REPUBLIC
OF NAMIBIA
HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case
no: A 421/2013
DATE:
29 FEBRUARY 2016
In
the matter between:
CONTINENTAL
OUTDOOR MEDIA (PTY)
LTD..................................................1ST
APPLICANT
ESHISHA
MEDIA NETWORKS
CC........................................................................2ND
APPLICANT
And
THE
MUNICIPAL COUNCIL FOR THE CITY
OF
WINDHOEK......................................................................................................1ST
RESPONDENT
PRIMEDIA
OUTDOOR (PTY)
LTD....................................................................2ND
RESPONDENT
ALIANCE
MEDIA
NAMIBIA...............................................................................3RD
RESPONDENT
MEDIA
SOLUTIONS
GROUP..............................................................................4TH
RESPONDENT
OUTTHERE
NAMIBIA.........................................................................................5TH
RESPONDENT
AD
OUTPOST.........................................................................................................6TH
RESPONDENT
ANTS
ADS
CC.........................................................................................................7TH
RESPONDENT
RAMA
MEDIA
CC.................................................................................................8TH
RESPONDENT
Neutral
citation: Continental Outdoor Media
(Pty) Ltd v The Municipal Council for the City of Windhoek (A
421/2013) [2016) NAHCMD 44 (29 February 2016)
Coram:
UNENGU AJ
Heard:
22 April 2015; 08 December 2015;
Delivered:
29 February 2016
Flynote:
Practice – Review application –
Locus standi
– Party must have real and substantial interest in the outcome
of the case – Applicant failing to persuade the Court of direct
and substantial interest in the outcome of the case – at best
the applicant established financial or commercial interests in the
advertising business offered by the first respondent from time to
time – Review application dismissed with costs.
Summary:
The second applicant (Eshisha Media
Networks CC) brought an application to review and set aside the
decisions taken by the first respondent (The Municipal Council for
the City of Windhoek) to approve the upgrading of prime lights to LED
billboards – The question arose whether the second applicant
has locus standi
to bring such an application – The Court found that the second
applicant does not have locus standi
and dismissed the application with costs because the applicant failed
to persuade the Court that it has direct or substantial interest in
the outcome of the case.
ORDER
(i)
The second applicant lacks locus standi
to bring this review application.
(ii)
The fourth respondent must comply with the notice given to it by the
first respondent to remove the billboard with its foundation if not
done yet.
(iii)
The review application by the second applicant is dismissed and
ordered to pay costs in favour of the first respondent.
JUDGMENT
UNENGU
AJ:
[1]
In this application, the applicants are seeking an order reviewing,
correcting and setting aside the decisions taken by the first
respondent.
These
are:
(i)
The approval granted to the second
respondent to erect a light emitting diode (LED) animated billboard
at Erf 8085 Katutura, Windhoek.
(ii)
The approval granted to the second
respondent to erect a LED animated billboard at Erf 8316 Windhoek.
(iii)
The approval granted to the respondent to
erect a LED animated billboard on the Airport Road, Avis, Windhoek.
(iv)
The approval granted to the fourth
respondent to erect a mega billboard at the intersection of Shanghai
and Mungunda streets, Katutura.
[2]
In the meantime, the first applicant, (Continental Outdoor Media
(Pty) Ltd has withdrawn his application against the first respondent
leaving the second applicant alone proceeding with the relief sought
in the notice of motion.
[3]
On the other hand, it is only the first and second respondents (the
City Council and Primedia Outdoor (Pty) Ltd) have elected to oppose
the application and had filed answering affidavits.
[4]
It is worth a while at this stage of the proceedings already to
mention that both applicants have sought an order from the Court to
declare the erection of the billboards unlawful, in contravention of
the Outdoor Advertising Regulations and the Outdoor Advertising
Policy with a prayer that the billboards be broken up or be
dismantled. This relief and prayer are not being pursued by the
second applicant anymore. In its place, the second applicant has now
asked the Court to order the first respondent to give to the second
and fourth respondents notices to remove the five billboards because,
according to the second applicant they were erected in conflict with
the Regulations and the Policy for outdoor advertising.
[5]
The application was heard by me on 22 April 2015 at 09h00 when Mr
Frank appeared on behalf of the second applicant, with Mr Marcus on
behalf of the first respondent and Mr Van Zyl representing the second
respondent.
[6]
The proceedings started off with Mr Frank addressing the Court
putting on record that Mr Van Zyl, counsel for the second respondent
was before court on a watching brief only. He said that should the
second applicant be successful, the second applicant would not ask
costs against the first and second respondents jointly and severally
but will ask a cost order for the opposition put up by the second
respondent. Mr Van Zyl agreed and confirmed Mr Frank’s
submission and in addition, pointed out that the second respondent
did not take a position of common cause with the first respondent but
merely to clarify issues raised in the application, not pure
opposition.
[7]
Another issue addressed by Mr Frank at the start of the proceedings
is the condonation application filed by counsel for the first
respondent. Mr Marcus filed his written heads of argument two days
out of time prescribed by the Rules and the Practice Directives of
this Court. The application was allowed and condoned the
non-compliance with the rules and practice directives by Mr Marcus,
as there was no objection or opposition from Mr Frank.
[8]
Another issue worth mentioning also is the issue of a point in
limine of locus
standi raised by the first respondent
against the second applicant, which point the first respondent has
abandoned.
[9]
Further, another dispute which could and shall be disposed of
promptly is the issue of the billboard granted and erected by the
fourth respondent, Media Solutions Group. Media Solutions Group did
not oppose and defend the review application by the second applicant.
In respect of the billboard, the first respondent conceded that the
billboard is contrary to the regulations and should be removed. In
fact, already on 06 November 2013, Ms Steenkamp, Manager for Economic
Development, gave notice to the fourth respondent by letter addressed
to Mr Peter Wamburi of Media Solutions to remove the billboard and
its foundation within seven working days from date of receipt of the
letter with a warning that the first respondent would be compelled to
take further action should it fail to adhere to the notice. Hereunder
is a reproduction of such a letter:
‘RE:
BILLBOARD ON ERF 9129 KATUTURA
Reference
is made to the recent allocation of a portion of Erf 9129, Katutura
to your company for outdoor advertising purposes.
During
our routine inspection on 23 October 2013 we have noticed that a new
foundation was casted only 45 m from the centre of the road. In an
email communication on the same day from our Ms Fortune Kauauatuku,
you were informed of this matter and requested to rectify it.
However, it appears that you have proceeded to disregard our
communication and continued to deliver, assemble, and erect the
structure on site, without a valid lease agreement.
You
are hereby informed that such action is illegal and you are requested
to cease the installation of this structure with immediate effect.
Furthermore, you are hereby informed that once the lease agreement is
signed, you are requested to shift the foundation of your structure
backward to comply with the 50 m distance requirement. Take note that
you are not allowed to erect any structure on Council land without a
valid lease agreement.
Therefore,
you are hereby served with a seven (7) working days’ notice,
with effect from the date of receipt of this letter to remove the
above-mentioned illegal structure and foundation. Failure to adhere
to this will compel the City of Windhoek to take further action
against your company.
Should
you need any clarification regarding the subject matter, kindly
contact Ms Kauautuku, Coordinator Outdoor Advertising at the
above-mentioned address.
Yours
sincerely,
MS.
Z STEENKAMP
MANAGER:
ECONOMIC DEVELOPMENT
Copy:
Corporate Legal Advisor City Police’
[10]
That being the case, the second applicant, also amended prayer 1.5 in
the notice of motion to read:
‘The
removal (instead of approval) of the Mega Billboard erected by the
fourth respondent at the intersection of Shanghai and Mungunda
Streets, Katutura Windhoek. The prayer is in accordance with the
letter above written to the fourth respondent by the first
respondent. Notice to remove the billboard concerned as well as the
foundation where it was fixed, has already been given to the fourth
respondent and the fourth respondent has not contested the notices by
the first respondent and the one brought against them by the second
applicant.
[11]
The Court will grant prayer (1.5) in its amended form for the fourth
respondent to remove the billboard in case it has not yet done so.
However, I decline to award a cost order against the first respondent
with regard prayer 1.5.
[12]
That brings me now to a brief survey of the background facts of the
matter.
[13]
In July 2012 the first respondent called for tenders to erect outdoor
advertising structures on its land of which one component of the
tender invited proposals for the erection of billboards on various
proposed sites of Council. The second applicant and other tenderers
submitted their bids for the erection of the billboards on the
proposed sites. On 21 November 2012 the first respondent awarded the
tender to Primedia Outdoor Namibia (Pty) Ltd (second respondent) to
erect billboards on erf 8085 Katutura, erf 2621 Avis and one at the
Ausspannplatz circle while erf 9129 Katutura was awarded to Media
Solutions. The second applicant was unsuccessful and was duly
informed and reasons were given to it on 19 November 2012 why its
application was not successful and accepted.
[14]
Even though the second respondent had tendered to install a
Trivision-Platform-Prime Billboard measuring 40m on a 2 meter high
stone wall on erf 8085 on which basis the tender was awarded to it,
the second respondent, however, deviated from the tender proposal and
installed a Light Emitting Diode (LED) animated billboard on the erf.
[15]
Similarly, when it was found that erf 2621 Avis, awarded to second
respondent for the erection of a billboard was not suitable for such
purpose, the first respondent granted permission to the second
respondent to erect the billboard on erf RE/6 Avis. Again the second
respondent erected a LED billboard on the site contrary to the tender
proposal which stated that a Trivision Billboard would be erected.
[16]
As already indicated, the second respondent applied for approval from
the first respondent to deviate from the tender proposals in respect
of all the billboards to be erected on the sites which were granted
to it. The request for such deviations were considered and granted
during council meetings whereby penalties were imposed as punishment
for breach of the original lease agreements.
[17]
A penalty for condonation of the deviation in respect of erf 8085 and
erf RE/6 was a 15% of the monthly fees or N$2250.00.
[18]
In addition, it was resolved by council to increase the monthly fee
for the two LED billboards to N$15 000.00 or 30% of the revenue
generated per month whichever was greater.
[19]
With regard erf 3816 following the award of tender M46/94 to the
second respondent by the Local Tender Board on 5 May 2008, an
agreement was entered into between the council and the second
respondent to lease various sites to second respondent starting from
1 January 2009 to 31 December 2014. The lease agreement in clause
15.15 provided that the second respondent had to provide advertising
exposure to council in the amount of N$250 000.00 on two prime lights
structures that were to be erected on selected first respondent’s
properties. Erf 8316 was identified as one of the sites where a prime
light should be erected.
[20]
That being so, first respondent (council) and second respondent on 25
February 2010 concluded an addendum to the 2008 lease agreement,
which addendum set out the obligations of the parties with regard
prime lights, amongst others.
[21]
As a result, therefore, a prime light was erected on erf 8316 during
2010, the same place where the LED billboard is now located. The
second respondent applied to first respondent on 16 October 2012 to
upgrade the prime light on erf 8316 to an LED billboard and was
granted the approval on 21 January 2013 following a long standing
practice.
[22]
What I have stated above is the spark which ignited this application.
These are the events which aggrieved the second applicant to initiate
the review proceedings against the respondents on the grounds set out
in the notice of motion which grounds the second applicant has
amended during the hearing of the application.
[23]
It is common facts that the first respondent put out a tender
inviting people to tender for the erection of prime light billboards
on certain pre-determined sites of which erf 8085, erf 8316, erf 2621
(Avis) formed part. It is also not in dispute that the second
applicant and respondent two to eight participated.
[24]
It is also not disputed that the second applicant was not successful
in his bid while the second and the fourth respondents were
successful and were awarded the tender to erect the prime light
billboards on the sites indicated herein.
[25]
At the hearing of the application on 22 April 2015, Mr Frank, counsel
for the second applicant argued that apart from the billboard awarded
to the fourth respondent in Katutura, all the other billboards were
awarded pursuant to tenders which called for prime light billboards.
[26]
He further argued that what were erected on the sites and the
alternative site though are LED billboards, which are billboards with
moving images, operating virtually like a cinema or like a TV screen
with moving images. He submitted that the upgrade from prime light to
LED billboards were wrongfully approved seeing that the tender was
for prime light billboards which are not moving images.
[27]
On a question from the bench to clarify what he meant by ‘approved
by the tender’, Mr Frank replied as follows:
‘It
was a tender put out by the Municipality to invite people for certain
. . . to tender in respect of certain pre-determined sites to
erect prime light billboards.’
[28]
It is thus clear from Mr Frank’s submissions above that his
client (second applicant) was not happy that the first respondent
allowed the second respondent to erect LED billboards instead of
prime light billboards which were called for in the tender
specifications. However, inspite this unhappiness the applicant did
not approach the court with a request to cancel the tender award
because, in my view, after awarding the tender to the second and
fourth respondents, the tender process stopped, and what came into
being after that, is a different relationship between the first
respondent and the successful tenderers. In this instance, a
contractual relationship between the first respondent, and the second
and fourth respondents only, which are the lease agreements, to lease
the sites.
[29]
This relationship of employer and employee between the first
respondent and the second and fourth respondents was accepted by all
other respondents including the two applicants, as they opted not to
challenge the award of the tender to the two successful respondents.
In para 49 of the main heads of argument, the second applicant
confirms and states as follows:
’49.
The applicant’s case has never been that it takes issue with
the award of those tenders. The applicant quite clearly sets out in
its notice of motion and the founding papers that the relief sought
is against the implementation of the
tender and more specifically the
unlawful decisions in respect to specific billboards on the sites
that were awarded to the second and the fourth respondents during the
tender process.’
[30]
It is apparent from the aforesaid, therefore, that the second
applicant is not happy in the manner the first respondent was
implementing the tender or how the second respondent was executing
the tender awarded to it.
[31]
The first respondent’s stance on the decision to condone the
second respondent’s deviation from its tender proposal is that
it is contractual not administrative decision – and in some
respect it was done in accordance with a long-standing practice, they
argued.
[32]
Therefore, and in view of the concession made by the second applicant
that the complaint was against the implementation of the tender, I
invited counsel to file supplementary heads of argument and address
me on the issue of legal standing of the second applicant to bring
the review application against the implementation of the tender or
against the manner how the tender was being implemented by the second
respondent, which complaint, I thought, amounted to policing the
execution of the tender proposals by the respondents or whether it is
not an issue of sour grapes on the part of the second applicant.
[33]
Be that as it may, locus
standi
was argued on 8 December 2015 whereafter judgment was reserved again.
Mr Frank persisted in his submission that, because the tender was
awarded on the basis that the billboards would be erected in terms of
the policy and regulations for which approvals to upgrade the
billboards to LED were sought and granted by the first respondent.
The approvals by first respondent to upgrade the billboards and in
one aspect, the approval to move the site, are, according to counsel,
the decisions being attacked. He argued that the application is to
review the decisions subsequent to the tenders. To support his point,
he referred the Court amongst others, to the judgment of Kleynhans
v Chairperson for the Municipality of Walvis Bay and Others[1]
where Damaseb JP said the following:
‘In
my view a person is entitled to take up the attitude that he lives in
a particular area in which the scheme provides certain amenities
which he would like to see maintained. I also consider that he may
take appropriate legal steps to ensure that nobody diminishes these
amenities unlawfully . . . In the present case the applicant is an
immediate neighbour to the property on which the non-conforming
garage was built.’
[34]
I agree with the sentiments expressed by Damaseb JP in the Kleynhans
matter above. However, I must point out
that the facts in the Kleynhans
matter are distinguishable from the facts in the instant matter. In
the matter at hand, we are dealing with two contracting parties of
which one had been permitted by the affected party to deviate from
the initial agreement against a penalty for the deviation.
[35]
One should not lose sight that in terms of the law of contracts,
there are three remedies available to an innocent party in case of a
breach of the contract by the other party. These are (a) to uphold
the contract and insists upon the agreed performance (specific
performance) or (b) to uphold the contract and accept the defective
performance or (c) to resile from the contract. But whichever course
the innocent party may decide on, that party is entitled to
compensation for any damage which he may suffered. That is trite law.
The first respondent opted for the second choice. I do not think that
the first respondent had a duty to involve the applicant in the
implementation of the tender by the second respondent.
[36]
The first respondent had an option to cancel the lease agreement
between it and the second respondent and claim damage suffered but
selected to allow the second respondent to erect something different
from what was tendered for on its sites, but against penalties.
[37]
The question arises now (i) whether the second applicant has locus
standi to bring this review application
before one could look into the issue of whether the decision taken by
the first respondent to approve the upgrading of the prime lights to
LED billboards are administrative decisions or not. If the answer to
the question is yes then a follow up question will be whether the
first respondent breached or disregarded its regulations or policy
while implementing the tender awarded to the second and fourth
respondents?
[38]
For the second applicant to have locus
standi
it must be an interested person against whom or in whose favour (in
this case) the order will operate[2].
It was submitted on behalf of the second applicant that it has
established a locus
standi
because it was one of a number of persons involved in the outdoor
advertising business. Is this not boiling down to financial or
commercial interest? I shall think so.
[39]
In Stellmacher
v Christians and Others[3]
Silungwe AJ dealt with the expression ‘interested person(s)’
and said the following:
‘Hence,
the first and fourth respondents are entitled to be heard in the
matter. In other words, they do have locus standi in this case.
The
expression ‘interested person’ judicially means someone
who has a direct and substantial interest in the subject matter and
the outcome of the litigation. The interest must be a real interest,
not merely an abstract or academic interest. A mere financial or
commercial interest will not suffice. See Family
Benefit Friendly Society case supra at
124F-J.’
[40]
The second applicant failed to persuade the court that, apart from a
mere financial or commercial interest he has in the advertising
business offered by the first respondent from time to time, he has a
direct and substantial interest in the subject matter and the outcome
of the litigation. In my view, the only litigants having a direct and
substantial or real interest in the subject matter and the outcome of
the litigation are the first and second respondents. That being the
case, I have come to the conclusion that the second applicant lacks
locus standi
to bring this review application.
[41]
Therefore, and in view of the conclusion I have arrived at, I do not
find it necessary to decide whether or not the decisions taken by the
first respondent to approve the upgrading of prime light to LED
billboards were administrative actions.
[42]
In the result and for the reasons given above, I make the following:
(i)
The second applicant lacks locus standi to bring this review
application.
(ii)
The fourth respondent must comply with the notice given to it by the
first respondent to remove the billboard with its foundation if not
done yet.
(iii)
The review application by the second applicant is dismissed and
ordered to pay costs in favour of the first respondent.
E P UNENGU
Acting
Judge
APPEARANCES
2ND
APPLICANT T Frank SC, (with him J Jones)
Instructed
by Engling, Stritter & Partners, Windhoek
1ST
RESPONDENT N Marcus
of
Nixon Marcus Public Law Office, Windhoek
2ND
RESPONDENT: C Van Zyl (watching brief)
Instructed
by Francois Erasmus & Partners, Windhoek
[1]
2011
(2) NR 437 (HC) at 447 [29].
[2]
Family
Benefit Friendly Society v Commissioner for Inland Revenue and
Another 1995 (4) SA 120T at 125.
[3]
2008
(2) NR 587 at 591B-C.
Continental Outdoor Media (Pty) Ltd v The Municipal Council for the City of Windhoek (A 421/2013) [2016] NAHCMD 44 (29 February 2016);