HMKL 3 Investments (Pty) Ltd v South African National Roads Agency Limited and Others (67270/2010) [2011] ZAGPPHC 24 (7 February 2011)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG, PRETORIA)

DATE:7/02/2011

CASE NO: 67270/2010

In the matter between:

HMKL 3 INVESTMENTS (PTY) LTD …...............................................APPLICANT

And

THE SOUTH AFRICAN NATIONAL ROADS

AGENCY LIMITED …...........................................................................1st RESPONDENT

THE MINISTER: DEPARTMENT

OF TRANSPORT ….............................................................................2nd RESPONDENT

TRENCON CONSTRUCTION (PTY) LTD ….....................................3rd RESPONDENT

JUDGMENT

BAM, AJ

1. The applicant is the owner of immovable property, Erf 2441 Lyttleton Manor Extension 8, situated near Centurion on the Western side of and adjacent to section 21 of the National Road N1 passing on the Eastern side of the city of Pretoria.

2. The first respondent, hereinafter referred to as "SANRAL" is the National Roads Agency of the Republic of South Africa,

established in terms of section 2 of the South African National Roads Agency Limited and National Roads Act no. 7 of 1998. "The Act."

3. The applicant, represented by Mr Grobler SC, with him Mr Van der Merwe, applies, on an urgent basis, for an interim interdict restraining

SANRAL and the third respondent, a contractor employed by SANRAL, from erecting any toll structures, more specifically a toll gantry,

on section 21 of the N1, that may obscure billboards and advertising signage on Erf 2441 from the travelling public, pending the review of the approval by second respondent of the declaration on 28 March 2008 by SANRAL of section 21 of the N1 as a continuous toll road and establishment of electronic toll points, with ancillary relief. (A toll gantry can best be described as a toll gate consisting of a supportive structure containing electronic devices for the registration of toll liability of vehicles passing through.)

4. Mr Hodes SC, assisted by Mr Van Eeden SC and Mr McAslin, appearing for SANRAL oppose the application. It was contended by SANRAL that the matter was not urgent and that it should be struck from the roll. The parties, however, agreed that urgency should be argued simultaneously with the other issues.

5. In order to succeed with an interim interdict, it is trite that certain requisites have to be complied with. In the matter of L F Boshoff Investments (Pty) Ltd v Cape Town Municipality, Cape Town Municipality vLF Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) at 267B-F the learned judge, CORBETT J (as he then was) ruled as follows:

"Briefly these requisites are that the applicant for such temporary relief must show -

(a) that the right which is the subject-matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

(b) that, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) that the balance of convenience favours the granting of interim relief; and

(d) that the applicant has no other satisfactory remedy"

See also Setlogelo v Setlogelo 1914 AD 221 at p.227.

6. Mr Hodes submitted that a court still has a discretion to refuse the interim relief even in the event of the applicant having succeeded in establishing all the requirements.

"Discretion" should, however, not be understood to mean discretion in the strict sense and must in any event be exercised judicially.

See Knox D'Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (AD) 362B-D, per E M GROSSKOPF JA:

"The Courts have not defined the considerations which may be taken into account in exercising the so-called discretion, save for mentioning the obvious examples such as the strength or weakness of the applicant's right, the balance of convenience, the nature of the prejudice that may be suffered by the applicant and the availability of other remedies. Whilst this list is not exclusive, it does indicate what the relevant features are in an application of this sort. I find it difficult to imagine that considerations which are entirely unrelated to these features can be accorded weight in granting or refusing an application for an interim interdict.

Finally, in regard to the so called discretionary nature of an interdict: if a court hearing an application for an interim interdict had a truly discretionary power it would mean that, on identical facts, it could in principle choose whether or not to grant the interdict and that a Court of appeal would not be entitled to interfere merely because it disagreed with the lower court's choice (Perskor case at 800D-F). I doubt whether such a conclusion could be supported on the grounds of principle and policy. As I have shown, previous decisions of this Court seem to refute it."

7. Regarding the requisite of a clear right, OGILVIE THOMPSON J (as he then was) in Gool v Minister of Justice and Another 1955 (2) SA 682 (CPD) at 688D referred with approval (save for a small amendment referred to in the remark following the quotation) to the headnote of Webster v Mitchell 1948 (1) SA 1186 (W) which reads as follows:

"In an application for a temporary interdict, applicant's right need not be shown by a balance of probabilities; it is sufficient if that right is prima facie established, though open to some doubt. The proper manner of approach is to take the facts as set out by the applicant together with any facts set out by the respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in contradiction by respondent should then be considered, and if serious doubt is thrown upon the case of applicant he could not succeed."

To this quotation the learned judge added the following remark:

"With the greatest respect, I am of the opinion that the criterion prescribed in this statement for the first branch of the enquiry thus outline is somewhat too favourably expressed towards the applicant for an interdict. In my view the criterion on an applicant's own averred and admitted facts is: should (not could) the applicant on those facts obtain final relief at the trial. Subject to that qualification, I respectfully agree that the approach outlined in Webster v Mitchell, supra, is the correct approach for ordinary interdict applications."

8. The functions, powers, and responsibilities of SANRAL are regulated by section 25 of the Act which reads as follows:

"25. Main functions of Agency - (1) The Agency, within the framework of government policy, is responsible for, and is hereby given power to perform, all strategic

planning with regard to the South African national roads system, as well as the planning, design, construction, operation, management,

control, maintenance and rehabilitation of national roads for the Republic, and is responsible for the financing of all those functions

in accordance with its business and financiai plan, so as to ensure that government's goals and policy objectives concerning national

roads are achieved, subject to section 32(3):

9. Section 26 of the Act provides for additional powers and functions of SANRAL, of which subsection 26{i) reads as follows:

"In addition to the Agency's main powers and functions under section 25 the Agency is competent - (i) to plant trees, shrubs, other plants or grass, and protect and promote any vegetation, alongside the roadways of national roads, and to take any other steps and perform any other work considered desireable for the convenience of users of a national road or the appearance of a national road or in order to prevent soil erosion on a national road or to prevent it arising as a result of the construction of a national road."

10. Toll levying by SANRAL is governed by the provisions of section 27 of the Act, of which the applicable subsections provide as follows:

10.1 Section 27(4): 'Levying of toll by the Agency - (1) Subject to the provisions of this section, the Agency -

(a) with the Ministers approval -

(i) may declare any specified national road or any specified portion thereof, including any bridge or tunnel on a national road, to be a toll road for the purposes of this Act; and

(ii) may amend or withdraw any declaration so made"

10.2 Section 27(4): "The Minister will not give approval for the declaration of a toll road under subsection (1)(a), unless -

(a) the Agency, in the prescribed manner, has given notice, generally, of the proposed declaration, and in the notice-

(i) has given an indication of the approximate position of the toll plaza contemplated for the proposed toll road;

(ii) has invited interested persons to comment and make representations on the proposed declaration and the position of the toll plaza, and has directed them to furnish their written comments and representations

to the Agency not later than the date mentioned in the notice.

However, a period of at least 30 days must be allowed for that purpose.

(b) ...

(c) the Agency, in applying for the Minister's approval for the declaration, has forwarded its proposals in that regard to the Minister together with a report on the comments and representations that have been received (if any). In that report the Agency must indicate the extent to which any of the matters raised in those comments and representations have been accommodated in those proposals; and

(d) the Minister is satisfied that the Agency has considered those comments and representations."

11. It was contended by the applicant that the erection of a toll gantry is a "natural incident of a toll road'. A toll gantry is just another form of a toll gate and has the same purpose of gathering toll. In principle this seems to be correct. The specific location is immaterial in this regard.

12. It is common cause that Erf 2441 is situated within the municipal jurisdiction of the Tshwane Municipal Council. This property of

1,2661 hectares (8446 square meters) is wedged shaped with the N1 as its direct border on the Eastern side. On the Northern side it ends in the sharp point of the wedge, whilst the Western side is bordered by Theron Avenue, which runs almost parallel to the N1. To the South, adjacent to the property, is another property of the applicant, known as the Remaining Extent of Portion 58 of the farm Waterkloof 378.

13. On Erf 2441 the applicant erected two buildings facing the N1. The first building comprises two sections consisting of two storeys and one storey respectively. The double storey section is leased and/or occupied by amongst others New Africa, Clidet NO 1011 (Pty) Ltd trading as Maruleng Shopping Centre, Jubilee Crossing (Pty) Ltd and Cheetah Plains Lodge (Pty) Ltd. The single storey of this building is leased by C-Track. The other single storey building is partly leased by Adventure Power (Pty) Ltd. The remaining part of the latter building is leased by Mobile Telephone Networks (Pty) Ltd ("MTN").

14.

14.1 Advertising on the property is done by way of bill boards and signage on the front of the buildings. The bill boards and other signage are currently clearly visible to people travelling both North and South on the N1.

14.2 It is the applicant's contention that approval of the advertisements on the property falls within the jurisdiction of the Tshwane

Metropolitan Municipality and that SANRAL has no jurisdiction in that regard.

15. The City of Tshwane Metropolitan Municipality Control of Outdoor Advertising By-laws, 2006, provides as follows:

Section 2(1): "These bylaws are designed to regulate outdoor advertising on or visible from all public spaces in the Tshwane Municipal Area.

(2) Prohibition and control of the erection of signs;

2.1 No person shall erect, maintain or display a sign or allow any other person to erect, maintain or display a sign in a place or on a building or structure that is visible from any public space without the consent of the Municipality.

2.2 No person shall erect, maintain or display a sign or allow any other person to erect, maintain or display a third party advertisement,

except where the premises are in an area of minimum control as defined in these bylaws.

Any sign type not covered by these bylaws shall be regarded as an illegal sign unless the specific consent of the Strategic Executive Officer; Housing, City Planning and Environmental Management has been obtained:

16. Approvals for the advertising on the property were granted by the City Planning Division of the Metropolitan Municipality of the City of Tshwane in September 2006 and May 2007 in accordance with section 2(2) of the By-laws. These approvals were, however, withdrawn by the Municipality by notice, at the end of June 2010, without advancing any reasons therefore. The applicant was directed to remove the advertising signage and the bill boards within five days from the date of the notice. The applicant, as it was entitled to do, by email of the 5 July 2010 requested the Municipality to furnish reasons for the withdrawal. The Municipality, according to the applicant, has not responded yet. In the circumstances I do find the Municipality's notice of withdrawal of the approvals, without the advancing of reasons, somewhat peculiar. An application for the renewal of the approval for the advertisements has, in the meantime, been lodged with the Municipality.

17. It was submitted by SANRAL that the billboard advertisement of MTN was illegal in that MTN did not conduct an on-premise business in contravention of the terms of the Municipal bylaws. MTN used a part of a building on the property for nothing else than storage purposes. Mr Grobler did not agree and argued that the storage of goods should fall within the definition of "business practiced' envisaged by the approvals issued in terms of the Municipality bylaws. The part of the building rented by MTN was occupied and used by MTN for business purposes. I am in agreement with Mr Grobler's submission in this respect.

18.

18.1 SANRAL contends that the advertising on the property is in any event illegal in that it does not comply with the provisions of section 50 of the Act, the Regulations in terms of the Act, the by-laws of the Tshwane Munipality and the conditions contained in the title deed to the applicant's property. The applicant disputes the alleged illegality of the said advertising on the basis that the Act and Regulations in terms of the Act do not apply because the advertisements are displayed in the urban area within the sole jurisdiction of the Tshwane Municipality.

18.2 Section 50 of the Act reads as follows:

"50. Advertisements on or visible from national roads-(1) Except as provided in subsection (2), no person may -

(a) display an advertisement on a national road, or permit it to be so displayed;

(b) display, outside an urban area, any advertisement visible from a national road, or permit any advertisement which is so visible, to be so displayed;

(c) display any advertisement visible from a national road in an urban area, on any land adjoining the national road or on land separated from the national road by a street, or permit it to be so displayed.

(2) Subsection (1) does not apply to the displaying of any advertisement complying with the prescribed requirements (if any) as to the nature, contents or size of such an advertisement or the time, manner or place of its display, where the display thereof is authorised by or under the regulations concerned, or the advertisement -

(a) is displayed on a building on which a business or undertaking is carried on, and contains no more than the name of the business or undertaking or description of its nature, the name of its proprietor and the further information (if any) as authorized by or under the regulations, concerned;"

Regulation 5 of the regulations under the Act provides as follows:

"5. Regulations not applicable in some municipal urban areas. —(1) Subject to sub-regulation (2) and in terms of section 156, read with Part B of Schedule 5, and Chapter 3 of the Constitution of the Republic of South Africa Act 108 of 1996, these regulations shall not apply in an urban area where the relevant municipality has promulgated a by-law —

(a) dealing substantially with the matters covered by these Regulations, and

(b) that is applicable to national roads in that area,

or in any urban area which the Minister has declared these regulations not applicable by notice in the Government Gazette."

20. Section 151(3) and (4) of the Constitution, Act 106 of 1996, read as follows:

151(3) "A municipality has the right to govern, on its own initiative, the local government affairs of the community, subject to national and provincial legislation, as provided for in the Constitution."

151(4) "The national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions."

Section 156(3) of the Constitution further provides as follows:

"Subject to section 151(4), a by-law that conflicts with national or provincial legislation is invalid. If there is a conflict between a by-law and a national or provincial legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative."

21. Pertaining to the question whether the Regulations under the Act are applicable in the circumstances, the Applicant contended that those regulations restricting third party billboard advertisements constitute breaches of the right to freedom of expression entrenched in terms of section 16(1) of the Constitution, on the basis that such limitation is not reasonable and justifiable under section 36 of the Constitution. Mr Grobler SC, however, in this regard stated during argument that the Applicant did not intend to pursue any constitutional point.

The notice by SANRAL in terms of the provisions of section 16 of the Constitution is therefore not applicable.

22.

22.1 Advertising on immovable property, in casu Erf 2441, which is located in the urban area of Tshwane Municipality, adjacent to the N1, is to my mind, regulated by the by-laws of the Municipality and not by the Act and Regulations. Section 50(1 )(c) of the Act refers to advertisements visible from a national road in an urban area. The bylaws of the municipality, section 2(1), refer to the visibility of an advertisement from a public place. Public place, in its context in an urban are, without doubt, includes a national road.

Section 1 of the bylaws define "public space" as follows: "means a Municipality owned and controlled area to which the public has free access that includes roads, streets, squares, transit facilities, sport stadia, sport -and recreational facilities such as parks, nature trails and golf courses and also premises accessible to the general public on a more continuous basis such as large suburban shopping centres;"

22.2 To my mind the Act and Regulations are not in conflict with the Municipality bylaws and there is no reason why the provisions of the Act should prevail. Regulation 5 of the Regulations under the Act, read with section 151(3) and (4) of the Constitution, specifically

provides for the Municipal bylaw to be applicable within the urban area and to regulate and provide for issues

regarding the legalizing of the advertisements raised in this matter.

See Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC).

23. It therefore follows that I find that the applicant does not need the approval of SANRAL to legalize any advertisement on Erf 2441 visible from the N1. The approval of the advertisements falls within the jurisdiction of the Tshwane Municipality. The fact that the initial approvals for the advertisements were withdrawn by the Municipality should be considered against the background of the Municipality failing, for a period of four months, to furnish reasons for the withdrawal of the applicant's valid approvals to advertise on the property. The Municipality did apparently, also, not follow up the official direction to the applicant and the latter's failure to remove all the advertisements with five days of the date of the notice of withdrawal. Despite the withdrawal of the approvals I am reluctant to find that the advertisements are now illegal. It is clear that the Municipality was satisfied with the legality of the advertisements until the end of June 2010. Why it suddenly became illegal is inexplicable. Any finding concerning the reason for the invalidation of the approvals will at this point be nothing but conjecture. It is further of importance to note that at the time when the discussions between the applicant and SANRAL commenced in May 2010 the approvals were still unquestionably valid.

24. The contention of SANRAL that the illegality of the advertisements is of importance should be considered in the light of the views I have expressed above and in view of the fact that the declaration of section 21 of the N1 already occurred in 2007. This submission is dismissed. The considerations regarding the impact of the compliance or not with the provisions of section 27(4) of the Act follow below.

25.

25.1 It is not in dispute that SANRAL gave general notice, in terms of section 27(4)(i) of the Act, of the proposed declaration of section

21 of the N1 as a toll road. This provision does, however, not exclude that an interested party should be approached and invited in terms of the provisions of section 27(4)(ii), and be directed to furnish written comments and representations to the Agency (SANRAL).

25.2 The applicant, who is without doubt an interested party, submitted that SANRAL did not, in terms of section 27(4)(ii) of the Act, invite the applicant as interested party to furnish comments and make representations regarding the proposed declaration of the toll road in question and the approximate position of the toll plaza, to enable SANRAL to forward their comment to the Minister in order to satisfy the Minister, in terms of section 27(4)(c) that SANRAL has considered those comments and representations. If this was not done, it follows that the Minister

was never put in the situation to properly consider, as the Minister was obliged to do, all the relevant facts regarding the approval of SANRAL's application for the declaration of the toll road.

25.3 In these circumstances, where there was no compliance with the provisions of section 27(4), so Mr Grobler submitted, the approval by the Minister of the declaration of the toll road was an irregularity which should be reviewed and set aside, and that it follows that the declaration of the toll road itself should also be set aside on the basis that a mandatory and material condition prescribed by section 27 of the Act was lacking, within the meaning of section 6(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").

25.4 SANRAL contended that section 27(4)(i) of the Act does not provide for individual notice to anybody of the proposed declaration of a toll road. The only inference that can be drawn from this submission is that the applicant was not at all notified and invited by SANRAL to comment or to make representations before the declaration of section 21 of the N1 as a toll road in terms of section 27(4)(ii) of the Act. This was an irregularity.

26. It is important to note that SANRAL decided to move the location of the toll gantry on two occasions. In this regard the applicant contends that it was not afforded an opportunity to submit proper representations to SANRAL. it was further submitted by the applicant

that the effect of a toll gantry on the adjacent property of tbe applicant justified a hearing in view of the principle of audi alteram partem. The discussions between the parties when the applicant endeavoured to persuade SANRAL to relocate the toll gantry came to nothing.

Applicant also submitted that SANRAL failed to comply with the provisions of section 3 and 4 of PAJA. These averments of the applicant are denied by SANRAL.

27. I am satisfied that the facts show prima facie that SANRAL failed to comply with the provisions of section 27(4) of the Act. Accordingly it follows that the applicant at least has a prima facie right to protect and that applicant should, on the probabilities succeed with an application to have the second defendant's approval of the declaration of section 21 of the N1 as a toll road and the declaration itself reviewed and set aside.

28. There is a dispute between the parties whether the gantry will in fact obscure the advertisements on Erf 2441. I have been shown video footage of the road from a drivers view point. SANRAL concedes that the gantry would affect the visibility of advertisements but only of motorists driving in a northern direction. According to SANRAL the advertisements will be obscured for a very short time duration. In this regard I have been referred to video footage and a variety of photographs depicting toll gantry constructions. It appears to me that the framework of a gantry is of such a nature that it would be extremely difficult to recognize an advertisement which is obscured or partly obscured by the gantry's framework. It would in any event depend on the exact location thereof.

29. It was further submitted by the applicant that SANRAL did not comply with the provisions of the National Environmental Act 107 of 1998 ("NEMA"), as it was obliged to do. It was common cause that the impact of the Gantry was not considered by SANRAL. In this regard it was submitted by Mr Hodes that NEMA found no application as far as the location of toll gates are concerned.

30. I am however in agreement with Mr Grobler that SANRAL was obliged to consider the provisions of NEMA regarding the impact of the toll gantry on the environment. In this regard I have in mind the provisions of section 26(i) of the Act quoted in paragraph 9 above. The said section provides for additional powers of the SANRAL pertaining to steps which should be taken or work which should be performed considered desirable for the convenience of road users or the appearance of a national road. (See also section 24 of the Constitution.)

31. SANRAL's failure in this regard is clearly a non-compliance with a material issue and requirement of natural justice which amounts to an irregularity.

32. SANRAL raised a further defence namely that the application for review was brought outside the 180 day period prescribed by section 7 of PAJA. It is trite that calculation of the 180 day period can only commence once a clear intimation of the decision in question has been conveyed to the interested party. The applicant contended that the first notice of SANRAL's intentions to proceed with the construction of the toll Gantry was by letter from SANRAL of 21 June 2010. It was common cause that the applicant was informed on 4 May 2010 that the relocation of the toll gantry held time and cost implications for SANRAL; on 21 June 2010 the applicant was informed that the construction of the toll gantry would proceed; and on 6 August 2010 the applicant was informed that its request for the relocation of the toll gantry had been rejected. The construction of the toll gantry commenced on 19 October 2010.

33. In considering the facts regarding the 180 day issue, it seems to me that the applicant did not act unreasonable to correspond with SANRAL in the hope that the toll gantry would be relocated. It further appears to me that the calculation of the 180 days should not commence before 21 June 2010 when the applicant was informed that the construction of the gantry would proceed. It appears that the considerations regarding the relocation of the gantry, at that stage, turned upon the question of costs of such a project as referred to in the letter from SANRAL of 4 May 2010. That surely means that the relocation of the gantry was still considered.

34. The applicant's delay to lodge the application on an earlier date should be considered with the fact in mind that the construction only commenced on 19 October although the applicant's application for the relocation of the gantry had already been dismissed on 6 August 2010. I do not regard the time period from 19 October until the lodging of this application on 11 November to constitute an unreasonable delay.

35. I am satisfied that the applicant was justified in the circumstances to bring this application on an urgent basis. The history of the events culminated on 19 October when the construction recommenced. There was certainly a delay from 4 May when the relocation was still being reconsidered and 6 August when SANRAL informed the applicant that this application for the relocation was dismissed. In view of the impact of the construction of the gantry on both parties it was important and material to have the matter adjudicated upon as soon as reasonable possible.

36. Regarding the requisites for an interim interdict I am accordingly persuaded that the applicant:

36.1 has established a prima facie right in that SANRAL on the probabilities, did not comply with the provisions of section 27(4) of the Act before the declaration of section 21 of the N1 as a toll road. It was further established that SANRAL failed to comply with the provisions of section 2 and 3 of PAJA.

36.2 has established that it would suffer irreparable harm. In this regard it must be kept in mind that the applicant runs a business venture on its property. The fact that the applicant has currently no approval for the advertisements does not mean that applicant will never get approval in future. In this regard the balance of convenience favours the applicant. SANRAL intends to have the toll gantry operational in June 2012. There is no immediate financial loss SANRAL will suffer. There is no reason why the parties should not approach the Honourable Deputy Judge President again for an urgent date to have the main application adjudicated.

36.3 has no other remedy but to approach this court for the appropriate relief. An action for damages will not compensate the applicant for the harm it may suffer.

Accordingly I make the following order:

1. That the applicant's failure to comply with the requirements in respect of service and time periods prescribed by the Uniform Rules of the High Court be condoned and that Part A of the application be enrolled in terms of Rule 6(12) of the Uniform Rules of the High court.

2. That pending the determination of the relief/sought in Part B of the notice of motion, the first and third respondents be interdicted and restrained from erecting any toll structure on National Road N1 adjacent to Erf 2411 Lyttleton Manor Extention 8 (indicated as "Sanral proposed Position (TG003)" on the Arial photograph annexed to the notice of motion as annexure "A") that may obscure the advertising signage and billboards displayed on that Erf from the travelling public. The application for the relief sought in Part B of the notice of motion must be instituted within 20 (twenty) days of the date of this order.

3. That the costs in respect of the relief sought in Part A of this notice of motion is reserved for adjudication during the hearing of Part B hereof.

A J BAM

ACTING JUDGE OF THE NORTH GAUTENG HIGH COURT