality was
that it had acted lawfully in terms of a valid court order when it removed the illegally
constructed billboard from its site. Its case was that it did not take the law into its
own hands as the order of Victor J entitled it to remove the billboard in circumstances
where the respondent had failed to comply fully with the terms of that order. It was
submitted that the respondent had been placed on notice on several occasions to
comply with the order and to submit a fully compliant regularisation application in
terms of the By-laws but it failed to do so. It was contended that ordering restoration

3 P A F v S C F [2022] ZASCA 101; 2022 (6) SA 162 (SCA) para 24.

3 P A F v S C F [2022] ZASCA 101; 2022 (6) SA 162 (SCA) para 24.
4 Cook v Morrison and Another [2019] ZASCA 8; [2019] 3 All SA 673 (SCA); 2019 (5) SA 51 (SCA) para 8.
5 MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016) paras
16-17.
6 Cook v Morrison and Another para 8.

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of the billboard to the responden t in these circumstances would amount to
sanctioning an illegality.

[18] There was no dispute that at the time the municipality took steps to remove
the billboard from its site, the respondent was in peaceful and undisturbed possession
of it. The central issue, however, was whether the full court was correct in ordering
the restoration of the status quo ante.

[19] The underlying principles governing the common law remedy of a
mandament van spolie are well-established. As far back as in 1906, Innes CJ in Nino
Bonino v De Lange,7 enunciated the principle underlying the mandament van spolie
as follows:
‘It is a fundamental principle that no man is allowed to take the law into his own hands; no one is
permitted to dispossess another forcibly or wrongfully an d against his consent of the possession
of property, whether movable or immovable. If he does so, the court will summarily restore the
status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of
the dispute.’

[20] In Tswelopele Non -Profit Organisation and Others v City of Tshwane
Metropolitan Municipality and Others,8 this Court explained the remedy as follows:
‘Under [the mandament van spolie], anyone illicitly deprived of property is entitled to be restored
to possession before anything else is debated or decided ( spoliatus ante omnia restituendus est ).
Even an unlawful possessor – a fraud, a thief or a robber – is entitled to the mandament’s
protection. The principle is that illicit deprivation must be remedied before the courts will decide
competing claims to the object or property.’


7 Nino Bonino v De Lange 1906 TS 120 at 122.
8 Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality [2007] ZASCA 70;
[2007] SCA 70 (RSA); 2007 (6) SA 511 (SCA) para 21.

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[21] In Ngqukumba v Minister of Safety and Security and Others,9 the
Constitutional Court described the remedy as follows:
‘The essence of the mandament van spolie is the restoration before all else of unlawfully deprived
possession to the possessor. It finds expression in the maxim spoliatus ante omnia restituendus est
(the despoiled person must be restored to possession before all else). The spoliation order is meant
to prevent th e taking of possession otherwise than in accordance with the law. Its underlying
philosophy is that no one should resort to self -help to obtain or regain possession. The main
purpose of the mandament van spolie is to preserve public order by restraining persons from taking
the law into their own hands and by inducing them to follow due process.’

[22] It is trite that in order to obtain a mandament van spolie an applicant has to
show that (a) she or he was in peaceful and undisturbed possession of the thing, and
(b) she or he was unlawfully deprived of such possession. In view of the strict
requirements of the remedy, there are a limited number of defences whi ch a
respondent can raise in spoliation proceedings. As the authors of LAWSA point out:
‘No spoliation is committed where a person is lawfully deprived of his or her possession. The
respondent can justify his or her dispossession of the applicant by showi ng that the applicant has
genuinely and freely consented to give up his or her possession or that he or she was authorised
by a court order or by statute to dispossess the applicant….’10

[23] Whilst the first requirement poses no difficulty in the present matter, the
second requirement has to be considered. The question that arises is whether the
municipality had ‘unlawfully’ deprived the respondent of possession of the billboard
when it took steps to dismantle it on 20 August 2020. To answer this question, it is
necessary to have regard to the underlying reasons for the conclusion of the

necessary to have regard to the underlying reasons for the conclusion of the
settlement agreement and the Victor J order. The conclusion of the settlement
agreement must be seen in context and against the background facts set out above.

9 Ngqukumba v Minister of Safety and Security and Others [2014] ZACC 14; 2014 (7) BCLR 788 (CC); 2014 (5) SA
112 (CC); 2014 (2) SACR 325 (CC) para 10.
10 27 LAWSA 2 ed para 108.

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The fact that the respondent was required to submit a regularisation application in
compliance with the By-law and within the time frames stipulated in the agreement,
points to an acknowledgement on its part that its conduct in installing the billboard
on the municipality’s site was unlawful and had to be rectified . The consequences
of not complying with the By-laws were fully spelt out in paragraph 3.7 of the Victor
J order. The terms of the court order made it plain that in the event of any non -
compliance by the respondent, the municipality would be entitled to remove the
offending billboard.

[24] The court order empowered the municipality to remove and dismantle the
structure in the event that the regularisation application was unsuccessful . The
regularisation process had to, in terms of the court order, be done in conformity with
the applicable By-laws. The order explicitly stated that mere submission of the
regularisation application was not a fait accompli. The application had to comply
with all the prescripts of the relevant By-laws. Clause 3.5 clearly spelt out that the
municipality’s discretion was not fettered by the agreement between the parties.

Relevant By-laws
[25] It is common cause that the billboard was illegally constructed in that its size
and proximity to the intersection contravened the municipality By-laws governing
outdoor advertising. It remained an illegal structure until it was dismantled. The
relevant By-laws in this respect are the following. Section 3(1) of the By-laws
provides:
‘These By -laws apply to all outdoor advertising in the area of jurisdiction of the Ekurhuleni
Metropolitan Municipality and are binding on all persons, including the State, sta te organs, state
agencies and all state institutions, seeking to display or erect advertising signs or advertisements.’
Section 52(5) provides:
‘Every application must be accompanied by the prescribed application fee and, where applicable,

a deposit as determined by the Municipality from time to time.’

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Section 52(14) provides that:
‘An application which has shown no substantive progress due to any act or omission on the part
of the applicant shall be deemed to have lapsed one year after date of submission to the
Municipality, unless motivation to the contrary is supplied to the satisfaction of the Municipality
or delegated department.’
Section 64(3) provides as follows:
‘Every person who applies to the Municipality for permission of an advertising sign or
advertisement to be displayed, must on making the application, pay to the Municipality the tariff
determined, therefore, and no application will be considered until such tariff has been paid.’11

[26] One of the requirements that had to be met for a successful application was
payment of the prescribed fees at the time the application was lodged . Despite
numerous requests from the municipality for the respondent to comply with this
requirement, it failed to do so. The respondent instead came up with new proposals
which contradicted the terms of the court order. Amongst the proposals made was
that the billboard be left intact in exchange for the respondent performing certain
functions in favour of the municipality.12

[27] The municipality was not authorised to consider the regularisation application
without the prescribed fees being paid. Doing so would be to violate its own By -
laws. The failure to pay the prescribed fees meant that the respondent had submitted
a non -compliant regularisation application . Absent a compliant regularisation
application there was no obligation on the municipality to consider the application.


11 Ekurhuleni Billboards and Display of Advertisements By-Laws of 30 March 2017.
12 Tshepo Gugu proposed to:
‘b) Take up responsibility to maintain Gillooly’s farm and keep it in excellent landscaping condition;
c) Employ 10 Ekurhuleni Youth and empower them with landscaping skills;

c) Employ 10 Ekurhuleni Youth and empower them with landscaping skills;
d) Taking occupation of dilapidated buildings at Gillo oly’s farm and establish a thriving Nursery & Landscaping
College;
e) Establish a township greening and tree planting project from the Nursery and empower, beautify and greenize the
Townships of Ekurhuleni on an ongoing and full time basis.’

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[28] Section 52(14) of the By-laws provides that every application which has not
shown substantive progress lapses after 12 months from the date of submission. The
respondent's application lapsed on 7 October 2019. Despite this, it only attempted to
make payment sometime in November 2019, long after the 12 months had lapsed. It
is clear from the wording of s 52(14) that the section affords an applicant time to
remedy whatever defect might exist in the application within 12 months from date
of submission, thereafter such application lapses.

[29] Notwithstanding the fact that the application had not shown progress for a
period of 12 months , due to non -payment of the prescribed fee, the municipality
wrote to the respondent on 23 January 2020, more than 15 months from the date of
submission, requesting it to pay the prescribed fee before 28 February 2020, failing
which the municipality would be left with no option but to remove the billboard.
This letter served to clear up any misunderstanding and/or confusion that might have
existed on the par t of the respondent, for whatever reason . The municipality also
clarified to whom and how such payment had to be made. 13 Despite all of this the
respondent failed to comply, leaving the municipality with no option but to enforce
the terms of the court order.

[30] Consequently, we find that the municipality was justified in taking steps to
dismantle the billboard as it did on 20 August 2020: in the particular circumstances,
the respondent was not in lawful possession of the billboard. Allowing this structure
to remain on the municipality’s land, would be to sanction an illegality. From the
outset, the respondent was fully aware that the erection of the billboard was in
violation of the By-laws.

13 ‘City planning deals with all applications for Outdoor Advertising. All applications for outdoor advertising should

be submitted together with an agreement as well as the fee for the administration of the lease. All monies must be paid
to Ekurhuleni finance building and a copy of the proof of such payment handed to the relevant person accepting
applications, must be submitted to the municipality.’

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Mootness
[31] A further point raised by the municipality was that, at the time the respondent
had approached the full c ourt the appeal was moot. The Victor J order had a two-
year lifespan. The settlement agreement provided that ‘unless novated by a further
agreement (including any further agreement concluded following an approval of the
regularisation application), this agreement will operate for a period of two years,
namely until 11 September 2020’.

[32] The jurisprudence on mootness is trite. Courts generally shy away from
entertaining issues that are no longer relevant and have no practical effect. The
limited resources of courts should be directed at dealing with live disputes. In Police
and Prisons Civil Rights Union v South African Correctional Service Workers’
Union and Others (Poli ce and Prisons Civil Rights Union),14 the Constitutional
Court, however, reiterated that mootness should not be an absolute bar to the
justiciability of an issue. The court may entertain an appeal, even if moot, where the
interests of justice so dictates.15 The determination whether the interests of justice so
dictate involves an exercise of a discretion by the court after considering various
factors, including whether the order will have some practical effect as well as the
extent of its importance to the parties or to others.16

[33] The full court found that the municipality had wrongfully interfered with the
respondent’s peaceful possession, since the power or authority of the municipality
to remove the billboard depended on the rejection of the regularisation applic ation,

14 Police and Prisons Civil Rights Union v South African Correctional Services Workers' Union and Others [2018]
ZACC 24; [2018] 11 BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); (2018) 39 ILJ 2646 (CC); 2019 (1) SA 73 (CC)
paras 43-44; Solidariteit Helpende Hand NPC and Others v Minister of Cooperate Governance and Traditional Affairs
[2023] ZASCA 35 paras 12-14.

[2023] ZASCA 35 paras 12-14.
15 Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9)
BCLR 883 (CC) para 9. See also: Minister of Mineral Resources v Sishen Iron Ore Company (Pty) Ltd [2013] ZACC
45; 2014 (2) SA 603 (CC); 2014 (2) BCLR 212 (CC) para 104.
16 Ibid fn 14 para 44.

18
which did not materialise. By focussing solely on the issue of restoring possession
to the respondent, the full court ignored t he terms of the court order and the failure
on the part of the respondent to regularise its otherwise illegal installation. In so
doing, the full court had erred.

[34] As mentioned already, the regularisation application lapsed on 7 October 2019
as a result of non -compliance by the respondent with s 64(3) of the By -laws. The
municipality, however, afforded the respondent a further extension until 28 February
2020 to comply. The municipality commenced with the dismantling of the Billboard
only on 20 August 2020 , almost seven months after its letter of 23 January 2020.
The municipality was therefore within its rights to invoke sub-paragraphs 3.6 and
3.7 of the Victor J order.

[35] The above co nclusion renders it unnecessary to deal with whether the
restoration of the status quo ante was competent in the circumstances where the
billboard was partially dismantled. From the photos on record, it is clear that the
display screen, media player and control system had been removed and all that was
remaining is the steel frame. Although the court would ordinarily order the
restoration of the status quo ante, the difficulty facing the respondent is that the
structure that is sought to be restored in any event violates the By-laws in terms of
both its size and location.

[36] This Court in Eskom Holdings SOC Limited v Masinda17 found that ‘although
it is correct that spoliation requires restoration of possession as a precursor to
determining the existence of the parties’ rights . . . , there may well be circumstances
in which a court will decline to issue spoliation . . .’. One such circumstance, is where
the status quo ante is to be restored through unlawful means and through placing the

17 Eskom Holdings SOC Limited v Masinda [2019] ZASCA 98; 2019 (5) SA 386 (SCA) para 12.

19
members of the public in danger. It is for this reason that the size and location of
billboards is prescribed in the By-laws.

[37] In conclusion, we deem it necessary to compare the situation that faced the
municipality herein with that faced by the respondent in Ngqukumba v Minister of
Safety and Security (Ngqukumba).18 This was a case involving the spoliation of a
motor vehicle, the engine and chassis numbers of which had been altered . In
upholding the appeal, the Constitutional Court reasoned thus:
‘It seems to me that on this subject the Supreme Court of Appeal proceeds from the premise that
a tampered vehicle is no different from an article the possession of which would be unlawful under
all circumstances. That is an erroneous premise because possession of a ta mpered vehicle will be
unlawful only if it is ‘without lawful cause’. That leads me to a crucial point of departure. It is that
in this case we are not concerned with objects the possession of which by ordinary individuals
would be unlawful under all circu mstances. Had we been concerned with objects of that nature,
then the mandament van spolie might well not be available, but that issue is not before us and need
not be decided. The fact that we are here concerned with an article that may be possessed quite
lawfully makes all the difference. On the assumption that an individual can never possess heroin
lawfully, the Supreme Court of Appeal’s heroin example is not apt. At the risk of repetition, the
simple point of distinction is that an individual can posses s a tampered vehicle if there is lawful
cause for its possession.’

[38] We consider that u nlike in Ngqukumba, where the unlawful possession of a
tampered vehicle had not yet been determined , in the current matter it is not in
dispute that from the time of its erection, the billboard did not comply with the law
– it is an illegal structure. The respondent was aware of this fact throughout. In our

– it is an illegal structure. The respondent was aware of this fact throughout. In our
view, no court is permitted to countenance a glaring illegality. Nor should a court
turn a blind eye on the prescripts of the law and the importance of observing them.
After all, the By-laws are designed to maintain order, ensure public safety, and create

18 Ibid fn 9 para 15.

20
harmonious living environments. They also play a vital role in promoting sound
business interests and competition as well as regulating community life.

[39] Having found that the municipality had acted within the confines of the court
order, both the application for special leave and the appeal ought to succeed. There
is no reason why costs should not follow the result.

Order
[40] We accordingly make the following order:
1 The application for special leave to appeal succeeds.
2 The appeal is upheld with costs, such costs to include the costs of the
employment of two counsel.
3 The order of the full court is set aside and replaced with the following:
‘The appeal is dismissed with costs.’




__________________________
R SEEGOBIN
ACTING JUDGE OF APPEAL





__________________________
N M MBHELE
ACTING JUDGE OF APPEAL

21
Appearances

For the applicant: P Strathern SC (with him E Sithole)
Instructed by: AF van Wyk Attorneys, Johannesburg
Webbers Attorneys, Bloemfontein

For the respondent: W Krog
Instructed by: Le Mottée Rossle Attorneys, Johannesburg
Badenhorst Attorneys, Bloemfontein