IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case no: 9410/2010

v

(Registration number: CK 1998/09904/07)

JUDGMENT HANDED DOWN TUESDAY, 21 DECEMBER 2010

CLEAVER J
[1] This is an application by the City of Cape Town ("the City") for the grant of an order that Bouley Properties (Pty) Ltd ("Bouley") be directed to remove outdoor advertising signage which it has unlawfully affixed to a building on its property situated at 6A Marine Drive, Paarden Island (Erf 173335) because Bouley has not obtained the approval of the City for the erection of the sign in terms of the City of Cape Town Outdoor Advertising and Signage By-Law No 10518 ("the By-Law").

[2] Bouley opposes the application on the basis that the City had available an alternative remedy to the relief which it seeks. In a counter-application Bouley seeks orders declaring the By-Law, alternatively certain sections of it, to be inconsistent with the Constitution of the Republic of South Africa 1996 ("the Constitution") and therefore invalid.

[3] In recording the history of the matter, I rely heavily on the heads of argument submitted by the City's counsel, the provenance of which I acknowledge.
•	In an exchange of correspondence between Bouley and the City from 29 July 2009 to 7 August 2009 the City repeatedly indicated to Bouley that the erection of signage on the property was not permitted without the approval of the City and that to do so would constitute a criminal offence.
•	After it became apparent during an inspection by the City on 28 April 2010 that Bouley had erected scaffolding on the building, correspondence ensued between the City and Bouley in which the City repeatedly requested undertakings that Bouley would not erect signage without approval. By letter dated 26 April 2010, Bouley informed the City that no decision had been taken by it in respect of signage on the property and that it would make an application for approval if it should decide to erect any signage. Bouley contended that the City's call for an undertaking was without foundation.

•	
In further correspondence, Bouley declined to provide a written undertaking that signage would not be erected at the property without the prior written approval of the City.
•	
•	The City responded on 16 July by advising that the application had been submitted to the City's traffic engineers and its environmental branch for assessment of the Traffic Impact Assessment and Visual Impact Assessment included in Bouley's application. Bouley was advised that the traffic engineer would require a possible two weeks to complete a comprehensive assessment of the traffic impact submitted and was told that the engineer had a number of other applications which had been submitted and which would enjoy his prior attention. In conclusion it was pointed out that in terms of By-Law 49, the City had 90 days to deliver a decision and Bouley's attention was drawn once again to the fact that a criminal offence would be committed if a sign was erected without the required written approval of the City.
•	
•	When the council received information on the afternoon of 19 July that signage was being erected on Bouley's property, an application was launched on the following day for an interdict to prevent Bouley from erecting the sign.
•	The matter was set down for hearing on 29 July 2010, but by that date, the sign had been erected.

[4] On 4 August 2010 the City served a notice on Bouley calling on it to remove the sign within 21 days as it had been erected without the written approval of the City. The notice was issued pursuant to the provisions of s 75 of the By-Law.
Sections 75 and 76 which appear under the heading of ENFORCEMENT AND REMOVAL OF SIGNS read as follows:-
'75. If any sign displayed is in contravention of this By-Law, the Municipality may serve a notice on the owner or lessee of the sign, or the land owner on whose land the sign is erected or displayed, or person whose product or services are advertised, calling upon such person to remove such sign or carry out such alternation thereto or do such work as may be specified in such request or notice, within a time frame specified therein. Notwithstanding the service of such notice, it may be withdrawn or varied by the Municipality, by agreement with the person so served, or failing such agreement, by the service of a further notice.

It is common cause that Bouley did not adhere to the instruction to remove the sign and relies on the defences raised to the application and the prayers set out in its counter-claim.

[6] It was also contended on behalf of Bouley that having resorted to the provisions of s 75 of the By-Law the City had effectively shown that an alternative remedy was available to it. Bouley's counsel submitted that the time to judge whether an alternative remedy is available is at the time of the hearing of the application and not at the time of the institution of proceedings. On that basis it was submitted that in effect the applicant was seeking to enforce two remedies simultaneously, i.e. its prayer for an interdict as initially framed and its prayer for relief following on the implementation of steps in terms of s 75.

[7] Although the City has not formally abandoned its prayer for an interdict as initially framed and has also not formally indicated that it is relying solely on its rights in terms of s 75 of the By-Law, counsel for the City submitted that in the exercise of my discretion to grant or refuse an interdict, an important fact to be borne in mind is that the situation inwhich the City finds itself has been brought about solely by Bouley's conduct. There is much to be said for this view. The City initially instituted proceedings to prevent the erection of an illegal sign because of its concerns about the activity on the site and Bouley's failure to satisfy the City that it would not erect a sign without obtaining the City's approval. That application was not entertained because of procedural difficulties. After Bouley had assured the City that it would apply for permission to erect the sign, thus giving the impression that it would secure approval for the erection of the sign before putting it up, Bouley lodged an application and requested the City to deal with it within an arbitrarily imposed period of 14 days. The justification relied upon by Bouley for its decision to erect the sign without obtaining the consent of the City, that of commercial constraints, is totally unwarranted.

[8]     The City's decision to serve a notice in terms of s 75 muddied the waters to an
extent, but this step should not in my view debar the City from obtaining relief. The City
seeks relief by means of an interdict which

although Bouley erected the sign before the application could be heard, I consider that the
issue of an alternative remedy should be decided on the papers as at the time of the

[11] I am accordingly of the view that the City has established that no satisfactory alternative remedy was available to it.

[12] Bouley's attack on the By-Law as a whole is advanced under four headings, namely:-

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.'

building	which sign refers to an activity, product, service or attraction; located, rendered
or provided on or from that Erf or those premises.'

'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:-

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.

[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.

Vagueness and Overbreadth

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.

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.'
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.

[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.'

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.

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

	

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.

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.

Deprivation of Freedom without Good Cause

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>
	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.
	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.

Attack on Specific Provisions of the Law

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.

[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:-

'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.

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:-

[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.