Boudely Properties (Pty) Ltd v City of Cape Town (9410/2010) [2011] ZAWCHC 25 (22 February 2011)

Boudely Properties (Pty) Ltd v City of Cape Town (9410/2010) [2011] ZAWCHC 25 (22 February 2011)

The court found that at the time the respondent sought interdictory relief, the unlawful sign had not yet been fully erected, and the statutory remedy under section 75 of the By-Law would only become available after erection. Therefore, the respondent had no alternative remedy to prevent the completion of the sign. The applicant's conduct was viewed as a manipulation of the system resulting in the erection of an unlawful sign. The court was not persuaded that another court might reasonably reach a different conclusion regarding the availability of alternative remedies, and accordingly refused leave to appeal.

Citation
[2011] ZAWCHC 25
Parties
Applicant: Boudely Properties (Pty) Ltd; Respondent: City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 February 2011
Case Number
9410/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Counter Claim and Grant of Interdict in Main Application.
Outcome
Application for leave to appeal refused with costs, including costs of two counsel.
Judges
R B Cleaver
Legal Topics
Interdictory Relief, Alternative Remedy, Municipal by Laws, Leave to Appeal
Civil Procedure Administrative Law Interdictory Relief Alternative Remedy Municipal by Laws Leave to Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Boudely Properties (Pty) Ltd

Applicant

City of Cape Town

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Counter Claim and Grant of Interdict in Main Application.

Legal Issues

  1. 1 Whether the respondent had an alternative remedy available under section 75 of the Outdoor Advertising and Signage By-Law instead of seeking interdictory relief.
  2. 2 Whether leave to appeal should be granted on the basis that another court might reach a different conclusion regarding the availability of alternative remedies.

Ratio Decidendi

The court found that at the time the respondent sought interdictory relief, the unlawful sign had not yet been fully erected, and the statutory remedy under section 75 of the By-Law would only become available after erection. Therefore, the respondent had no alternative remedy to prevent the completion of the sign. The applicant's conduct was viewed as a manipulation of the system resulting in the erection of an unlawful sign. The court was not persuaded that another court might reasonably reach a different conclusion regarding the availability of alternative remedies, and accordingly refused leave to appeal.

Court Disposition

Application for leave to appeal refused with costs, including costs of two counsel.

Orders

  • The application for leave to appeal is refused.
  • The applicant is ordered to pay the costs of the application, including the costs of two counsel.