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City of Cape Town v Bouley Properties (Pty) Ltd (9410/2010) [2010] ZAWCHC 650 (21 December 2010)

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a) The City does not have the competence to regulate third party signage on buildings on private property and the By-Law is accordingly inconsistent with s 156(1) of the Constitution.

b) The By-Law is impermissibly vague and over-broad.

c) The By-Law contains a blanket criminalisation of all contraventions of the By-Law and is thus inconsistent with s 12 (the right not to be deprived of freedom without just cause) of the Constitution.

d) The distinctions in the By-Law between first and third party advertising are arbitrary and inconsistent with s 9(1) (the right of equality) of the Constitution.

[13] The main challenge to the unconstitutionality of the By-Law concerns the

interpretation to be placed on the term 'public places'. The power of the City to regulate

signage is derived from s 156(1)(a) of the Constitution in terms whereof a municipality has

executive authority in respect of and has the right to administer the local government

matters listed in Part B of Schedule 4 and Part B of Schedule 5. Amongst the matters

referred to in Part B of Schedule 5 is

'Billboards and the display of advertisements in public places.'

Bouley's sign is an example of 3^rd party advertising which is defined in the By-Law as:-

'...the advertising of goods or services that are not made, procured, sold or delivered from the property on which the sign and/or sign advertising of those goods or services is fixed or placed, and includes advertising which is not locality bound as well as the display of a sign which is made, procured or sold from the property but advertises goods or services which are not made, procured, sold or delivered from that property.' First party advertising is described in the By-Law as

'locality bound advertising' which means 'any sign displayed on a specific Erf, premises or

building which sign refers to an activity, product, service or attraction; located, rendered

or provided on or from that Erf or those premises.'

On behalf of Bouley it was submitted that the phrase 'advertisements in public places' does not include advertisements on private property, since the words 'in public places' can not be interpreted to mean on private property. Since the vast majority of third party signs are erected on private property which is visible to the general public, acceptance of the submissions on behalf of Bouley would result in the entire By-Law being struck down. In my view the interpretation placed on 'advertisements in public places' by Bouley's counsel cannot be correct. Both counsel referred me to different reported cases in which the meaning of 'public place' was considered, but guidance to the problem is to be found in the Sithonga⁴ judgment in which the following was said in relation to the term 'public place':

'It is a fluctuating term and it is neither possible nor desirable to define a public place so as to cover all offences or statutory provisions. The particular meaning to be attributed to the phrase is derived from the context in which it is used. The interpretative context includes the purpose the legislature intended to achieve or the mischief it intended to prevent with the particular legislation under consideration. It also includes the legislative history of the scheme and the Act and the function in the statutory scheme of the particular phrase in dispute...'

It is noteworthy that in addition to listing billboards and the display of advertisements in

public places in Part B of Schedule 5 to the Constitution, 'public places' is also listed as a

local government matter. 'Public place' is defined in the By-Law as meaning:-

'...any public road, public street, thoroughfare, bridge, subway, footway, foot pavement, footpath, sidewalk, (or similar pedestrian portion of a Road Reserve), lane, square, open space, garden, park or enclosed place vested in the Municipality, or other state authority or indicated as such on the Surveyor General's records, or utilized by the public or zoned as such in terms of the applicable zoning scheme.'

Since the City already has authority over public places in terms of Part B of Schedule 5, there would clearly be no need for it to be granted a separate authority to regulate advertisements in public places. Consequently, the meaning of the term in relation to advertising must be different from the meaning of 'public place' as generally understood and as defined. There is a further reason why the phrase should not be interpreted in the manner proposed by Bouley's counsel. Since the phrase 'in public places' qualifies the display of advertisements only and does not apply to billboards, the interpretation proposed by Bouley would result in the City having authority to regulate billboards on private property, but not signs on private property. This could clearly not have been intended. A further result of accepting Bouley's interpretation would be that the City would not have the authority to regulate outdoor advertising on property owned by the City, as the definition of 'public places' in the By-Law includes land which is vested in the City or other state authority.

[14] Inasmuch as dictionary definitions may be of assistance, the word 'public' means 'open to general observation, sight or knowledge; existing or done openly⁵, 'exposed to general view'⁶ and 'open to the knowledge or view of all'⁷.

[15] Lastly, reference may be had to the work of Professor Steytler and others who in the work compiled to assist municipal councils supply a definition of the competency bestowed on municipalities in terms of Schedule 5 B of the Constitution in respect of

billboards and the display of advertisements in public places, namely

'Display, regulation and control of billboards and the display of advertisements in public places.

Includes signs erected or situated on private property but visible from public spaces.^'8

[16] In the final analysis, regard must be had to the purpose which the drafters of the Constitution intended to achieve when construing the phrase in question. The City considers the purpose to be the prevention of visual pollution and road safety hazards presented by the distracting effect of such advertising. This view is supported by Dr Jordaan, a transportation engineer, who submitted an affidavit on behalf of Bouley. Both in the Ad Outpost⁹ and Roundabout Outdoor¹⁰ judgments, it was accepted that this is the purpose of the regulation of outdoor advertising. That these objectives would be negated if the City did not have the authority to regulate outdoor advertising displayed on private property in the view of the public is clear. The City's deponent to its founding papers indicates that without adequate supervision by the City, an uncontrolled proliferation of outdoor advertising with residual pollution and potential road safety hazards which would be to the detriment of the local community would arise.

[17] In Ad Outpost¹¹ and Roundabout Outdoor¹² it was accepted that the purpose of the regulation of outdoor advertising is to prevent visual pollution and road safety hazardspresented by the distracting effect of such advertising. These objectives would be negated if the City were to be denied the authority to regulate outdoor advertising on private property in full public view as the uncontrolled proliferation of outdoor advertising would then ensue to the detriment of the local community. Such a result would be absurd and could not have been contemplated by the drafters of the Constitution. I am therefore of the view that the phrase should not be interpreted in the manner proposed by Bouley's counsel, but must mean advertising in places which exist in open view and are visible to the public.

Vagueness and Overbreadth

[18] On behalf of Bouley it was contended that since the By-Law 'comprehensively criminalizes certain forms of constitutionally protected expression' (original emphasis), a greater level of clarity is required in respect of any limits imposed by the By-Law. It is not entirely clear what is meant by this. To start with, save for two situations¹³, the By-Law does not regulate the content of outdoor advertising. In dealing with outdoor advertising it may be useful to have regard to reported Canadian cases dealing with the issue where outdoor advertising has been held to be 'content neutral'¹⁴ and to regulate only the 'time, place and manned¹⁵ of outdoor advertising.

[19] These phrases were approved in the Roundabout Outdoor case^16;. In that case the facts were similar to the facts before me in that the municipal authority sought an order directing parties who had been responsible for erecting advertising signage on private property without the prior consent of the municipal authority to remove the sign. One of the grounds on which the application was resisted was the contention that the By-Law constituted a contravention of the right to the freedom of expression. The court explained, as had been done in Ad Outpost, that outdoor advertising concerns 'commercial expression' and that most commercial speech in South Africa is regarded as being of peripheral value.¹⁷ In support of this view, the following extract from Chaskalson et al Constitutional Law of South Africa was cited.

'Commercial expression has been defined as speech which proposes a financial transaction. This area of expression relates primarily to commercial advertising of goods or services for profit, but is wide enough to include expression in the context of unlawful competition, including disparagement and economic trade boycotts. Most, but not all, commercial expression is at some remove from the core of freedom of expression and is best located within the protected periphery of the guarantee. In America a reduced level of Constitutional protection is extended to commercial expression. The test for valid statutory regulation of commercial advertising is set out in Central Hudson Gas v Public Services Commission.'¹⁸

After referring to the United States and certain United States authorities, the court concluded 'It is therefore apparent that the value which is to be attached to the form of speech that is restricted plays an important role in the recognition which is afforded to the particular type of speech. And further the value which society places on the particular form of speech is a factor of substantial importance in determining whether the right has been infringed. Furthermore, as it has been shown hereinbefore, commercial speech isconsidered to be entitled to lesser protection than that accorded to other constitutional guaranteed forms of expression.^,19

The court also concluded that the By-Law attack did not seek to regulate the nature of the information sought to be imparted, but only the location of the billboards. In coming to its final conclusion that the applicant was entitled to the order sought, the court in fact had regard to the provisions of s 36 of the Constitution for it concluded that the limitation of the respondent's rights in terms of s 16(1)(o) of the Constitution (the freedom to receive or impart information or ideas) was reasonable and justifiable in an open and democratic society.

[20] In this division a different view was expressed as to the value to be attached to commercial speech in Ad Outpost where the following was said:-

The tendency to conclude uncritically that commercial expression bears less constitutional recognition than political or artistic speech needs to be evaluated carefully. So much speech is by its very nature directed towards persuading the listener to act in a particular manner that artificially created divisions between the value of different forms of speech requires critical scrutiny. Whatever the role of such speech within a deliberative democracy envisaged by our Constitution, it is clear that advertising falls within the nature of expression and hence stands to be protected in terms ofs 16(1) of the Constitution. To the extent that its value may count for less than other forms of expressions, account of this exercise in valuation can only be taken at the limitation enquiry as envisaged in s 36 of the Constitution.'²⁰

In my view it is clear that the By-Law does not limit the right to freedom of expression in s 16 of the Constitution, but in any event, should I be wrong in that regard, I am satisfied that such limitation is reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.

[21] When considering the attack on the alleged overbreadth of the By-Law, the approach to interpretation when the constitutionality of legislation is challenged in Hyundai Motor Distributors applies.

'The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.'²¹

This approach was confirmed by the Constitutional Court in Bertie van Zyl wherein it was held that when the constitutionality of legislation is challenged a court must first determine 'whether, through "the application of all legitimate interpretive aids", the impugned legislation is capable of being read in a manner that is constitutionally compliant'²² and wherein the court once more confirmed that a purposive approach to statutory interpretation is required.

As to the test for vagueness, it was explained in Affordable Medicines that although the law requires that laws be written in a clear and accessible manner, what is required is reasonable certainty and not perfect lucidity²³ and that where it is contended that the regulation under consideration is vague for uncertainty, a court should first construe the regulation by applying the normal rules of construction by including those required by constitutional adjudication and then establish whether so construed the regulation indicates with reasonable certainty to those who are bound by it what is required by them.²⁴

[22] The key proscription in the By-Law challenged which is said to be vague and overbroad is that in s 1 which provides

'Other than those signs referred to in Section 55 to 62 hereinbelow, no person shall display any advertisement or erect or use any sign or advertising structure for advertising purposes without the Municipality's approval in terms of this By-Law and any other applicable legislation.'

All the terms contained in this section are defined in Part A of the By-Law which contains definitions. The following definitions are relevant-

' "Sign" means any object, product, replica, advertising structure, mural device or board which is used to publicly display a sign or which is in itself a sign; and includes a poster and a billboard.'

' "Advertisement" means any representation of a word, name, letter, figure or object or an abbreviation of a word or name, or any symbol; or any light which is not intended solely for illumination or as a warning against any dangers and "advertising" has a similar meaning.' ' "Advertising structure" means any physical structure built or capable of being used to

display a sign.'

On behalf of Bouley it was submitted that the supposed qualifier 'for advertising purposes' does not limit the scope of the broadly formulated limitation on freedom of expression because in terms of s 1, the term 'advertising' has the same wide definition as the term 'advertisement'. I am not sure what to make of this submission since in my view it seems clear that what is proscribed is either the display of an advertisement (which is defined) or the erection or use of any sign or advertising structure for advertising purposes. Other contentions on behalf of Bouley are:-

1) That the definition of the sign is circuitous since it is defined to mean inter alia, any object used to display a sign or which is itself a sign. Therefore a sign is defined to mean any object; and

2) That the By-Law contains a criminal proscription of the display of any word, any object or any physical structure capable of being used to display an object.

In respect of these examples, it is also contended that the phrase for advertising purposes' does not limit the scope of the By-Law and that accordingly the proscription is vague and overbroad. It is also submitted that this is aggravated since other sections do not deal consistently with 'advertisements, signs and advertising structures'. So,

65535. Section 2(1) refers only to a sign in respect of the information required for applications submitted.

Section 10 refers to a 'sign' and an 'advertisement' in respect of the factors to be considered in assessing applications.

65535. Section 44 refers to a 'sign'when dealing with the approval of applications.

65536. Section 45 refers to both a 'sign' and an 'advertising structure' in relation to the withdrawal of an application.

[23] In dealing with the issue of vagueness, it has been held that the doctrine of vagueness does not require absolute certainty of law, but that the law must indicate with reasonable certainty to those who are bound by it and what is required of them so that they may regulate their conduct accordingly.²⁵ After recording the need for intelligible criminal prohibitions so that both citizens and law enforcement officers can identify with reasonable certainty what conduct is prohibited, O'Regan J in her minority judgment in Bertie van Zyi said the following:

'Of course "(w)hat is required is reasonable certainty and not perfect lucidity". Language is often imprecise and in many cases it will not be possible to draw with complete certainty the boundaries of a legislative prohibition. Setting the test as one of "reasonable certainty" accepts that some imprecision is unavoidable. It recognises that in most criminal provisions there will be a core of certainty about the meaning of a provision, and a limited penumbral sphere of uncertainty. Where the penumbral sphere of uncertainty is limited, it will not fall foul of the constitutional standard. However, where a provision has no certain core meaning at all, or where it has a significant penumbral scope of uncertainty, it will probably be constitutionally impermissible .... The key questions to determine vagueness will be whether the provision provides "fair warning" to citizens of what constitutes unlawful behaviour and whether it impermissibly delegates the power to determine whom should be prosecuted to law enforcement officers with the attendant risks of arbitrary application.^,26

To start with, I am of the view that the core meaning of the By-Law is clear and that it

provides fair warning to all citizens of what will constitute unlawful behaviour, namely that

the display of an advertisement or the erection or use of a sign or structure for advertising

purposes without the municipality's prior approval is prohibited.

[24] While broad definitions are provided for the terms 'sign', 'advertisement', 'advertising' and 'advertising structure', these definitions are not in my view inappropriate since the City records that it needs to be able to regulate all outdoor advertising, including new forms of advertising which may arise. The fact that there is no reference to outdoor advertising in the definition does not mean that someone wishing to erect a sign or an advertisement will be in any doubt as to the fact that he or she may not do so without the permission of the City. I do not agree with the submission that the definition of a sign is circuitous. While their may be some overlapping in the definition, the words 'or which is in itself a sign⁵, do not result in the definition being vague in the sense advanced by Bouley. As counsel for the City pointed out, in order to avoid absurdity, all that needs to be done is to apply the normal meaning or the dictionary definition of the word 'sign' when it appears in the body of the By-Law's definition. I am accordingly of the view that on a proper purposive interpretation and in the context of the text as a whole, the By-Law is not impermissibly vague or overbroad.

[25] Bouley contends that the signage By-Law is so vague that it is open to manipulation and allows the City to achieve any result it desires. Its deponent alleges that there are 'many instances of practical difficulties with the application of the By-Law' and points to nine instances which he contends to evidence uncertainty by the City in the use of its discretionary power regarding the application of the By-Law. In my view it is not necessary to deal with the various instances relied on which Bouley's deponent says he gleaned from information supplied to him by other parties. To start with, the specific matters referred to surface for the first time in Bouley's replying affidavit in the counter-application and do not form part of the counter-application itself. Secondly, all the allegations are denied in a supplementary affidavit filed on behalf of the City on whose behalf it is contended that the alleged difficulties are all of a minor nature and were to be expected with regard to the practical implication of legislative provisions. As to the contention that the administrative decision making is not sufficiently guided, the fact is that the By-Law contains extensive provisions in respect of the factors which are to be taken into account when an application for the approval of signage is considered. Section C of the By-Law which bears the heading 'Charges and General Factors in Considering

Approval and / or Amendments/Conditions to Approval' gives clear guidance as to the factors which the City must have regard to when considering applications and s D details factors relating to specific signs, areas of control and commercial sponsored signs. Section E contains the standard conditions for approval. There is accordingly in my view no merit in this attack.

[26] Bouley's counsel did not pursue the initial objection to the effect that since the By-Law does not indicate which one of the English, Afrikaans or Xhosa texts is to prevail in the case of a conflict between them, a fatal oversight results and also that the isiXhosa version is incomprehensible. As explained in the Drop-Inn Group case where one meaning clearly does accurately express the intention of the law giver, that version is plainly the version which must be adopted.²⁷ Should there be an incomprehensible version in the isiXhosa version, the court will apply the English version of the text.

Deprivation of Freedom without Good Cause

[27] This objection concerns s 68 (1) of the By-Law which provides that any person who contravenes or fails to comply with any provision of the By-Law shall be guilty of an offence and on conviction shall be liable to a fine or imprisonment as set out in the By-Law. The submission on behalf of Bouley is that, properly interpreted, imprisonment may follow a failure to comply with a minor procedural requirement of the By-Law such as a failure to submit the information required for an application in duplicate. A similar provision is to be found in the North West Gambling Act No 2 of 2001. Section 82(1 )(i) of that act provides that a person who 'contravenes or fails to comply with any provision of this Act orany provision made under Section 84 .... is guilty of an offence and on conviction .... liable to a fine or to be imprisoned for a period not exceeding ten years or to both a fine and such imprisonment'. In Magajane v Chairperson, North West Gambling Board and Others²⁸ the Constitutional Court recorded with apparent approval the applicant's acknowledgement that the section could be read so as not to create an offence for the failure to answer questions. This judgment was cited by the City's counsel as support for his submission that it is only a contravention of or a failure to comply with those sections of the By-Law which concern the activities prohibited by the By-Law, such as s 1 thereof which constitute an offence. In the heads of argument submitted by the City's counsel, it is recorded that a search of the phrase 'any person who contravenes or fails to comply with any provision of this Act' in 'South African Statutes' on Jutastat produced 33 positive results in support of his submission that many laws contained a provision similar to that under attack. Since imprisonment can only follow on a trial the submission that the By-Law is invalid because is deprives offenders of freedom without good cause cannot be sustained. This is confirmed by Currie and De Waal.²⁹

In my view, the criminal sanctions for contraventions of sections of the By-Law providing for prohibited activities are essential for the enforcement of the By-Law and a legitimate means of enforcement.

Differentiation between First and Third Party Advertising

[28] Bouley's counsel cited a number of examples in the Signage By-Law which differentiate between first and third party advertisements and submitted that since the deferential treatment permeates the entire By-Law, the By-Law should be struck down as a whole. I do not consider it necessary to deal with the various examples of differential treatment which have been identified, for in my view the City has given a satisfactory explanation as to the need to differentiate between the two forms of advertising. Briefly stated these are>

65535. It would be a more extensive limitation of rights to restrict a person from advertising his or her own product, service or business on that person's property than it would be to restrict a person from advertising a third party's product, service or business on his or her property.

First party advertising fulfils a useful and necessary community information function as source of the advertisement is immediately identified by its location.

The need to regulate outdoor advertising in Cape Town is important because of its natural beauty and cultural historical significance.

In the need to curb the total amount of visual 'clutter' more limits are imposed on third party signage as this makes a greater contribution to visual pollution due to the size and scale of the advertising, that it is located in the most visible locations and because of the greater incidence of illumination on such signs.

65535. Traffic safety concerns justify stricter controls on third party signs.

[29] Other distinctions which have a particular rational and legitimate purpose are said to include:-

• Only third party advertising is subject to a limited period of approval (five years), whereas approval for first party advertising is limited only when the business on a particular property changes. The limitation in the time period allowed for third partysignage enables the City to reassess the continued appropriateness of a sign in the light of a possible change in circumstances.

Only third party signs are subject to linear spacing requirements from other road signs or from signs larger than a certain area. First party signs are exempted from these requirements so as to allow owners to advertise their businesses wherever their businesses are located.

[30] In Ad Outpost³⁰, this court found that there is a rational distinction between third party and own party advertising. That finding was made pursuant to a challenge based on s 9 (1) of the Constitution (the Equality Clause). That decision is binding on me and it has not been suggested that it is clearly wrong.

Attack on Specific Provisions of the Law

[31] When dealing with these attacks, it is necessary to have regard to important principles which apply to constitutional challenges, namely that a consideration of constitutional issues in vacuo is typically entrusted to the legislature and that such issues are best decided in the context of a live controversy.³¹

Bouley contends that ss 75 -79 are inconsistent with PAJA and s 33 of the Constitution. Sections 75 and 76 are quoted in para [4]. Section 77 provides for compensation to be paid to any person for unreasonable loss or damage caused by the removal or alteration of a sign by the City. Any costs incurred by the City in removing signs or in doing alterations or other works required in terms of a notice may be recovered from the person on whom the notice was served in terms of s 78. Section 79 makes provision for the Cityto remove a sign without the need of a court order in circumstances where the sign is reasonably considered to be a danger to life or property.

[32] Bouley's challenge is to the effect that s 75 (which is recorded in full in para 4) makes no provision for a hearing after the notice has been served but before any steps are taken. This was the stance initially adopted by Bouley, but in reply it appears to contend that such a party must be given a hearing before the notice is issued. In my view the notice is not hit by s 33 of the Constitution which affords everyone the right to administrative action that is lawful, reasonable and procedurally fair; nor is PAJA applicable. Administrative action in terms of s 1 of PAJA applies to the exercise of a public power or the performing of a public function in terms of legislation by an organ of state which adversely affects the rights of any person and which has a direct, external legal effect. The notice does not affect the rights of a person who has erected signage unlawfully. It also does not have any direct legal effect. The notice also does not have any direct legal effect for it does not require finality in the determination of rights. De Ville ³² explains that decisions which have an effect on an individual's rights would normally exclude notifications and that 'direct effect' would require finality in the determination of rights 'which would exclude preliminary steps in multi-staged decisions'. It has also been held that the decision to recommend the prosecution of a person or a decision to sue does not prejudicially impact on a person's right.³³

[33] The submission by the City's counsel that a person receiving a notice could, if he or she wished, make representations to the City, is not in my view a submission that a right to a hearing after receipt of the notice should be read into the By-Law as Bouley's counsel would have it. The By-Law does not prohibit anyone from making representations and since it provides that a notice may be withdrawn or varied by the City, by agreement with the person served, an interaction with the person served is implied. For the reasons I have given I am of the view that neither PAJA nor the constitutional right to administrative justice affords a party who has received the notice the right to a hearing. As to the institution of criminal proceedings, s 1(b)(ff) of PAJA provides that a decision to institute a prosecution is not administrative action.

[34] Three other sections are challenged on the basis that they are inconsistent with the provisions of the Constitution. These are:-

1) Section 67 which provides that

'The Municipality shall be entitled, through its duly authorized officers, and following prior written notification to the owner or occupant of a property, to enter into and upon any premises, at a reasonable time for the purpose of carrying out any inspection necessary for the proper administration and enforcement of the provisions of this By-Law.

2) Section 74 provides for three presumptions in respect of persons charged with an

offence under the By-Law. These are

2.1) A presumption that a person who organised or controlled an event knowingly displayed (or caused or allowed to be displayed) unlawful signs or posters in connection with the event.

2.2.) A presumption that a person whose name appears on or whose product or services are advertised on an unlawful sign knowingly displayed (or caused or allowed to be displayed) such sign.

2.3.) A presumption that an owner of land or a building upon which an unlawful sign was knowingly displayed (or caused or allowed to be displayed) such sign.

Bouley contends that this section violates the presumption of innocence contained in s 35 (3) (h) of the Constitution.

3) Finally, Bouley contends that the fines provided for in s 71 of the By-Law extend the criminal jurisdiction of the magistrates' court impermissibly and that s 81 of the By-Law which reads:-

'Notwithstanding anything to the contrary contained in any law relating to Magistrates' Courts, a Magistrate shall have jurisdiction, on the application of any Local Authority, to make an Order for the enforcement of any of the provisions of this By-Law or of any approval, refusal or condition granted or applicable in terms thereof.' is therefore invalid.

[35] None of these challenges is in respect of a live issue before the court and the court is being asked to decide on the constitutionality of the provisions in vacuo. I am accordingly of the view that it would not be proper to embark on the further enquiries which Bouley proposes. Insofar as the reference to s 81 of the By-Law is concerned, I should however record that the City has conceded that the phrase 'notwithstanding anything to the contrary contained in any law relating to the Magistrates' Court' does impermissibly seek to extend the criminal jurisdiction of the magistrates' court.

[36] The requirements for the final interdictory relief which is sought are well-known. They are that the applicant must establish a clear right, that an actual injury has been committed or is reasonably apprehended and that there is no other satisfactory remedy available to it. As indicated, the only submissions for Bouley in this regard related to the availability of an alternative remedy in respect of which I have found for the City. I am also satisfied that the City established the other requirements. The clear right flows from the City's statutory obligations to enforce the By-Law and its right to apply for an interdict for such purpose was recognised in Huisamen and Others v Port Elizabeth Municipality.³⁴ Unlawful conduct is an injury of the right of the City which is charged with enforcing the proscribed conduct.

[37] While my discretion is more limited when deciding whether or not to grant final relief, Bouley's conduct must weigh heavily against it for it chose to erect the sign well knowing that the City's permission for such erection had not been obtained.

[38] I have indicated that in my view the application is to be decided on the situation which pertained when the papers were served on Bouley. On this basis the City would be entitled to an order in terms of prayer 3 of the notice of motion, namely that Bouley be directed to remove the signage. Since the machinery of s 75 of the By-Law has in effect been employed, the City would be entitled in terms of s 76 to remove the sign. I do not think it is of great importance as to who should remove the sign, but it may be more suitable for Bouley to do so. I accordingly propose to merge the two orders which might have been made so as to provide that the City may remove the sign if Bouley does not do so within a stated time.

[39] The following orders will issue:-

1. The application succeeds and the respondent is directed to remove the unlawful signage erected or affixed to its property at Erf 173335 Paarden Eiland in contravention of the City of Cape Town's Outdoor Advertising and Signage By-Law 2001 within 14 (fourteen) days from the date of this order, failing which the City of Cape Town may effect such removal.

2. The respondent is to pay the applicant's costs.

3. The respondent's counter-application is dismissed with costs.

The costs referred to in 2) and 3) above include the costs of two (2) counsel.

R B CLEAVER

1City of Cape Town v Dormell Properties 142 (Pty) Ltd and Others case no 18167/2008, judgment dated 13 November 2008.

2Joubert (ed) The Law of South Africa (2 ed) vol 11. Interdicts (LTC Harms) para 390.

31998 (1)SA 477 (ECD).

4Sithonga v Minister of Safety and Security and Others 2008 (1) SACR 376 (TK) at para 15.

5Shorter Oxford Dictionary 5 ed (2002).

6Free Merriam-Webster Dictionary www.merriam-webster.com/dictionarywww.merriam-webster.com/dictionary ,

7Webster's Online Dictionary www.websters-online-dictionary.orgwww.websters-online-dictionary.org .

8Making Law a Guide to Municipal Councils Prof Nico Steytler, Jaap de Visser, Johann Mettler, a publication of The Community Law Centre, University of the Western Cape.

9City of Cape Town v Ad Outpost (Pty) Ltd and Others 2000 (2) SA 733 (C).

10North Central Local Council and South Central Local Council v Roundabout Outdoor (Pty) Ltd and
Others 2002 (2) SA 625(D).

11City of Cape Town v Ad Outpost (Pty) Ltd and Others (supra).

12North Central Local Council and South Central Local Council v Roundabout Outdoor (Pty) Ltd and
Others (supra)

13The only limit placed on the City to control the content of a sign is that to be found in s 10(8)(2) which provides that 'no sign or advertisement may be designed or displayed that will display any material or graphic which, whether in form, content or both, may reasonably be expected to cause offence to the public or to an identifiable class of persons'.

14Vancouver (City) v Jaminer 2001 BCCA 240 (CanLII), relying on Committee for the Commonwealth of
Canada v Canada 1991 CanLI1119 (SCC).

15Peterborough (City) v Ramsden 1993 CanLII 60 (SCC).

16North Central Local Council and South Central Local Council v Roundabout Outdoor (Pty) Ltd and Others (supra).

17City of Cape Town v Ad Outpost (Pty) Ltd and Others (supra).

18North Central Local Council and South Central Local Council v Roundabout Outdoor (Pty) Ltd and Others 2002 (2) SA 625 at D-F (Constitutional Law of South Africa at 20-50 - 20-51).

19At 635B-C.

20City of Cape Town v AD Outpost (Pty) Ltd and Others (supra) at p 749D-F.

21Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty)
Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1)
SA 545 (CC) at para 22.

22Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181

23Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA 247 (CC) at para 108

24Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA 247 (CC) at para 109.

25Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA 247 (CC) at para 108.

26Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) at para 103.

27Drop-Inn Group of Liquor Supermarkets (Pty) Ltd v Chairman, Liquor Board andAno 1986 (4) SA 1042 (C) at1046C-F.

28 2006 (5) SA 251 (CC).

29The Bill of Rights Hand Book lain Currie and Johan de Waal 5^th ed (2005) p301.

30City of Cape Town v Ad Outpost (Pty) Ltd and Others (supra) at 744A-F.

31Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others 2009 (4) SA 222 (CC) at paras 221 and 222.

32J. de Ville Judicial Review of Administrative Action in South Africa revised 1^st ed (2005) at p 54. See also Registrar of Banks v Regal Treasury Private Bank Ltd (under curatorship) and Another (Regal Treasury Bank Holdings Ltd intervening) 2004 (3) SA 560 (W) at 567G-H.

33Park-Ross v Director: Office for Serious Economic Offences 1998 (1) SA 108 (C) at para 15.

Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd 2001 (4) SA 661 (W) at para 14.

34(supra) at 483I-484B.