Republic of South Africa

In the High Court of South Africa 
Western Cape High Court, Cape Town

Case No:   9346/2009
In the matter between:
CITY OF CAPE TOWN 						APPLICANT
Versus
INDEPENDENT OUTDOOR MEDIA (PTY) LTD			FIRST RESPONDENT

CHEVRON SOUTH AFRICA (PTY) LTD				 SECOND RESPONDENT

FORMID TRIO CC						 THIRD RESPONDENT

ROXBURGH BODY CORPORATE				 FOURTH RESPONDENT

THE ANGLICAN CHURCH OF SA
(DIOCESE OF CAPE TOWN)					FIFTH RESPONDENT

BURNSIDE COURT (PTY) LTD					SIXTH RESPONDENT

LSG LUFTHANSA SERVICE CAPE TOWN			 SEVENTH RESPONDENT

INKQUBO PROPERTIES 22 CC					EIGTH RESPONDENT 

JMS MARKETING CC						 NINTH RESPONDENT

BODY CORPORATE OF 72 ON KLOOF				 TENTH RESPONDENT

THE OWNER OF ERF 572 CAPE TOWN				ELEVENTH RESPONDENT 

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.

[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.

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.

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'.

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

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.

[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.

[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

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.

[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:

[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.

[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.

"[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. "

[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.

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

[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.'

[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. "

[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.

[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. 

LOUW, J