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City of Cape Town v Independent Outdoor Media (Pty) Ltd and Others (9346/2009) [2011] ZAWCHC 489 (23 December 2011)

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JUDGMENT DELIVERED ON FRIDAY, 23 DECEMBER 2011

Louw J

[1] In this matter there is a main application brought by the City of Cape Town ('the City'), a Metropolitan Municipality, against the First Respondent, Independent Outdoor Media (Pty) Ltd (IOM) and the other ten Respondents for the removal of certain outdoor advertising signs.

[2] IOM is a signage company. It owns large illuminated signs which it erects on the sides of buildings and on specialised structures adjacent to major roads and intersections in Cape Town on properties that are owned by other entities, in this case, the Second to Eleventh Respondents. IOM lets out the signs from time to time, to different advertisers.

[3] The City contends that the erection, display and use of the signs are unlawful because IOM who owns the signs and the other Respondents, being the owners of the land on which the signs have been erected, have failed to obtain the necessary approvals for the erection, display and use of the signs, inter alia approval in terms of the City's Outdoor Advertising and Signage By-law, No. 10518 of 5 December 2001, ('the By-law'), Section 1 of which provides that: 'no person shall display any advertisement or erect or use any sign or advertising structure for advertising purposes without the [City's] approval in terms of the By-law and other applicable legislation.'

[4] The affected signs are the following:

1. Sign 2 is fixed to a building on land owned by the Second and Eleventh Respondents on the corner of Somerset Road and Chiappini Street, Green Point. It has been there since November 1999 and has over the years displayed a number of successive commercial advertisements. An application for approval submitted under the old City By-law of 1966, was not approved and despite numerous letters from the City and notices to remove under the old and the new By-law, the sign has remained in place.

2. Sign 3 is fixed to the balcony of a building in Buitengracht Street owned by the Third Respondent. It has been there since November 1999 and has over the years displayed a number of successive commercial advertisements the last of which appeared shortly before the hearing of the application. An application for approval brought in October 1999 was not approved and despite a number of notices under the old and current By-law to remove the sign, it has remained in place.

3. Sign 4 is fixed to a building on land owned by the Fourth Respondent situate in Meadow Road, Rosebank. It has been there since 1999 and has over the years carried various commercial advertisements. An application for approval under the old By-law was not approved. Despite letters from the City and removal notices under the current By-law, it has remained in place.

4. Sign 5 is mounted on the roof of a building on land owned by the Fifth Respondent in Chapel Street, Woodstock where it is visible from the N2. It has been there since 1998 and over the years successive commercial advertisement were displayed. An application for approval under the old By-law in 1998 was refused. IOM acquired the sign by no later than 30 March 1999 and a further application for approval brought by IOM in July 1999, was not granted. Despite removal notices under the old and under the current By-law, the sign has remained in place. IOM has attempted to make some point that the City waived or is estopped from relying on the non-approval because of an alleged informal assurance given at a meeting with City officials (Robinson and Townsend) on 31 March 1999 that approval would be granted, provided that the sign be lowered below the roofline of Fifth Respondent's building. The City disputes that an assurance was given. Suffice to say, however, that the facts do not support the reliance on estoppel or waiver and that IOM's renewed application in July 1999 was refused in October 1999. The latter decision was never challenged and it cannot now after more than ten years be challenged collaterally in these proceedings.

5. Sign 6 is fixed to a building in Kloofnek Road, Tamboerskloof owned by the Sixth Respondent. It has been there since February 2006 and has over the years carried successive commercial advertisements. An application for approval in July 2006 under the current By-law was refused and despite removal notices, has remained in place.

6. Sign 7 is a billboard which was erected on the Seventh Respondent's property in Madrid Road, Airport Industria. It has been there since June 2007 and has over the years carried successive commercial advertisements. An application for approval brought in October 2007 was not approved and despite a notice of removal, it has remained in place.

7. Sign 8 is affixed to a building on land owned by the Eighth Respondent in Bree Street, Cape Town. It has been there since 2002 and over the years it has carried a number of successive commercial advertisements. No application for approval has been made and despite removal notices, it has remained in place.

8. Sign 9 is fixed to a building on land owned by the Ninth Respondent in Victoria Road, Woodstock. It has been there since April 2003 and it has over the years displayed various commercial advertisements. At the time of the hearing of the application the sign was bearing community educational information which the preamble to the By-law exempts. However, no undertaking was given by IOM that it will not again, as in the past, be used for commercial advertisement. No application has been made for approval and despite removal notices, it has remained in place.

9. Sign 10 was fixed to a building in Nicol Street, Gardens. It was erected in September 2002 and has over the years carried successive commercial advertisements. The application for approval made in February 2002, was refused and it remained in place despite removal notices until it was removed on 3 March 2011, shortly before the hearing of this application and the City no longer seeks substantive relief in regard thereto. The City nevertheless seeks a costs order against the Tenth Respondent.

[5] The City seeks orders declaring that all of the signs in question contravene the By-law, that all of the signs also contravene the National Building Regulations and Buildings Standards Act, No. 103 of 1977 ('the Building Act') and that some of the signs also contravene 'other applicable legislation' namely, the Zoning Scheme Regulations for the City of Cape Town ('the Scheme regulations') promulgated in terms of s9 (2) of the Cape Land Use Planning Ordinance 15 of 1985 (LUPO), the Municipal Ordinance No. 20 of 1974, ('the Municipal Ordinance'), the Roads Ordinance, No. 19 of 1976 and also that some of the signs, by virtue of their alleged encroachment over property owned by the City, contravene the common law rule against lateral encroachment.

[6] In addition to and pursuant to the orders declaring the signs to be in contravention of the aforesaid laws and the common law, the City seeks orders in the form of mandatory interdicts directing the Respondents to remove the signs in question.

[7] It is not contended by the Respondents that they have obtained the approvals the City contends are necessary under the various pieces of legislation. In broad outline, the defences raised include that the By-law is not applicable to the signs in question because they have been erected on private property, that the applicable provisions of the By-law are unconstitutional and that these provisions, or the whole of the By-law, should be struck down, that the other legislative measures relied upon do not apply, that the contraventions of some of the measures and of the common law rule against encroachment, are de minimis and that, in any event, the requirements for a mandatory interdict have not been met.

THE BY-LAW

[8] Relevant to these proceedings is the fact that the By-law distinguishes between two categories of advertising. First party advertising, called locality bound advertising, i.e. advertising which consists of signage displayed on a property and where the signage refers to 'an activity, product, service or the attraction; located, rendered or provided on or from' the property concerned on the one hand and third party advertising which is defined as 'the advertising of goods and services that are not made, procured, sold or delivered from the property on which the sign is fixed or placed'.

[9] IOM accepts that the necessary approvals were not obtained, but has filed a counter-application for orders, inter alia declaring that the By-law is inconsistent with the Constitution of the Republic of South Africa, 108 of 1996, principally because, it is contended, the By-law 'imposes conditions, burdens, restrictions and/or requirements upon "third party" signs that are more onerous than those imposed upon "first party" signs. In the supporting papers the grounds of attack were considerably expanded upon.

[10] The relevant recent history of the City's by-laws regarding outdoor signage is briefly as follows:

1. Section 6 of the City's old by-law, No. 1959 of 1966, was interpreted to contain a blanket ban on third party advertising which was found to be overbroad and to be inconsistent with the Constitutional protection of free speech and was struck down by this Court and was declared invalid on 10 October 1999 in City of Cape Town v Ad Outpost (Pty) Ltd and Others 2000 (2) SA 733 (C) but the declaration of invalidity was suspended for a period of 6 months until 1 April 2000 to enable the City to correct the defects therein relating to the regulation of third party advertising.

2. This led to the adoption by the City of an interim advertising by-law of 27 April 2000.

3. The interim measure was superceded by the current By-law which was promulgated on 5 December 2001 and which repealed the interim measure.

[11] The By-law was adopted by the City pursuant to its powers under Section 156 (1) (a) of the Constitution which determines that a municipality has executive authority in respect of and has the right to administer the local government matters listed in Part B of Schedule 5 of the Constitution. Section 156 (2) of the Constitution provides that a municipality may make and administer by-laws for the effective administration of the matters which it has the right to administer. Part B of Schedule 5 lists the local government matters in question. The operative one in this case is 'Billboards and the display of advertisements in public places'.

[12] Section 1 of the By-law provides that:

'no person shall display any advertisement or erect or use any sign or advertising structure for advertising purposes without the [City's] approval in terms of the By-law and other applicable legislation.'

[13] Exceptions are mentioned in Section 1. These exceptions for which approval does not have to be sought, it is common cause, do not apply to any of the signs in this case.

[14] There is a dispute raised by a bald denial on the papers by the Respondents on the question whether the signs in question fall within the definitions of 'sign' and 'advertising structure'. I agree with the submissions of Mr. Breitenbach who appeared with Mr. Pascke and Ms van Huyssteen on behalf of the City that this is not a real or bona fide dispute.

[15] Since there has been no proper approval under the By-law for the display, erection or use of any of the signs in terms of the By-law, the signs contravene the By-law and if the By-law is not found to be unconstitutional, the signs are not only unlawful but their display, erection or use constitute a criminal offences in terms of Section 68.1 of the By-law.

THE BUILDING ACT

[16] The City contends that all the signs fall within the definition of 'building' in the Building Act, namely, '(a) any other structure whether of a temporary or permanent nature and irrespective of the materials used in the erection thereof, erected or used for or in connection ...(ii) the ...display or sale of any goods; (or with) ...(iii) the rendering of any service'. The contention is disputed on the papers and it is contended by the Respondents that a sign can never be regarded as a 'building'. The signs in this case in my view, all clearly fall within the definition of 'building'. The City has shown in evidence that there are many instances where, according to its records, building plan approval in terms of the Building Act was required and has been given, for outdoor advertising signs, including two cases where IOM has itself made such applications.

[17] I agree with Mr Breitenbach's submissions that the connection between a sign erected and used to advertise goods or services to the public is sufficiently close for it to be said that such sign is 'erected or used for or in connection with the display or sale of the goods or the rendering of any service', within the extended definition of 'building' in the Building Act.

[18] Further, I agree with the submission that including advertising signs within the definition of 'building' is consistent with the purposes of the Building Act which includes the regulation of the appearance of a building. This is evident from the provisions of Section 7 (1) (b) (ii) which provides that a local authority must refuse an application for building plan approval if it is satisfied that the proposed 'building':

'(aa) is to be erected in such manner or will be of such nature or appearance that-

(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb) it will probably or in fact be unsightly or objectionable;

(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;

(bb) will probably or in fact be dangerous to life or property...'

[19] The City's expert evidence (Ms de Villiers) demonstrates that advertising signs that have been erected have an appearance and do have at least the potential to disfigure an area, be unsightly or objectionable and may derogate from the value of adjoining or neighbouring properties. In addition, the evidence on behalf of the City that regulation is necessary because there is a danger of insecure signage structures, some of which are of extensive proportions, collapsing or blowing over from the tops or sides of tall structures in densely populated areas onto sidewalks and areas frequented by the public. This, the uncontested evidence is, shows that the City has a legitimate, substantial and pressing purpose of promoting public safety and welfare by ensuring that outdoor signs comply with applicable building regulations. The evidence of Mr Moir on behalf of the City is that some of the signs in question are large, free standing billboards with their own foundations or very large signs which are not 'minor building works' which may qualify for exemption in terms of Section 13 of the Building Act. Such signs need approval in terms of Section 7 of the Act. Smaller signs may qualify for Section 13 exemption.

[20] The signs therefore require either prior approval or an exemption under the Building Act. It is common cause that no prior approval in writing was given by the City under s7 read with s4 of the Building Act for the erection of the signs and that there has been no exemptions under si3 from the obligation to submit a plan for approval and no authorisation under that section for the erection of the signs.

[21] Sections 2.2 and 12 of the By-law in terms require compliance with the relevant provision of the Building Act in relation to signs and the City is entitled to rely on the absence of compliance with the provisions of the Building Act.

THE ZONING SCHEM

[22] It is common cause that the City has not given permission under the zoning scheme for the display of sign 4 on the Fourth Respondent's property. This property is zoned general residential R4 and such zoning does not allow the display of sign 4 which is from time to time used for commercial advertising including the advertising of IOM's own service as an outdoor advertising concern who derives rental income from the sign as part of its business.

ENCROACHMENT UNDER THE COMMON LAW

[23] The City contends that signs 2, 3, and 4 encroach upon public streets and sidewalks, that is, upon property owned by the City and that sign 9 encroaches upon a vacant public open space owned by the City. The evidence of the land surveyor Steven Old who measured the positions of these signs and whose evidence is not disputed by the Respondents' land surveyor Justin Hill, is that the signs do in fact encroach on the City's property. It is common cause that the Respondents in question failed to obtain permission for the projection of the signs over City owned land under Section 126 (1) (a) of the Municipal Ordinance for the erection of any sign 'which projects or extends into or over any public place or public street'. The Respondents contend however, that the encroachments are in each case de minimis. I do not agree. The whole of the signs in question encroach over and onto the City's land and they are all designed to be and are all highly visible structures. In addition, these signs have lights overhanging, and in one case (sign 3) mounted below, to light up the signs. These lights project further than the signs themselves. The encroachment is therefore not trifling and cannot be regarded as de minimis. The Respondents' contention that there are numerous other signs that similarly encroach upon City owned land does not assist them. The evidence is that every one of the other signs referred to by the Respondents are signs that were approved by the City.

THE ROAD ORDINANCE

[24] The evidence of Mr Old on behalf of the City is that signs 4 and 9 fall within 5 metres of the statutory width of public main roads. The City contend that these signs are 'structures' and that since it is common cause that no approval was obtained in terms of Section 17 (1) of the Roads Ordinance for the erection of the signs, the signs are for this reason also unlawful.

[25] The Respondents' contentions that the signs are not 'structures' for purposes of the Road Ordinance and that in any event, the projection are de minimis, are without merit. 'Structure' is defined in the Road Ordinance in broad terms as 'any structure, erection or thing whatsoever, aboveground or underground whether permanent or temporary, and irrespective of its nature or size.' Signs 4 and 9 are clearly structures within the meaning of the Road Ordinance and because of their encroachment into the City's land and high visibility the projections are not de minimis.

[26] The Respondents contend that the City is selectively enforcing the By-law by bringing the application against them, but is not doing so in relation to signs and billboards on Transnet property. The City points out, however, that because the national organs of state who display advertisements on Transnet property have failed to comply with the City's Section 75 notices and because Transnet has despite numerous meetings with its officials, not reacted favourably to the objections to the signs and billboards on its property, the City may have to invoke the provisions of the Intergovernmental Relations Framework Act, 13 of 2005 in order to comply with Section 41 (3) of the Constitution which requires an organ of state involved in an intergovernmental dispute to make every reasonable effort to settle the dispute and to exhaust all other remedies before it approaches the Court to resolve the dispute or risk the matter being referred back by a Court under Section 41 (4). In my view, the City cannot be faulted for not resorting to enforcement proceedings in Court against the organs of state. The City should, so it seems to me, first follow the procedure in terms of Section 41 of the Framework Act. In any event, the fact that the City has not instituted like enforcement proceedings against the organs of state, does not render the current application and the relief sought against the Respondents, incompetent.

[27] I turn to the counter application brought by IOM in which its seeks to impugn the By-law on Constitutional grounds. IOM does not seek to impugn any of the other laws that the City relies upon for the relief it seeks and in particular, it does not seek to impugn the provisions of the Building Act upon which the City relies and which affect the lawfulness of all the signs in question.

[28] The IOM has adopted a shotgun approach to the contention that the By-law is unconstitutional. The following points that were not all pursued in argument and are consequently not all addressed herein, were advanced by IOM as the bases for its attack:

(l)The By-law is unconstitutionally vague;

(2) The criminal sanction provisions in the By-law are unconstitutional;

(3) The distinction between first party and third party signs is unconstitutional;

(4)The By-law is used to 'discriminate irrationally' between private and state property;

(4) The By-law may not be applied 'retrospectively' to signs erected before its promulgation;

(5) The City enforces the By-law in an arbitrary, malicious, biased and selective manner and in bad faith;

(6) The enforcement of the By-law amounts to an unconstitutional expropriation of the rights of private landowners; and

(7) The City is seeking to monopolise third party advertising for its own benefit and the present application is an 'abuse of power'.

[29] A challenge to the constitutionality of the By-law first raised in reply in the counter-application is based on an interpretation of the phrase 'advertisements in public places' in Part B of Schedule 5 of the Constitution. The contention on behalf of the Respondents is that the phrase does not include advertisements on private property to which the public do not have general access or does not have access as of right. Such private property, therefore does not fall within the meaning of the phrase 'advertisement in public places', it is contended. I return to this challenge hereunder.

[30] The Respondents contend that Section 1 of the By-law is vague and incoherent because of the inherent vagueness of the definitions of 'advertisement', 'advertising structure' and 'sign'.

[31 ] The relevant definitions read as follows:

'In this By-law, unless the context otherwise indicates: "Advertising structure" means any physical structure built or capable of being used to display a sign.

"Advertisement" means any representation of a word, name, letter, figure or object or an abbreviation of a word, 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.

"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.

[32] The argument as I understand it is that because the definition of advertisement is stated to include advertising, it results in a fatal lack of clarity and the consequent vagueness of the definitions renders the By-law overbroad and will impermissibly restrict the freedom of public expression. I do not agree.

[33] First, Section 1 of the By-law qualifies the prohibition by restricting it to the display, erection or use of the advertisement, sign or advertising structures 'for advertising purposes'. Secondly, the restriction does not regulate the content of the advertising. Thirdly, the By-law must be seen in context and against the preamble of the By-law where the object is stated to be to 'regulate outdoor advertising in the jurisdiction of the City in a manner that is sensitive to the environmental quality of the different parts of the City... It seeks to strike a balance between outdoor advertising opportunities and economic development on the one hand and conservation of visual, tourist, traffic safety, environmental and heritage characteristics on the other hand....' The preamble further states that the relevant part thereof does not apply to authorised tourist destination signs, community information/educational boards and any sign required to be displayed by law, including road traffic signs. This is consequently one of those instances where (having regard to the opening words of the definition section) the word 'advertising' qualifies the purposes for which the advertisement is used and carries a different meaning to that of the forms of advertisement referred to in the definition of advertisement.

[34] In my view the definitions read in the proper context, do not render the provisions of Section 1 vague or overbroad. It does cover a wide range of methods and forms of advertising which, in my view, is appropriate, given the object of the By-law namely to regulate outdoor advertising in the City. The meaning of Section 1 is sufficiently clear and certain as to what is prohibited. The signs in question in this case clearly fall within the prohibition contained in Section 1.

[35] A further objection is that the By-law differentiates unconstitutionally between first-party and third-party signs. There is in this regard, first of all a dispute on the papers on the issue of whether first-party signs are more prevalent than third party signs. This is not a real dispute. It is not clear what the Respondents' evidence is about the relative numbers of the two forms of advertisement. The City on the other hand, has adduced expert evidence which is not disputed by expert evidence to the contrary, namely, that in a 'study area' in a part of the City, the comparative visual impact of first and third party signs differ and that generally, the first party signs have a low to moderate visual impact as opposed to third party signs which generally are of a higher visual impact in the same area. The Respondents raise a substantial number of instances where the By-law in their view, differentiate arbitrarily between the two categories of advertisements. I have considered these contentions and in my view and given the fact that the By-law seeks to strike the balance between the competing interests mentioned in the preamble, the distinctions are in my view, done for proper and legitimate governmental reasons. The challenge on this basis cannot succeed.

[36] In oral argument Mr Heunis, who appeared with Mr Osborne on behalf of the Respondents, referred to the judgment of Mokgoro, J in Case and Another v Minister of Safety and Security and Others. Curtis v Minister of Safety and Security and Others [1996] ZACC 7; 1996 (3) SA 617 (CC) where the learned Justice found that the overbroad definition of 'indecent and obscene matter' violated the right of freedom of expression and that the legislative provision should as a result be struck down notwithstanding that it was common cause in that case that the particular explicit material that was the subject matter of the litigation clearly fell within the core of the prohibition under the legislation. Mr Heunis submitted that the point of objective constitutional invalidity is that the litigant is not required to show that he/she is hit by the fact that the legislation is overbroad. Mokgoro, J was in the minority (in fact the only Justice) who dealt with the matter on the basis that the definition in question violated the right of freedom of expression. The basis upon which the majority agreed with the order that the provisions be struck down was that it violated the right to privacy and that the provision was overbroad because it imposed a narrow, sectarian morality on intimate matters. Be that as it may, I am of the view that the provisions in question in this case are not overbroad and draw a legitimate distinctions between first party and third party advertisement.

[37] On 21 December 2010 Cleaver, J delivered his judgment in the matter of City of Cape Town v Bouley Properties (Pty) Ltd in which the City sought an interdict preventing the Respondent from erecting, alternatively, to remove an advertising sign on its property situate at 6 A Marine Drive, Paarden Island. Cleaver, J granted an order sought by the City directing the Respondent to remove the signage within 14 days and dismissing the Respondent's counter application for orders declaring the By-law to be constitutionally invalid. The basis of the relief sought was that the Respondent had not obtained approval for the erection of the sign in terms of the By-law. The Respondent opposed the relief sought on the basis that the City had a suitable alternative remedy available to it and that, in any event, the By-law was inconsistent with the Constitution on various grounds.

[38] On 22 February 2011 Cleaver, J refused Bouley's application for leave to appeal to the Supreme Court of Appeal, alternatively, the Full Bench of this Division. Prior to this, on 1 February 2011, the Constitutional Court in a unanimous order by all eleven justices, dismissed with costs, Bouley's application to that Court for leave to appeal. The order is recorded as follows:

'The Constitutional Court has considered the application for leave to appeal in this matter. It has concluded that the application should be dismissed with costs, as it bears no prospects of success.' Incidentally, on 4 May 2011 (after this application was heard) the Supreme Court of Appeal dismissed Bouley's application for leave to appeal with costs.

[39] The question is what the consequences are that flow from the decision of Cleaver, J and the order of the Constitutional Court in Bouley.

[40] Mr. Breitenbach submitted that this Court is bound by the decision of the Constitutional Court in Bouley by virtue of the fact that the Constitutional Court has dismissed the application for leave to appeal on the basis that it bears no prospects of success. In the alternative, he submitted that Cleaver, J was not (clearly) wrong and that I am bound by and should follow the judgment of Cleaver, J in Bouley.

[41] The main constitutional attacks on the By-law in Bouley correspond with the bases of the Respondents' attack on the By­law in this case. I set the points out briefly.

[42] In Bouley Cleaver, J dealt with the attack based on the interpretation to be placed on the phrase 'Billboards and the display of advertisements in public places' in part B of Schedule 5 of the Constitution. The point was raised that the phrase 'advertisements in public places' does not include advertisements on private property. With reference, inter alia to the dictum in the judgment in Sithonga v Minister of Safety and Security and Others 2008 (1) SACR 376 (Tk) at par [15] Cleaver, J held that the phrase must be interpreted to mean 'advertising in places which exist in open view and are visible to the public' (at para [17]). In this case the argument advanced on behalf of the Respondents is that the phrase 'advertisement in public places' does not extend to third party signage on private buildings and that Cleaver, J was clearly wrong in this regard in Bouley. The City's application relating to signs which are not billboards and all of which are not on public property, must consequently be dismissed, Mr Heunis has submitted in this case. The very same issue was specifically raised in Bouley's application for leave to appeal to the Constitutional Court where it was contended that in terms of the Constitution, a local government can only make and administer By-laws in respect of Billboards and the display of advertisements in public places and that the phrase 'advertisement in public places' does not extend to all signs on private buildings. In opposing the application for leave to appeal, the City supported Cleaver, J's dismissal of Bouley's narrow interpretation, as being unassailable. The City submitted to the Constitutional Court that the term 'public places' includes those places that exist in open view and that are open to general observation. I agree with the City's contention and it follows that in my view, Cleaver J was correct and not clearly wrong in this regard.

[43] The second issue in Bouley and also in this case is that key proscriptive terms in Section 1 of the By-law which provides that save for exclusions not relevant here, no person shall 'display any advertisement' or 'erect or use any sign or advertising structure for advertising purposes' without the City's approval in terms of the By-law and any other applicable legislation, are vague and overbroad. Cleaver, J dealt with a similar contention in Bouley and held as follows at para [24]:

"[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 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 there may be some overlapping in the definition, the words 'or which is in itself a sign', 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 '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. "

[44] This very issue was fully ventilated in Bouley's application and in the City's answer to the application for leave to appeal to the Constitutional Court. Bouley submitted to the Constitutional Court that the key proscriptive provisions in Section 1 of the By-law are vague and overbroad and in effect meant that virtually any representation or any display was proscribed leaving too much discretionary power to the City officials responsible for applying the By-law. The City's reply joined issue in terms with all these contentions on behalf of Bouley. I dealt with this challenge earlier and in view of my conclusion, it follows that I think that Cleaver J was correct and not clearly wrong.

[45] A further issue raised in Bouley that is also raised in this application is that the alleged vagueness of the provision impacted adversely on and impermissibly limited protected commercial expression. This issue was considered and decided by Cleaver, J in Bouley. He held (at par [20]) that the By-law does not limit the right to freedom of expression but that if it did so, such limitation was reasonable and justifiable in terms of Section 36 of the Constitution. The issue was again canvassed in detail in Bouley's application for leave to appeal to the Constitutional Court and in the City's answer to the application. Again, I conclude that Cleaver J was not clearly wrong.

[46] In this application the Respondent contends that the provision of the By-law are overbroad and grossly arbitrary leading to overbroad criminalisation under Section 68 which provides that any person who contravenes or fails to comply with any provision of the By-law is guilty of an offence and on conviction is liable for a fine or imprisonment. This, so it is contended, amounts to indiscriminate criminalisation which constitutes a separate basis upon which the by-law is to be declared unconstitutional. In Bouley, Cleaver, J considered a similar argument namely that on a proper interpretation of the provisions of the By-law, 'a failure to comply with even a minor procedural requirement may result in a conviction and imprisonment'. Cleaver, J pointed out that since imprisonment can only follow on a trial, the contention that the By­law is invalid because it deprives offenders of their freedom without good cause cannot be sustained. Cleaver, J found that criminal sanctions for contravention of sections of the By-law providing for prohibited conduct are an essential and legitimate means of enforcing the By-law. This issue was raised in Bouley's application for leave to appeal to the Constitutional Court. It was contended that it amounted to the deprivation of freedom without good cause and it was further contended that the provisions of the By-law result in a constitutionally impermissible blanket criminal prohibition which must inevitably result in the whole of the By-law being struck down. The City answered these contentions in its opposition to the application for leave to appeal by submitting that, on a proper interpretation of the By-law, it is only the contravention of or failure to comply with the provisions of the By­law which in itself contains prohibited conduct (such as, for instance the conduct provided for in Section 1), which constitute an offence. Further that, in any event, imprisonment can only follow upon a criminal trial and that criminal sanctions constitute necessary and legitimate means to enforce the provisions of the By-law and that in absence of such measures, the City will be rendered powerless to meet its obligation to effectively regulate billboards and the display of advertisements in public areas in the interest of the environment and of the community concerned. I agree with these contentions on behalf of the City.

[47] In this matter the Respondents contend that the By-law is premised on arbitrary differentiation between first and third party advertisement which is not rationally connected to any legitimate governmental purpose. It is contended by the Respondents that the differentiation violates the principle of legality and the rule of law and infringes upon the right to equality, the right to freedom of expression, the right to freedom of trade and occupation and the right to property.

[48] The issue of differentiation between first party and third party advertising was raised in Bouley and Cleaver, J dealt with the issue in his judgment and accepted the City's explanation for the need to differentiate between the two forms of advertising. In addition Cleaver, J held himself to be bound by the dictum in the judgment in City of Cape Town v Ad Outpost (Pty) and Others 2000 (2) SA 733 (C), at 744 A-F where it was held that there clearly is a rational distinction to be drawn between own party advertising and third party advertisement and that the distinction which the City draws between the two forms is indeed a rational distinction. In my view the judgment of Cleaver J and the ratio of the decision in Ad Outpost is correct.

[49] Bouley raised the issue of the distinction between first and third party advertisement in its application for leave to appeal. Bouley ^fs contentions were fully set out in the application and the Constitutional Court's attention was drawn to the 2006 decision of the Supreme Court of Oregon in the United States of America in the matter of Outdoor Media Dimensions, Inc. v Department of Transportation where a similar challenge was upheld and where it was held that the distinction is not content neutral because it distinguishes on the basis of whether the 'message' on the advertisement related to activity conducted on the premises (first party advertisement) and any other message the content of which is not related to the activity conducted on the premises.

[50] In response to Bouley's application and the contentions raised by it in this regard the City answered in full and raised the same arguments it relies upon in this matter.

[51] It is clear from this analysis that the constitutional challenges in Bouley were for all intents and purposes identical to the challenges in this case. The decision of Cleaver, J in this Court in Bouley deals with a constitutional matter namely whether the By-law should be struck down as being unconstitutional. It is settled law that a Court can only depart from a previous decision of a Court of equivalent status in the same area of jurisdiction where it is satisfied that the previous decision is 'clearly wrong'. In True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) at 185 F-H at para [100] Cameron, JA said: "[100] The doctrine of precedent, which requires courts to follow the decisions of coordinate and higher courts in the judicial hierarchy, is an intrinsic feature of the rule of law, which is in turn foundational to our Constitution. Without precedent there would be no certainty, no predictability and no coherence. The courts would operate in a tangle of unknowable considerations, which all too soon would become vulnerable to whim and fancy. Law would not rule. The operation of precedent, and its proper implementation, are therefore vital constitutional questions. " (Footnote omitted) That principle applies also to a case where the points in issue involve an interpretation of the Constitution. (See Shabalala v Attorney General, Transvaal and Another 1995 (1) SA 608 (T) at 618; Ex parte Minister of Safety and Security: In re S v Walters [2002] ZACC 6; 2002 (4) SA 613 (CC) at 644 D - 646 F; paras [57] to [60]; Camps Bay Ratepayers and Residence Association v Harrison 2011 (2) BCLR 121 (CC) at 133 B- 134 F at paras [28] to [30]. What is binding is limited to the ratio decidendi (rationale or basis of deciding). It does not extend to obiter dicta or what was said "by the way" {Camps Bay Ratepayers, at 134 C; True Motives supra, at 185 H- 187 F paras [101] to [103])

[52] The argument on behalf of the Respondents was mainly directed at showing that the decision of Cleaver, J was clearly wrong on the constitutional points. In addition, it was submitted on behalf of the Respondents that the dismissal of Bouley's application for leave to appeal by the Constitutional Court, was irrelevant.

[53] Mr Breitenbach submitted that since the main constitutional attacks on the by-law in Bouley coincided with the bases of the constitutional attack by the Respondents in this case, this Court is bound not only by the judgment of Cleaver, J but also by the order of the Constitutional Court.

[54] The governing criterion set out in Section 167 (5) (b) of the Constitution for leave to appeal to the Constitutional Court is the interest of justice. However, the prospect of success is one of a number of factors relevant to that enquiry that must all be assessed together. (See Shaik v Minister of Justice and Constitutional Development and Others [2003] ZACC 24; 2004 (3) SA 599 (CC) at 608 E-F at para [16]). It is trite that it will seldom be in the interest of justice to grant leave to appeal to the constitutional Court if there are no prospects of success. {Minister of Safety and Security v Luiters [2006] ZACC 21; 2007 (2) SA 106 (CC) at 115 F-G in para [32].

[55] In Bouley the Constitutional Court expressly recorded the reason for the order dismissing the application for leave to appeal, namely, 'no prospects of success'.

[56] The Respondents' contention that the dismissal by the Constitutional Court of Bouley's application for leave to appeal is irrelevant and does not stand as a precedent is based in part on a statement in S v Pennington 1997 (4) SA 1076 (CC) at 1094 B-E para [51 ] where it was said that:

'The grant of leave to appeal is purely procedural and does not lead to the determination of the matter.'

[57] Mr Breitenbach pointed out in reply, correctly in my view, that where leave is granted, the appeal itself which follows upon leave being granted, will lead to the determination of the matter and that it does not follow that the refusal of leave to appeal on the grounds that there is no reasonable prospect of success, does not entail the determination of the matter. An order by the Constitutional Court refusing leave to appeal is clearly the end of the matter for the unsuccessful applicant for leave in a constitutional matter. The order in Bouley is, however, also an unequivocal statement by the highest Court that it endorses Cleaver, J's conclusions of no unconstitutionality. The order confirms that the constitutional grounds of appeal raised in that case and which grounds are again raised in this case, have no merit.

[58] There is therefore much to be said for the submission that even though it was reached in an application for leave to appeal not heard in open Court and no judgment with full reason was given, this Court is bound by the Constitutional Court's conclusion that the constitutional grounds of attack in Bouley, which are also raised in this case, have no merit (no prospect of success). Consequently it was submitted, it is not open for this Court to hold that Cleaver, J was clearly wrong. In Camps Bay Ratepayers case supra, at 133 D-E para [28], the Constitutional Court stated that the doctrine of precedent also binds Courts of final jurisdiction to their own decisions. Far be it therefore for this Court to disregard or to attempt to evade a clear statement by the full court of the Constitutional Court that there is no prospect of succeeding with the contention that Cleaver, J was wrong, let alone, clearly wrong.

[59] It is, however, not necessary to consider the matter any further because I am, for the reasons set out earlier, in any event, of the view that Cleaver, J was not clearly wrong. This Court is therefore bound to follow the decision in Bouley.

[60] I turn to the relief sought by the City.

[61] The City seeks first of all, declaratory orders in terms of Section 19 (1) (a) (iii) of the Supreme Court of Act 59 of 1959. The City is clearly an interested person. It has the duty and the right to enforce the laws it is required to administer. This is not in dispute. Section 19 (1) (a) (iii) empowers this Court, at its discretion, when approached by an interested person, 'to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such a (interested) person cannot claim any relief consequential upon the determination.'

[62] The declaratory relief is not strictly necessary for the mandatory interdicts sought by the City. The question whether the interdict should be granted will involve the same question, namely, whether there is a proper basis for the granting of the declaratory relief. A finding that the provisions of the By-law are valid and enforceable and that the signs in question contravene the provisions of the By­laws and are consequently unlawful, will form a basis upon which the interdicts may be granted. Having found, as I have that the By­law is not unconstitutional, it is not strictly necessary for purposes of the interdict to determine whether the signs also contravene the other legislative provisions and the rule of the common law relied upon by the City. In this case, however, the issues raised are not in my view, hypothetical or academic. There has been persistent conduct by the Respondents over a considerable period of time which they claim to be lawful. The City contends that the conduct has been unlawful for its contravention of the various pieces of legislation and the common law. The City will obtain material advantage and the Respondents will gain a clear understanding of what their obligations are in regard to signs of this nature and the parties will acquire certainty about the legality of the signs in question. (See Myburgh Park Langebaan (Pty) Ltd v Langebaan Municipality and Others 2001 (4) SA 1144 (C) at 1153 E-1154 J). I conclude that this is a case where declaratory relief should in the exercise of my discretion, be granted.

[63] The City seeks final mandatory interdicts and must consequently show that it has a clear right, that there is an injury actually committed or reasonably apprehended and that there is no other satisfactory remedy available to it.

[64] As I understood the argument on their behalf, the Respondents do not dispute that the City has a statutory duty to uphold the law and to see to due compliance with the By-law and the other laws it is called upon to administer, and that the City consequently has a clear right to approach the Court for an order to enforce the provisions of the legislation and to stop the contravening conduct of the Respondents, in the interest of the community of Cape Town.

[65] I also did not understand the Respondents to dispute that conduct which is unlawful because it contravenes the By-law, constitutes an injury to the City who is charged with enforcing the provisions of the By-law. The injury has also clearly been a continuing one.

[66] The Respondents do, however, contend that the City has not satisfied the third requirement, namely the absence of a satisfactory alternative remedy. The Respondents contend that the City has two effective alternative remedies, namely, the provisions of Sections 75 and 76 of the By-law which provide for the issuing and enforcement of removal notices and criminal prosecution under Section 68 of the By-law. The Respondents contend that the City failed to adequately pursue the two alternative remedies.

[67] Sections 75 and 76 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 service are advertised, calling upon such person to remove such sign or carry out such alteration thereto or do such works 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.

76. Should the Municipality's demands, as set out in the notice, not be carried out within the time period specified therein, the Municipality may, without further notice to the person upon whom the notice was served and after obtaining relief from the appropriate court on an ex parte basis, remove or alter the sign or do such work as may be specified in such notice, provided that no court order shall be required, if the unlawful sign is erected or displayed on property belonging to the Municipality, prior to removal or alteration thereof. "

[68] The Respondents' contention is, in effect, that the City must follow up the notices it has given under Section 75 in respect of the signs in question, with ex parte proceedings under Section 76 and that the City is not entitled, in view of the existence of the Section 76 procedure, to bring an application such as the present, for interdictory relief on Notice of Motion.

[69] I agree with the submission by Mr Breitenbach that Section 76 does not in fact create an alternative remedy and is in fact, essentially the same remedy as is sought in the present application, namely, the removal of the signs, save that under Section 76, the application may be brought without notice, which in effect means that the City must first seek a Rule Nisi in order to avoid infringing the audi rule and the right to a fair hearing in Section 34 of the Constitution. (See NDPP and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) in relation to ex parte applications under Section 38 of the Prevention of Organised Crime Act). In addition, in this case, the signs have been in place for many years and the Respondents' attitude was made clear, namely that they dispute the constitutionality and applicability of the By-law. In the circumstances, an ex parte application for a Rule Nisi would be an extraordinary and cumbersome, if not unsuitable method to obtain a removal order. The ordinary motion proceedings on notice to the Respondents adopted by the City are, in the circumstances, the more suitable remedy.

[70] Relying on the statement in Food and Allied Workers' Union and Others v Scandia Delicatessen CC and Another 2001 (3) SA 613 (SCA) at 621 F-J where the Court considered whether a criminal prosecution would be an adequate remedy for the party seeking a mandatory interdict in that case and stated at para [35] that 'it can be accepted that in certain cases a criminal prosecution may well be an adequate remedy such as to disentitle a person to whom the remedy is available from obtaining an interdict', the Respondents contend that in this case criminal prosecutions constitute a suitable alternative remedy.

[71] Dealing with the evidence, the Court in Scandia went further to point out (at para [36]) that in that case, 'No attempt is made in the Affidavits filed on behalf of the [applicant for the interdict] to indicate why a criminal prosecution in this case would be an inadequate remedy. Indeed, the deponents do not even say if any endeavours were made to lay a charge or what happened, or did not happen, if such charge was laid. By contrast, in the Ebrahim case supra it was stated that (at 493 A-B) that the remedy of the institution of a prosecution had been found to be ineffective.' Further, at para [39] the SCA observed that:

'In the present case it is not suggested that the State declined to prosecute not that there is any realistic reason to believe that a prosecution (whether brought by the State or by the appellants as private prosecutors) will fail for some technical reason. It is also not suggested that the fact that mens rea would have to be proved will, on the facts of this case, create a difficulty'. The SCA consequently held that the absence of a suitable alternative remedy had not been established.

[72] In this case the City in its founding papers stated that the City has in the past attempted to use criminal processes and that it had in the past laid criminal charges against Mr Dyssel, the person behind IOM, on more than one occasion. The City alleges that after lengthy and protracted correspondence and representations by Mr Dyssel, the Director of Public Prosecutions and not the prosecutor seconded by the City, decided not to further pursue the charges against Mr Dyssel. It is common cause that the prosecutor seconded by the City to act on delegated authority from the National Prosecuting Authority and is therefore subject to the decisions of that authority. The City contends that because representations are often, and were in this case made by an accused against whom charges are laid, the lengthy delays such representations inevitably engender, the fact that low priority is given to such charges, the fact that during the delays the unlawful signs remain on display and continue to generate income for the accused, the relatively low maximum sentences that are handed down by the criminal courts and the fact that criminal Courts lack the power to grant orders of the kind sought in this case, namely that the offending signs be removed, criminal proceedings do not constitute an adequate alternative remedy in a case like the present. In addition, as was pointed out in argument, the defences raised in this case will make it very unlikely that in a criminal prosecution the State will be able to prove mens rea beyond a reasonable doubt.

[73] In my view, the City has established that criminal processes and the procedure under Sections 75 and 76 of the By-law do not constitute adequate alternative remedies in this case. The City has shown that there is no other suitable effective remedy available to it in this case.

[74] I turn to the issue of costs. It was submitted on behalf of the City that the Court should express its displeasure at the manner in which the Respondents have acted in disregard of the law in erecting the signs without approval and have refused to remove the signs despite the notices to remove the signs. It was submitted that the main purpose of IOM's opposition to the application has been to prolong its unlawful conduct. It was pointed out that IOM's revenue from the signs for each month of the litigation has been approximately Two hundred thousand rand (R200 000.00). The other Respondents have joined IOM in opposing the relief sought despite the outcome of the Bouley case. The City has correctly characterised the Respondents' papers as prolix, repetitive and argumentative and has pointed out that their two main sets of papers were filed late. The City has asked for a costs order on the attorney and client scale and for the costs of three counsels. The appointment of three counsel was necessitated by the late and voluminous papers that were filed by the Respondents, it was submitted. The Respondents, in response have contended that no cost order should be made against them because this is 'rights litigation'. However, as was pointed out on behalf of the City, the Respondents are pursuing their private commercial interests. The question is whether the usual rule that the costs follow the event, should not be applied in this case. In SA Commercial Catering and Allied Workers Union v I & J Ltd [2000] ZACC 10; 2000 (3) SA 705 (SCA) at 725 F- 726 A, Cameron, JA said:

'In this Court the general principle has been established that parties should not be discouraged from asserting and vindicating their fundamental constitutional rights and freedoms as against the State. This principle does not apply to all private litigants unsuccessfully asserting constitutional claims against the State. This Court has, for instance, ordered such litigants to pay costs in the absence of goodfaith or where the litigant mulcted in costs was apparently pursuing private commercial interests' (Footnotes omitted).

[75] This is not a case where there is a good reason why the Respondents, who have pursued their own commercial interests and lost, but have raised constitutional points, should not be ordered to pay the City's costs. I think that there is considerable merit in the contention on behalf of the City that costs should be awarded on the attorney and client scale. On reflection, however, I think that this is not such a case and that costs on the scale as between party and party should be awarded. I do consider that the employment of three counsels was justified by the large number of factual and legal points that were raised at a late stage. The Respondents must also pay the costs of the City's expert witnesses De Villiers and Jordaan.

[76] The City has indicated that since sign 10 was removed, it no longer seeks substantive orders against the Tenth Respondent. It nevertheless seeks a cost order against the Tenth Respondent until the filing of the Tenth Respondent's Supplementary Affidavit on 7 March 2011. I see no reason why this should not be done.

[77] I consequently make the following orders:

1. Declaring that each of the signs on the respective properties of the Second to Ninth and Eleventh Respondents as more fully described in the Founding Affidavit, contravene the City's Outdoor Advertising and Signage By-Law 10518, promulgated on 5 December 2001 in Provincial Gazette 5801 ('the By-Law'), and is consequently unlawful;

2. Declaring that each of the signs is a "building" in respect of which plans and specifications are to be drawn and submitted in terms of the National Building Regulations and Building Standards Act 103 of 1977 ("the Building Act") and the National Building Regulations made in terms of the Building Act, and in respect of which the City's prior written approval for its erection was required but was not obtained, and is consequently unlawful;

3. Declaring that the City's approval of a departure in terms of section 15 (1) (c) of the Land Use Planning Ordinance, 15 of 1985 ("LUPO") from the provisions of the Zoning Scheme Regulations for the City of Cape Town promulgated in terms of s 9 (2) of LUPO in the Provincial Gazette on 29 June 1990 ("the Scheme Regulations") was required in respect of the sign on Fourth Respondent's property, because the said sign was erected in an area in which the zoning does not permit commercial use, but was not obtained, and the said sign is consequently unlawful;

4. Declaring that permission of the City and the Premier, in terms of s 126 of the Municipal Ordinance 20 of 1974 for the projection of the signs on the properties of the Second, Eleventh, Third and Fourth Respondents over and into the adjoining streets was required, but was not obtained, and that the said signs contravene s 73 of the Scheme Regulations and are consequently unlawful;

5. Declaring that the signs on the properties of the Second, Eleventh, Third, Fourth and Ninth Respondents encroach over property owned by the City in breach of the City's common law rights and are consequently unlawful;

6. Declaring that permission of the City and the Premier, in terms of section 17 (1) of the Roads Ordinance 19 of 1976 ("the Roads Ordinance"), was required in respect of the signs on Fourth and Ninth Respondents' properties, because the said signs were to be erected within 5m from the boundary of the statutory width of a public road, but was not obtained, and the said signs are consequently unlawful;

7. Directing that the First Respondent ("IOM") must, within fourteen days from the date of the order of this Court, at its own cost, remove all of the signs;

8. Directing that the Second to Ninth and Eleventh Respondents must, within fourteen days from the date of the order of this Court, at their own cost, remove the signs on their respective properties;

9. If any of the signs or parts of the signs are not removed within the required period, the Sheriff is authorised and directed to remove the remaining signs or parts thereof immediately;

10. Directing the Second to Ninth and Eleventh Respondents to permit IOM and/or the Sheriff to remove the signs or parts thereof on their respective properties, including granting IOM or the Sheriff access to their respective properties;

11. Directing IOM and the Second to Ninth and Eleventh Respondents (in respect of the signs on their respective properties) to pay any costs incurred by the Sheriff in relation to any removal of the signs or parts thereof within seven days of a demand to do so failing which the city may immediately proceed with a warrant of execution in respect of the costs of the Sheriff, including the costs of any third party engaged by the Sheriff;12. Directing that the costs of this application be paid by the Respondents, jointly and severally with one another, such costs to include the costs of three counsel where three counsel were employed and the qualifying expenses of the witnesses Pieter Willem Jordaan and Tanya de Villiers, provided that such order as to cost in respect of the Tenth Respondent shall be in respect of costs up to 7 March 2011.

LOUW, J