Boycott, Divestment And Sanctions South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others (2013/19700) [2014] ZAGPJHC 200; 2015 (1) SA 462 (GJ); [2014] 4 All SA 347 (GJ) (11 September 2014)

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[2014] ZAGPJHC 200
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Boycott, Divestment And Sanctions South Africa and Another v Continental Outdoor Media (Pty) Ltd and Others (2013/19700) [2014] ZAGPJHC 200; 2015 (1) SA 462 (GJ); [2014] 4 All SA 347 (GJ) (11 September 2014)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO:2013/19700
DATE:
11 SEPTEMBER 2014
In
the matter between:
BOYCOTT,
DIVESTMENT AND SANCTIONS
SOUTH
AFRICA
............................................................................................
First
Applicant
SWEETWORKS
ADVERTISING AGENCY
CC
...........................................
Second
Applicant
And
CONTINENTAL
OUTDOOR MEDIA (PTY) LTD
........................................
First
Respondent
THE
CITY OF
JOHANNESBURG
............................................................
Second
Respondent
THE
ADVERTISING STANDARDS
AUTHORITY
.......................................
Third
Respondent
JUDGMENT
MAYAT
J
INTRODUCTION
[1]
On the 29
th
of October 2012, the first respondent removed
an outdoor advertisement from a billboard on a site alongside the M1
highway, in
Johannesburg, near Empire Road. The said advertisement
depicted Israel’s occupation of Palestine on the basis of three
contrasting
maps in 1946, 1967 and 2012. The applicants challenge the
said removal in the present proceedings on the basis of a number of
grounds,
including freedom of expression, enshrined in section 16 of
the Constitution.
PARTIES
[2]
Boycott, Divestment and Sanctions (“BDS”) is a global
campaign initiated by 171 non-governmental organisations in
July
2005, in support of the Palestinian cause for boycotting Israel and
promoting disinvestment from Israel as well as imposing
international
sanctions against Israel. The first applicant, BDS South Africa
(“BDSSA”), is a non-profit organisation
affiliated to
BDS, which was subsequently established in South Africa in 2010. To
the extent that it is relevant in this context,
the founding papers
in this matter indicate that BDSSA is made up mostly of volunteers.
[3]
The second applicant is a duly registered close corporation named
Sweetworks Advertising Agency CC (“Sweetworks”),
which is
apparently affiliated to a company named Broadway Sweets (Pty) Ltd
(“Broadway Sweets”). There are documents,
which form part
of the answering papers, which indicate that one of two members of
Sweetworks is also a founding member of BDSSA.
[4]
The first respondent (“Continental”) is a duly registered
and incorporated private company, involved in renting
out advertising
space on thousands of different outdoor billboards in 14 countries in
sub-Saharan Africa.
[5]
The second respondent (“the City”) is a local authority
duly established in terms of the Local Government and Municipal

Systems Act 32 of 2009. The third respondent, the Advertising
Standards Authority of South Africa, (“the ASA”), is
an
independent body, established by the marketing industry, which
regulates advertisements of its members on the basis of a voluntary

code for advertising practices.
RELIEF
CLAIMED
[6]
The primary relief, which the applicants seek against Continental, is
a declaratory order that the removal of the above advertisement
by
Continental on the 29
th
of October 2012 was unlawful and
unconstitutional.
[7]
In terms of the applicants’ notice of motion, the applicants
also seek an order directing Continental to reinstate the
said
advertisement on the billboard at the site (from where it was
removed) within 5 days of an order by this court and to maintain
the
reinstated advertisement for a continuous period of three months
against payment of rental for such billboard as envisaged
in a rental
agreement between Sweetworks and Continental. In reply, the
applicants assert that they are not prescriptive with respect
to the
site where they seek to have the said advertisement reinstated.
[8]
In relation to the City, the applicants seek a declaratory order that
the provisions of section 9(h) of the Outdoor Advertising
By-Laws of
the City promulgated in the Provincial Gazette Extraordinary Number
227 on the 18
th
of December 2009 is inconsistent with the
Constitution and invalid.
[9]
Continental opposes the relief claimed primarily on the basis that
Sweetworks was in breach of the rental agreement, which it
had
concluded with Continental. Continental also contends the applicants
cannot enforce constitutional rights against Continental
as a private
entity. Whilst the City indicates that it is neutral with respect to
the contractual dispute between Sweetworks and
Continental, it
opposes the relief relating to the constitutional invalidity of the
advertising by-laws, referred to above.
RELEVANT
FACTUAL MATRIX
[10]
By way of background, the director and chief executive officer of
Continental, Barry Sayer (“Sayer”) states that

Continental has erected billboards at some 2400 sites for the
purposes of advertisements. Continental generally enters into
agreements
with local authorities and owners of sites, where the said
billboards are located. Billboards have accordingly been erected by
Continental on sites on the M1 highway near the Jan Smuts and Empire
Road intersection (referred to by Continental and in this judgment
as
the “Houghton site”), near Grayston Drive, Sandton
(referred to by Continental and in this judgment as the “Grayston

site”) as well on the M2 highway (referred to by Continental
and in this judgment as the “M2 site”). Sayer accordingly

indicates that Continental has concluded a rental agreement with the
City, as owner of these sites. Whilst Sayer further states
that the
terms of Continental’s agreement with the City are
confidential, it is not in dispute in these proceedings that

Continental has certain contractual obligations to the City.
[11]
It is common cause on the papers that on Friday, the 26
th
of October 2012, an advertisement was displayed on an outdoor
advertising billboard alongside the Houghton site. As stated above,

the said advertisement, commissioned by BDSSA, depicted three
contrasting maps of Israeli occupation of Palestine in 1946, 1967
and
2012. The 1946 map, marked “PALESTINE”, is almost
completely shaded with a few white patches. The 1967 map in the

middle, is mostly white with two shaded portions (with one shaded
area being much larger than another very small shaded strip of
land
on the left side).  It is again stipulated that the shaded
portion represents “Palestine Land” and the much
greater
white portion represents “Jewish Land”, which is marked
“ISRAEL”. The 2012 map, again predominantly
white, marked
“ISRAEL”, reflects patches of shaded area, which are now
much reduced. Again, it is stipulated that the
comparatively small
patches of shaded land represents “Palestine Land” and
the white part (comprising virtually the
whole map) represents
“Jewish Land”. It is written in big letters under the
three maps “
Israeli
Occupation of Palestine”
and
to the right of the three maps, is written also in big, bold letters
“
Israel’s
Occupation of Palestine is Illegal under International Law.”
Under these words is stipulated
www.bdssouthafrica.com
.
[12]
It is also not in dispute on the papers that Sweetworks had concluded
a rental agreement with Continental on the 27
th
of
February 2012, in terms of which Sweetworks rented space on
advertising billboards for the flighting of Sweetworks’
“Artwork”
on such billboards.
[13]
Unless the context indicates otherwise in this judgment:
i) the
advertisement, which was flighted on the billboard at the Houghton
site on the 26
th
of October 2012, is referred to as “the
advertisement”;
ii) the rental
agreement concluded between Sweetworks and Continental on or about
the 27
th
of February 2012, is referred to as the “2012
rental agreement”;
iii) the Outdoor
Advertising By-Laws for the City of Johannesburg Metropolitan
Municipality promulgated in the Provincial Gazette
Extraordinary
Number 277 of 18 December 2009, is referred to as “the
advertising by-laws”; and
iv) the
Advertising Practice Code of the ASA is referred to as “the ASA
code”.
[14]
As already indicated, it is common cause on the papers that the
present application was triggered by the removal of the advertisement

by Continental on Monday, the 29
th
of October 2012. It is
also common cause that Continental effected such removal, without any
notice or reasons to Sweetworks at
the time.
[15]
The deponent to the founding affidavit is Muhammed Desai (“Desai”),
a co-ordinator of BDSSA. His affidavit is supported
by a confirmatory
affidavit signed by Nazir Ahmed Osman (“Osman”), who
states that he is the duly authorised representative
of Sweetworks.
[16]
Desai annexes to his affidavit by way of factual background to the
advertisement an advisory opinion or judgment by the Judges
of the
International Court of Justice (“ICJ”) relating to the
occupied Palestinian Territory. It appears that 13 Judges
of the ICJ
including the President and the Vice-President handed down the
judgment in July 2004. As indicated in the advertisement,
the ICJ
concluded in paragraph 121 of its judgment that:
“
The Court
concludes that Israeli settlements in the Occupied Palestinian
Territory (including East Jerusalem) have been established
in breach
of international law.”
[17]
To the extent that it is relevant in this context, it also appears
from the said judgment that the ICJ found that Israel had
breached
various obligations under the applicable provisions of international
humanitarian and human rights instruments. Therefore,
in relation to
the construction of a wall in the Palestinian Territory, the ICJ
found in paragraph 155 of its judgment inter alia
that:
“
Israel is
under an obligation to return land, orchards, olive groves and other
immovable property seized ….in the Occupied
Palestinian
Territory…”
[18]
On this basis of this judgment, Desai asserts that the facts in the
advertisement are substantiated. He accordingly also states
that the
campaign in this matter is aimed at addressing a matter of major
international concern by the United Nations General Assembly

involving a breach of international law, in accordance with the
findings of the ICJ.
[19]
Desai further asserts that numerous other advertisements of a similar
nature, substance and content to the advertisement in
the present
matter have been displayed around South Africa by BDSSA. Photographs
of other sites where the same or similar advertisements
were
displayed at unspecified times, are incorporated in the founding
papers.
[20]
By way of background and surrounding circumstances in relation to the
2012 rental agreement, it appears from documents annexed
to
Continental’s answering affidavit that Broadway Sweets, trading
as Sweetworks Advertising Agency, initially applied for
credit
facilities to Continental in May 2011.  Continental has since
ascertained that the directors/members of both Broadway
Sweets and
Sweetworks are identical.  It also appears from the answering
papers that pursuant to the above application for
credit facilities,
Continental concluded a previous rental agreement with Broadway
Sweets on or about the 20
th
of September 2011 for the
period October 2011 to September 2012. The said previous rental
agreement stipulates the brand to be
advertised by Broadway Sweets as
a lollipop named “Stumbo pops”. Thereafter, Continental
and Sweetworks concluded the
2012 rental agreement commencing from 1
March 2012 for an initial fixed period of 12 months, and thereafter
renewable.
[21]
It appears from a copy of the 2012 rental agreement that the
Sales/Marketing Director of Continental, Adelaide McKelvey, signed

the said agreement on behalf of Continental. Kelly Hastings-Brown
(“Hastings-Brown”) on behalf of Continental is stipulated

to be the “Account Executive” on the agreement.
Sweetworks is described as the “Advertiser” in the
“GENERAL
TERMS AND CONDITIONS” of the said agreement, but
the first page of the agreement, which incorporates a summary of the
agreement,
and makes provision for signature by the parties, makes
reference to “CLIENT/ADVERTISER”. In the space provided
for
“Brand (if applicable)”, it is stipulated “Sweetworks
Advertising Agency – renewal”. It is also provided
that
after the initial period of 12 months (from the 1
st
of
March 2012), the agreement will continue for an indefinite period “if
applicable”, subject to either party being
able to terminate
the said agreement upon four calendar months notice. By agreement
between the parties, the 2012 rental agreement
was subsequently
terminated with effect from the 31
st
of May 2013.
[22]
Clause 2 of the 2012 rental agreement provides as follows:
“
The
Parties hereby enter into an agreement for the supply of an
Advertising Site for the flighting of the Advertiser’s Artwork

on the Advertising Sign by Continental Outdoor Media for the
Advertiser in accordance with those specifications contained in the

Rental Agreement and otherwise subject to the provisions contained
herein.”
An
“Artwork” in this context is defined in the 2012 rental
agreement as:
“
the
image and all advertising materials approved by the Advertiser or
Agency for display by Continental Outdoor Media in accordance
with
this Agreement…”
The
“Advertising Site” is defined as the property on which
the advertising signs are situated, as more fully described
in an
annexure to the 2012 rental agreement. In terms of lause 4, the
rental was payable on a monthly basis.
[23]
Clauses 6.2.2 and 6.3.1 provide that Continental’s obligations
include making the “Advertising Site” available
and to
allocate to Sweetworks:
“
an
alternative Advertising Site in the event that the Advertising Site
specified in the Rental Agreement not being available….”
[24]
Clause 7.1 provides inter alia as follows:
“
7.1
The Advertiser provides Continental Outdoor Media with the following
warranties in relation to the artwork: -
7.1.1
it complies in all respects with the requirements of the
AdvertisingStandards Authority of South Africa;
…
..
7.1.4
such display will not contravene any by-law or statute.”
[25]
Clause 7.3 further provides in relation to any breach of the above
warranties that:
“
Should
Continental Outdoor Media on reasonable grounds believe that the
Advertiser is in breach of the aforegoing warranties then,

notwithstanding the indemnity provided from (sic) in clause 7.2 above
Continental Outdoor Media may decline to authorise the flighting
of
the Artwork until such time as the Advertiser is able to satisfy
Continental Outdoor Media to the contrary, provided that in
the
interim the Advertiser shall still be liable to Continental Outdoor
Media for the payment of rental from the Commencement Date
until the
date upon which the Artwork is taken out of charge, and the
Advertiser shall have no claim whatsoever against Continental
Outdoor
Media arising therefrom.”
[26]
Clause 12 provides that Continental is permitted to remove an
advertisement “in the event of any competent authority
lawfully
requiring Continental to remove from the Advertising Site either the
structure or the Artwork”. Clause 13 of the
said agreement,
provides that in the event that either party is in breach of any of
the terms and conditions of the agreement and
fails to remedy such
breach within 7 days of receipt of notice from the other party, then
the other party is entitled either to
enforce the provisions of the
agreement or to cancel the agreement.
[27]
Clause 14 provides that no amendment to the agreement would be
binding unless reduced to writing and signed by all the parties.
[28]
As indicated in the definition of an “Advertising Site”,
the different advertising sites are more fully described
in an
annexure to the 2012 rental agreement and titled “SWEETWORKS
HOLDING SITES FOR 2012”. Whilst the said annexure
appears to
specify in tabular form, different advertising sites (including the
size and place of the relevant billboard) all over
South Africa for
each month of the 2012 rental agreement, it appears that the Houghton
site is not specified in the annexure. Be
that as it may, it appears
that each site specified in the annexure is available for twelve
months. It also appears from the said
annexure that details of
advertisements for each site allocated for twelve months is not
specified, nor is the period of display
for an advertisement on each
billboard specified.
[29]
It is not in dispute on the papers that there were communications
between Sweetworks and Continental relating to an advertisement
and
possible advertising sites for a “community campaign”.
Thus, Osman raised the possibility of such an advertisement
as part
of a “community campaign” with an accounts executive of
Continental, Hastings-Brown on or about the 3
rd
of October
2012. It appears from correspondence on record (including an email
dated 18
th
October 2012 from Osman to Hastings-Brown) that
Osman referred to the proposed advertisement as the “Palestine
Billboard
Campaign”.
[30]
After communicating with Osman, Hastings-Brown then took certain
steps, including obtaining a higher resolution of the picture
file
sent to her by Osman from the designers of Sweetworks. She also
subsequently sent the email she had received from Osman in
relation
to the proposed advertisement to Continental’s production
department, who had then forwarded the said email, including
the
artwork relating to the advertisement, to Continental’s
printers.
[31]
It appears from the papers that pursuant to the above communications
from Osman, Hastings-Brown entered into discussions with
Sweetworks
relating to the proposed advertisement at three possible sites
namely, the Houghton site, the Grayston site and the
M2 site.
However, in a subsequent email from Osman to Hastings-Brown, it
appears that Osman made reference only to the Grayston
and the M2
sites, and not to the Houghton site. Be that as it may,
Hastings-Brown then furnished Osman with a quote and a purchase
order
for the proposed advertisement.
[32]
Against this background, it appears from the papers that during the
course of her discussions with Osman, Hastings-Brown received,
read
and forwarded an email from Osman relating to the proposed
advertisement, under the stated subject of “Palestine
Billboard”.
In due course, after the proposed advertisement was
apparently pre-approved by Continental, Hastings-Brown procured a
contract
to display the advertisement at the Houghton site.
[33]
In the answering affidavit signed by Sayer (supported inter alia with
a confirmatory affidavit by Hastings-Brown) it is stated
that
Hastings-Brown had failed to check the artwork relating to the
proposed advertisement before forwarding it to the printers.
It is
also stated that she “took no notice of the content of the
advertisement.” It is further stated that even though

Hastings-Brown “viewed” the advertisement, she took “no
notice of the description of the artwork”, until
she was
subsequently approached by Sayer. In addition, it is stated that
Hastings-Brown “had no idea as to the conflict and
controversy
which exists between Palestine and Israel” and also that she
had no authority to approve the advertisement on
behalf of
Continental, as she was merely the account executive. Sayer contends
in the answering affidavit in these circumstances
that Hastings-Brown
erroneously flighted the advertisement at the Houghton site, as the
said site had already been let to a third
party. Whilst the
advertisement was never flighted at the Grayston site, Sayer states
in his answering affidavit in the context
of the reinstatement of the
advertisement at a comparable site, that it is well known that a
large segment of the Jewish community
in Johannesburg are centered in
either Houghton or Atholl near the Grayston site.
[34]
As already stated, Continental subsequently removed the advertisement
from the Houghton site on Monday the 29
th
of October 2012.
It appears from the papers that Sweetworks was initially
informed by Continental’s representatives
that the
advertisement was removed as a result of pressure exerted on
Continental by members of the Jewish community. After Sweetworks
took
issue with the removal of the advertisement, representatives of
Continental and Sweetworks communicated with each other from
October
2012 onwards, until the present application was instituted in June
2013.
[35]
In an email dated the 26
th
of November 2012, Continental
took the view that the advertisement did not comply with the ASA
code. It was also indicated at the
time that Continental’s view
in this respect had been confirmed by an entity named the
“Association for Communication
and Advertising”.
[36]
Pursuant to further communications between the parties relating to
re-flighting the advertisement, on the 11
th
of December
2012, Continental’s Group Legal Counsel, Rishaan Ramkissoon
(“Ramkissoon”) sent two letters to Sweetworks,
one of
which was “with prejudice” and the other one was marked
“without prejudice”. For the purposes of
these
proceedings Continental has waived its privilege in relation to the
letter marked “without prejudice.”
[37]
In the “with prejudice” letter dated 11
th
December 2012, some six weeks after the advertisement was removed,
Ramkissoon provided “for the sake of completeness”,

Continental’s reasons for the removal of the advertisement. The
stated reasons at the time included Continental’s obligation
to
the City, Continental’s own internal media policy, the ASA
code, and an averred breach of the 2012 rental agreement by

Sweetworks. In the “without prejudice letter”, also dated
the 11
th
of December 2012, Ramkissoon proposed settling
this matter amicably on the basis of one of three options. The first
option proposed
was that the parties agree to terminate their
contractual relationship. Ramkissoon also indicated at the time that
all rights and
obligations between Sweetworks and Continental would
be extinguished in the event that the dispute between the parties was
settled
as proposed.
[38]
Thereafter, in a subsequent letter dated 12th February 2013,
Ramkissoon noted that Sweetworks had not responded to Continental’s

settlement proposals. Ramkissoon also reiterated at the time that
Continental had removed the advertisement due to non-compliance
with
the City’s by-laws. Whilst Ramkissoon also made a demand for
payment in February 2013, it is not in dispute in the context
of the
present proceedings that the removal of the advertisement was not
caused by non-payment by Sweetworks in terms of the 2012
rental
agreement.
[39]
In due course, the applicants attorneys of record, Legal Resources
Centre (“LRC”) sent a letter to Continental
(copied to
the City and the ASA) dated the 18
th
of March 2013,
denying that Sweetworks was in breach of the 2012 rental agreement,
and calling upon Continental to re-flight the
advertisement within 14
days of the date of receipt of LRC’s letter. It is asserted in
the answering papers in this respect
that on or about the 18
th
of March 2013, Ramkissoon had also received a telephone call from
Osman informing him that Sweetworks had accepted the first option
of
settlement, referred to above. Thereafter, on the 26
th
of
March 2013, Ramkissoon sent a letter to Sweetworks referring to the
conversation with Osman on the 18
th
of March 2013, and
confirming inter alia that the 2012 rental agreement would not be
renewed, after the 31
st
of May 2013. Ramkissoon also
stated at the time in his letter that:
“
For the
avoidance of any doubt, Continental shall not have any further
obligations to Sweetworks in respect of any advertisement/artworks

and shall not be obliged to flight any advertisements/artworks other
than those already flighted…”
In
addition, Ramkissoon stated at the time that:
“…
neither
party shall have any claim of whatsoever nature and howsoever arising
against the other flowing from the termination of
the agreement save
for in respect of payment by Sweetworks of Continental’s
invoices.”
[40]
Continental’s attorneys of record Edward Nathan Sonnenbergs Inc
(“ENS”) then responded to the letter from
LRC on the 2
nd
of April 2013, confirming inter alia that the 2012 rental agreement
“will terminate with effect from 31 May 2013 and Sweetworks
and
our client have agreed that it will not be renewed.”
[41]
Sayer explains in his answering affidavit that on the morning of
Monday the 29
th
of October 2012, he was alerted to the
flighting of the advertisement on the Houghton site. He states that
he walked into his office
that morning “straight into the
public outcry”. He further states that Continental received
complaints from the Jewish
community and was inundated with calls
from radio stations as well as the press. In addition, Continental’s
website was flooded
with comments from as far afield as the United
Kingdom.
[42]
In these circumstances, it appears that whilst Continental initially
indicated that it had acted upon complaints from the Jewish
community
in October 2012, the removal of the advertisement was subsequently
justified in correspondence since December 2012 and
in Sayer’s
answering affidavit, primarily on the basis of breach of contract by
Sweetworks. Sayer further justified the removal
of the advertisement
in his answering affidavit on the basis of Sweetworks’
non-compliance with the advertising by-laws,
the ASA code as well as
Continental’s internal policy.
[43]
Sayer emphasises in his answering affidavit that Osman is one of two
members of Sweetworks and one of six founding members
of BDSSA. He
also states that he does not express any opinion on the
Israeli-Palestinian conflict. However, he indicates that for
the
purposes of this matter, Continental caused searches to be conducted
on Wikepedia and Google on this conflict. Thus, he states
that
millions of search results are returned in relation to the phrase
“Israel’s occupation of Palestine is illegal
under
international law.” Sayer accordingly annexes to his answering
affidavit a number of printouts from Wikipedia and Google,
including
inter alia material on Israel’s settlements policy in relation
to the West Bank as well as material on Palestinian
incitement and
material on Israel’s actions towards stabilizing the conflict.
[44]
As regards the averred breach of the 2012 rental agreement, Sayer
distinguishes between two categories of clients namely, “the

client/advertiser” (which advertises its own product) and an
advertising agency, which advertises on behalf of a third party.

Continental contends that both the 2011 rental agreement concluded
with Broadway Sweets as well as the 2012 rental agreement constituted

“client/advertiser” agreements in the sense that both
these agreements were limited to the advertisement of the stipulated

brand of “Stumbo pops”.
[45]
Sayer also avers in answering papers that Hastings-Brown had no
authority to approve the advertisement and/or to amend the
2012
rental agreement, except as provided in clause 14. The applicants
contend in reply that even though no additional approval
was required
in terms of the 2012 rental agreement, Hastings-Brown effectively
approved the advertisement by her conduct. In addition,
the
applicants aver in reply that Continental is estopped from denying
the authority of Hastings-Brown.
[46]
Notwithstanding the averments by Sayer relating to a request by a
“competent authority” to remove the advertisement,
it
appears that neither the City nor the ASA acted against Continental
or made any demands or requests to Continental in relation
to the
removal of the advertisement. The City states in this respect that no
official at the City formed a view of the advertisement
and the City
did not at any stage invoke the provisions of section 9(h) of the
advertising by-laws, which prohibits any person
from erecting,
maintaining or displaying an advertising sign which is “indecent
or suggestive of indecency, prejudicial to
public morals, or is
insensitive to the public or to any religious or cultural group.”
[47]
Sayer also relies on Continental’s internal policy, which
provides inter alia that Continental
“
avoids
abuse of the privilege granted us by the residents of our community
to display our outdoor medium on public streets by averting
display
of political content, or any content that could be reasonably viewed
as offensive or controversial by any sector of the
community…
We also abide by the standards of the Advertising Standards Authority
and provide no favour in terms of adherence
to our strict policy.
Indeed in terms of our contract with the Johannesburg City Council we
are expressly forbidden from displaying
any advertising considered
contentious in nature.”
Sayer
avers in this respect that this policy “does nothing more than
consolidate the principles of the code, the by-laws,
as well as the
2012 rental agreement.” Sayer also contends in his answering
affidavit that Continental cannot as a matter
of policy carry
material, which “could reasonably be viewed as offensive or
controversial by any sector of the community”.
[48]
Sayer further justifies the removal of the advertisement on the basis
that it was not in the interests of Continental and its
shareholders
to continue to flight the advertisement. He suggests that there will
be adverse reaction if the advertisement is reinstated
and on the
basis of such anticipated reaction, he expects Continental’s
direct and indirect revenue loss to be in excess
of the sum of R300
million. Sayer further avers that Continental would be in breach of
its obligations to the City, if the advertisement
is flighted again.
[49]
As regards three of Continental’s billboard sites, which are
relevant to the present application namely, the Houghton,
Grayston
and M2 sites, Sayer states that the Houghton site, where the
advertisement was erroneously flighted on the 26
th
October
2012, has been leased by another third party since 2010. He asserts
that an advertisement was mysteriously taken from that
site at the
time when the advertisement was flighted. He further states that
there is every indication that the third party concerned
will renew
its lease for the Houghton site at the expiry of the existing lease
at the time. Similarly, Sayer states that Continental
has let the
Grayston site to a third party until the 30
th
of June
2014.
[50]
As regards the averred settlement agreement between the parties
pursuant to the communications between Ramkissoon and Osman
in March
2013, Osman admits in reply that Sweetworks and Continental
terminated their relationship with effect from the 31
st
of
May 2013, but avers that such termination did not entail the
abandonment of existing rights of Sweetworks.
[51]
As regards the averred unconstitutionality of a portion of section
9(h) of the advertising by-laws, the City has filed answering

affidavits by its Unit Head of Legal and Contracts, as well as Alwyn
Emile Nortje (“Nortje”), an advocate and Senior
Legal
Advisor of the City. Nortje in his affidavit makes a number of legal
submissions relating to the advertising by-laws and
contends inter
alia that the applicants do not have unfettered freedom of expression
by virtue of the limitations imposed by section
9(h).
[52]
Nortje also points out that in terms of section 29(2) of the
advertising by-laws, it is provided that if in the opinion of
an
authorised official of the City, any advertising sign is in conflict
with any of the requirements with the advertising by-laws,
then such
official “may” serve a notice to the owner of such sign
requiring him or her, at his or her own costs, to
remove the said
advertising sign or to take such further steps as are specified.
Section 5 of the advertising by-laws also permits
the City to
withdraw any approval granted by it or to impose a condition in
respect of such approval if an advertising sign becomes
prohibited in
terms of the advertising by-laws. However, Nortje points out that
prior to taking a decision in this respect, the
City is obliged to
notify the owner of the advertising sign of its proposed decision and
such owner can then make representations
to the City within 21 days.
[53]
Nortje further avers in relation to section 29, that it accords the
designated official of the City to make a value judgment
in its
discretion in relation to the prohibitions incorporated in section
9(h) of the advertising by-laws. Nortje contends in this
respect that
the discretion of the authorised official of the City must be
exercised objectively and “will not be readily
interfered with
by the courts”. However, he further suggests that the value
judgment in this regard does not oust the
“participation/jurisdiction”
of the courts, particularly
when a court is called upon to confirm the decision of the City, in
instances where the City seeks
an order for the removal of an
advertising sign from a court.
[54]
Nortje repeatedly states in his affidavit that no authorised official
of the City formed an opinion regarding the advertisement,
nor did
the City take any steps against Continental and/or any of the
applicants as envisaged in the advertising by-laws. Furthermore,
the
City did not invoke the provisions of sections 5, 9 or 29 referred to
by Nortje in relation to the advertisement.
[55]
Whilst Nortje asserts that the City is neutral in relation to the
contractual dispute in this matter he also contends that
if
Continental justifiably removed the advertisement, there can be no
allegation of a constitutional right to freedom of expression
within
the ambit of a contract between private parties.
LEGAL
ISSUES
[56]
An issue, which has to be determined at the outset, relates to
whether there was a settlement agreement between Sweetworks
and
Continental, which extinguished the contractual rights of Sweetworks.
If this aspect is determined in favour of Sweetworks,
the primary
issue in the context of the contractual dispute between Sweetworks
and Continental is whether the removal of the advertisement
by
Continental was justified in terms of the 2012 rental agreement. This
issue is of course inextricably linked to whether Sweetworks
was in
breach of the said agreement, as averred by Continental.
[57]
A further related broad issue both within the ambit of the
contractual dispute as well as the defences raised by Continental

relates to whether Continental was justified in removing the
advertisement on the basis of the advertising by-laws, the ASA code

and Continental’s internal policy.
[58]
A separate issue outside the ambit of the averred contractual breach
by either Streetworks or Continental is whether the removal
of the
advertisement was unlawful and invalid in terms of section 16 of the
Constitution on the basis of an averred infringement
of the
applicants’ constitutional right to freedom of expression.
[59]
In the event that the above aspects are determined in favour of the
applicants, a further issue is whether it is appropriate
in the
circumstances of this case for the court to grant specific
performance against Continental, as requested by the applicants.
[60]
A final issue in this matter vis-à-vis the City relates to the
averred constitutional invalidity of section 9(h) of
the advertising
by-laws.
[61]
It may be mentioned in relation to all the above issues that
Continental’s counsel averred that there were numerous material

disputes of fact on the papers, including at the very least, disputes
of fact relating to the whether the 2012 agreement was limited
to one
brand of sweets and whether there was a settlement agreement between
the parties.
[62]
I shall deal with the averred disputes of fact in the context of each
of the broad issues identified above. Suffice it to state
at this
stage that it is, of course, well established in our law, that a
final order in motion proceedings can generally only be
granted, on
the basis of material facts stated by the applicant which have been
admitted by the respondent, unless the facts stated
by the respondent
are so far-fetched or clearly untenable that the court is justified
in rejecting them merely on the papers.
[1]
I am also cognizant in this respect that the court should generally
refrain from making findings on the basis of probabilities
in motion
proceedings in the face of any conflict of facts on the papers.
[63]
It may also be mentioned as a preliminary point that Continental
denies that BDSSA has standing to institute the present application

in relation to the contractual dispute in this matter by virtue of
the fact that BDSSA is not a party to any contract with Continental.

In addition, the applicants’
locus
standi
in
respect of their constitutional claims against Continental is also
disputed. To the extent that the applicants’ case is
premised
upon the constitutional right to freedom of expression, it is my view
that both applicants have sufficient interest in
these
proceedings.
[2]
This is
particularly so as
locus
standi
in
terms of section 38(d) of the Constitution can simply be premised
upon the public interest in the constitutional right to freedom
of
expression.
Settlement
agreement
[64]
As regards the averred settlement agreement, it is not in dispute, as
recorded in the letter from ENS to LRC on the 2
nd
of April
2013, that Streetworks and Continental had agreed that the 2012
rental agreement would not be renewed. However, Ramkissoon
states
that on the 18
th
of March 2013 Osman telephonically
accepted Continental’s initial proposal to terminate their
relationship on the basis that
all rights and obligations between the
parties would also be extinguished. Be that as it may, it is not in
dispute that coincidentally
on the same day, the 18
th
of
March 2013, LRC sent a letter of demand calling upon Continental to
re-flight the advertisement within 14 days.
[65]
In these circumstances, the correspondence from Ramkissoon to Osman
is undisputed on the papers. It is also common cause that
by mutual
agreement the parties agreed in March 2013 to terminate the 2012
rental agreement with effect from the 31
st
of May 2013.
The only issue is whether Osman telephonically agreed on or about the
18
th
of March 2013 to abandon Sweetworks’ rights,
which accrued prior to the termination of the 2012 rental agreement,
as averred
in the answering papers.  Ramkissoon, a lawyer,
conveyed three possible options of an offer of settlement to Osman,
who is
apparently not legally trained on the 11
th
of
December 2012, on which date Ramkissoon also sent another two and a
half page letter to Sweetworks averring inter alia that
Continental
was obliged to remove the advertisement on the basis of the
advertising by-laws. As it turned out, the City did not
compel
Continental to remove the advertisement as averred by Ramkissoon. Be
that as it may, Osman indicates in reply that when
he spoke to
Ramkissoon on the 18
th
of March 2013, more than three
months later, he simply conveyed to Ramkissson Sweetworks’
intention to terminate the 2012
rental agreement with effect from the
31
st
of March 2013. However, he denies that he abandoned
any of Streetworks’ legal rights at the time.
[66]
Ramkissoon only confirmed the telephonic conversation, which he had
with Osman on the 18
th
of March 2013, in a subsequent
letter dated the 26
th
of March 2013. By that stage LRC’s
letter of demand dated the 18
th
of March 2013 had already
been sent. Thus, Ramkissoon, as a lawyer, made an offer of settlement
involving the termination of the
2012 rental agreement to Sweetworks
as part of two letters dated the 11
th
of December 2012.
Sweetworks did not accept the said offer for more than three months.
Osman, who appears not to be a lawyer, then
accepted the offer
relating to the termination of the 2012 rental agreement, on behalf
of Sweetworks, on the 18
th
of March 2013, the very day
that LRC sent a letter of demand to Continental.
[67]
Significantly, on the 26
th
of March 2013 (after the letter
of demand from LRC had been sent) Ramkissoon advised Osman inter alia
that:
“
Continental
shall not have any further obligations to Sweetworks in respect of
any advertisement/artworks and shall not be obliged
to flight any
advertisements/artworks other than those already flighted…”
Thus,
it appears that even Ramkissoon acknowledged at that stage that in
light of the non-renewal of the 2012 rental agreement,
the parties
would not be obliged to flight any advertisement “other than
those already flighted”. More importantly,
in light of the
letter from LRC, Osman could not have unequivocally abandoned
Sweetworks’ legal rights. In these circumstances,
the papers
tenably demonstrate the survival of the averred legal rights of
Streetworks beyond the termination of the 2012 rental
agreement and
the “settlement agreement” between the parties relating
to the termination of the 2012 rental agreement
clearly did not
incorporate the extinction of Streetworks accrued rights.
Contractual
breach by Sweetworks
[68]
As indicated above, Continental contends that Sweetworks breached the
2012 rental agreement at a number of levels. At a general
level, it
is averred that Sweetworks was not entitled to place the
advertisement with Continental as the said agreement only permitted

the advertisement of one brand, which was stipulated in the previous
2011 rental agreement. It is accordingly averred that as the
2012
rental agreement constituted a “client/advertiser”
agreement (as opposed to an advertising agency agreement),
Sweetworks
was not entitled to place advertisements on behalf of BDSSA, a third
party. In addition, Continental contends that to
the extent that the
advertisement did not constitute a brand stipulated in the 2012
rental agreement, Sweetworks required the additional
approval of
Continental for the advertisement.
[69]
Continental’s averments in this respect are not supported by
the actual terms of the 2012 rental agreement. It is significant
in
this context that whilst the previous 2011 rental agreement (for the
period October 2011 to September 2012) specifically refers
to “Stumbo
pops” as the brand, the 2012 rental agreement (for the period
March 2012 to May 2013) does not stipulate
any brand. As indicated in
this respect, the latter agreement merely states in relation to the
brand “Sweetworks Advertising
Agency – renewal”.
There is also no provision in the 2012 agreement for the additional
approval by Continental in relation
to advertisements other than the
stated brand, as suggested by Continental.
[70]
It is further significant that the two agreements overlap for a
certain time and do not immediately follow each other in time.
Thus,
to the extent that the two agreements operated simultaneously for a
few months, it is my view that Continental’s averments
relating
to both agreements being limited to the same product were untenable.
Furthermore, to the extent that Broadway Sweets and
Sweetworks are
two separate corporate entities, which concluded two separate
agreements with Continental, both agreements cannot
be conflated as a
matter of law, despite the fact that the 2012 agreement is described
as a renewal.
[71]
I was also not persuaded that there were any relevant surrounding or
background circumstances in relation to the stated brand
in the 2011
agreement, which sustains the submissions by Continental to the
effect that the 2012 rental agreement was limited to
the Stumbo
lollipop brand.
[72]
For all the reasons given, it appears from the undisputed factual
averments relating to the terms of the 2012 rental agreement
that
Sweetworks was not in breach of any of the clear terms of the 2012
rental agreement, nor was there any obligation on the part
of
Sweetworks to obtain “additional approval” from
Continental in terms of the said agreement for the advertisement.
[73]
Whilst it is not strictly necessary for me to determine whether the
Continental’s averred “additional approval”
of the
advertisement was in fact obtained by Sweetworks, I am also of the
view that there is considerable merit in the submission
by the
applicants’ counsel that Sweetworks effectively obtained the
additional approval suggested by Continental pursuant
to
communications between Osman and Hastings-Brown relating to the
“community campaign”.
[74]
I also find the assertion in the answering papers to the effect that
Hastings-Brown “took no notice of the content of
the
advertisement” to be untenable in the circumstances, as it is
not disputed that she received, read and forwarded the
email
containing the advertisement.
[75]
Continental further contended that Sweetworks was also in breach of
the agreement with respect to the warranties incorporated
in clause 7
of the 2012 rental agreement. Whilst I deal with the specific
provisions of advertising by-laws relied upon by Continental
as well
as the specific provisions of the ASA code separately hereunder, it
may be mentioned that clause 12 of 2012 rental agreement
only permits
Continental to remove an advertisement in the event that any
“competent authority” lawfully required Continental
to do
so. It is common cause that no competent authority required
Continental to remove the advertisement in the present,
notwithstanding
the suggestion in the correspondence from Ramkissoon.
Furthermore, clause 7.3 of the 2012 rental agreement does not permit
Continental
to remove the advertisement unilaterally, even if
Continental was satisfied that the advertisement constituted a
prima
facie
breach of any of the warranties relating to the advertising
by-laws and/or the provisions of the ASA code. This is obviously so

as it is clearly provided in clause 7.3 that Continental “may
decline to authorise Artwork” until the advertiser is
able to
satisfy Continental to the contrary. Logically, Continental could
accordingly only decline to flight an advertisement or
impose
conditions in terms of clause 7.3 an advertisement before it is
flighted and not afterwards, as in the present case.
[76]
Continental also justifies the removal of the advertisement on the
basis of the contract between Continental and the City.
However, the
City states in this regard that no authorised official or the Council
of the City formed an opinion at the relevant
time relating to the
advertisement, nor did the City require Continental to remove the
advertisement on the basis of an agreement
between Continental and
the City.
[77]
In the final analysis in this regard, the 2012 rental agreement does
not provide a legal basis for the removal of the advertisement,
nor
was Continental required by a “competent authority” to
remove the advertisement, as stated in the correspondence
of
Ramkissoon prior to the institution of proceedings. Moreover, as
already mentioned, even if Continental was of the view that
there was
a
prima facie
breach of one of the warranties in terms of
clause 7 of the 2012 rental agreement, and in the absence of a
“competent authority”
requiring Continental to remove the
advertisement (as envisaged in clause 12), then Continental was
obliged to give Streetworks
notice to remedy the breach in terms of
clause 13.
Constitutional
rights within the framework of the rental contract
[78]
The applicants contend in this context that the removal of the
advertisement constitutes an infringement of their constitutional

right to freedom of expression. Continental contends, on the other
hand, that freedom of expression has no application in the
circumstances of the present case, simply by virtue of the fact that
Continental, as a private entity, does not owe any duty to
the
applicants in relation to the constitutional right to freedom of
expression. Thus, it is contended that unlike the enforcement
of
constitutional rights against the State (which has a duty “to
respect, protect, promote and fulfill”
[3]
the rights enshrined in the Constitution), the applicants cannot
enforce their constitutional right to freedom of expression against

Continental, as a private entity.
[79]
It is correct that the positive obligation to enforce Constitutional
rights horizontally between private entities is not analogous
to the
positive duty owed by organs of State such as, for example, a
national television broadcaster, which may be obliged for
example to
permit an appropriate platform for freedom of speech.
[4]
As such, the full extent of the positive obligation imposed upon the
State (including, of course legislation passed by the executive)
to
“respect, protect, promote or fulfill” constitutional
rights cannot always be extended to private entities such
as
Continental.
[80]
In the case of
Juma Musjid
, the Constitutional Court held in
relation to the infringement of constitutional rights by a person
other than the State as follows:
“
This
Court, in
Ex
Parte Chairperson of the Constitutional Assembly:
In
re Certification of Court of the Republic of South Africa,
made
it clear that socio-economic rights (like the right to a basic
education) may be negatively protected from improper invasion.
Breach
of this obligation occurs directly when there is a failure to respect
the right, or indirectly, when there is a failure
to prevent the
direct infringement of the right by another or a failure to respect
the existing protection of the right by taking
measures to diminish
that protection.”
[5]
Thus,
the court went on to say that in applying constitutional rights,
private entities “are not to interfere with or diminish
the
enjoyment of that right”. The court also indicated that the
negative duty imposed on a private entity not to impair existing

constitutional rights depends on the “intensity” of the
right. Thus, even though a private entity does not have the
positive
duty or obligation to “promote, protect and fulfill” the
constitutional rights of another private entity in
the same way as
the State, I agree with counsel for the applicants that Continental
has the negative duty not to interfere with
the platform provided to
the applicants to freely express certain facts and/or views (within
the framework of the 2012 rental agreement)
and “to respect”
the existing protection of the applicants’ constitutional right
in this respect.
[81]
As regards the “intensity” of the right of freedom of
expression compared to the right to basic education referred
to in
the
Juma Musjid
case, the Constitutional Court has repeatedly
acknowledged the importance of freedom of expression in a democratic
society. Thus,
Kriegler J in
S v Mamabolo,
stated as follows:
“
Freedom of
expression, especially when gauged in conjunction with its
accompanying fundamental freedoms, is of the utmost importance
in the
kind of open and democratic society the Constitution has set as our
aspirational norm. Having regard to our recent past
of thought
control, censorship and enforced conformity to governmental theories,
freedom of expression – the free and open
exchange of ideas –
is no less important than it is in the United States of America….
Therefore, we should be particularly
astute to outlaw any form of
thought control, however respectably dressed.”
[6]
More
recently, Davis J in the case of
City of Cape Town v Ad Outpost
(Pty) Ltd and others
held that:
“
Whatever
the role of such speech within a deliberative democracy envisaged by
our Constitution, it is clear that advertising falls
within the
nature of expression and hence stands to be protected in terms of s
16(1) of the Consitution.”
[7]
[82]
The Constitutional Court has further pronounced in the case of
Print
Media South Africa
case that the right to freedom of expression
embraces:
“…
liberty
to express and to receive information or ideas freely. The right also
encompasses the freedom to form one’s own opinion
about
expression received…”
[8]
[83]
To the extent that that Continental seeks to enforce section 9 (h) of
the advertising by-laws on the basis of the warranties
incorporated
in section 7 of the rental agreement, I deal with the
constitutionality of section 9(h) of the advertising by-laws
below.
Suffice it to mention at this juncture in this regard that the
Supreme Court of Appeal has held in the case of
Bredenkamp v
Standard Bank of SA Ltd
, in relation to enforcing a term of a
contract which implicates an identified constitutional value that:
“
The public
policy considerations that apply at the enforcement stage are no
different from those that apply at the first stage :
is the
limitation of the identified constitutional value – the right
of access to courts – fair and reasonable in the
circumstances?
[E]nforcement of
a
prima
facie
innocent
contract may implicate an identified constitutional value. If the
value is unjustifiably affected, the term will not be
enforced. An
example would be where a lease provides for the right to sublease
with the consent of the landlord. Such a term is
prima facie
innocent. Should the landlord attempt to use it to prevent the
property being sublet in circumstances amounting to
discrimination
under the equality clause, the term will not be enforced.”
[9]
[84]
Taking all the above
dicta
into account, Continental clearly
has a negative duty to respect the fundamental right of free speech
of the applicants, indirectly
through the platform of the 2012 rental
agreement. Whilst it is not in dispute in this context that
Sweetworks is obliged to warrant
compliance with the advertising
by-laws in terms of the said agreement, such by-laws cannot also be
enforced to the extent that
they are inconsistent with the section 16
of the Constitution. I deal with the constitutionality of the
impugned section of these
by-laws below.
The
requirements of the ASA code
[85]
Whilst Continental also suggests that it was required to remove the
advertisement on the basis of the provisions of the ASA
code, it is
common cause on the papers that neither the ASA, nor any other
“competent authority” took any steps to
have the
advertisement removed. To the contrary, Continental confirms that the
ASA was unable to express an opinion on the advertisement.
Similarly,
the City confirms that it received no complaints in relation to the
advertisement. Furthermore, the City repeatedly
asserts that no
official at the City formed a view or took any action in respect of
the advertisement.
[86]
The introductory part of the ASA code incorporating inter-alia the
preamble and scope of the ASA code (which is also referred
to in
Sayer’s answering affidavit) provides in section 2.4 that
“Controversial subjects/Advocacy” advertisements,
which
express an opinion on a controversial subject, shall not be subject
to the provisions of the ASA code relating to misleading
claims,
except that advertisements containing such controversial statements
should:
“
·
be readily recognizable as advertisements;
·
cause no confusion as to the identity or status of the
advertisement.”
[87]
Section 1.1 of the ASA code provides that no advertisement may
“…
offend
against good taste or decency or be offensive to public or sectoral
values and sensitivities, unless the advertising is reasonable
and
justifiable in an open and democratic society based on human dignity,
equality and freedom.”
Section
1.2 further provides inter alia that:
“
Advertisements
should contain nothing that is likely to cause serious or wide-spread
or sectoral offence. The fact that a particular
…advertisement
may be offensive to some is not itself sufficient grounds for
upholding an objection to an advertisement….”
[88]
Section 2 of the ASA code, relating to honesty in advertising, which
is also relied upon by Continental in answering papers,
provides
that:
“
Advertisements
should not be so framed as to abuse the trust of the consumer or
exploit his lack of experience or knowledge or his
credulity.”
[89]
Section 4 of the ASA code, relating to truthful presentation in
advertising, is also referred to in the answering affidavit
in
relation to the advertisement. Section 4.1 provides inter alia that
before advertising is published, advertisers “shall”
hold
in their possession documentary evidence to substantiate their
claims, objectively. Similarly, section 4.2 provides inter
alia that
advertising must not contain misleading claims, which are inaccurate
or exaggerated. Section 4.2.2 permits value judgments
as well as
matters of opinion in advertisements if it is clear that an opinion
is being expressed. Section 4.2.3 permits inter
alia hyperbole in the
form of harmless parody. Section 4.2.4 provides that expert opinion
must be substantiated by independent
evidence.
[90]
It may also be mentioned at a general level that the papers include a
ruling of the ASA in relation to a complaint considered
by the ASA in
an unrelated matter. It is correctly stated in the said ruling that
various committees of the ASA recognise the Constitution
as the
supreme law of our country. Consequently, it is on record that the
ASA is compelled to give effect to the fundamental values
of the
Constitution, and to impose limitations on the basis of the values of
an open and democratic society, based on human dignity,
equality and
freedom, as envisaged in the Constitution.
[10]
[91]
To the extent that the advertisement is “controversial”
as envisaged in the ASA code, I am satisfied that it is
readily
recognizable as an advertisement and causes no confusion that BDSSA
is the advertiser.
[92]
As to the provisions of the ASA code relied upon by Continental, it
is not in dispute that the directorate of the ASA did not
receive any
objections to the advertisement, and accordingly did not consider or
investigate any complaint as prescribed in the
ASA code.
[11]
Therefore, it is common cause that no sanctions were imposed by the
ASA against Continental. To the extent that it is suggested
that
there were objections in relation to the advertisement, section 1 of
the ASA code provides that a complaint that an advertisement
is
“offensive to some” is not sufficient grounds for
upholding an objection. Moreover, to the extent that the maps

incorporated in the advertisement are based on fact, it appears that
the advertisement does not exploit the knowledge or credulity
of the
consumer, as envisaged in section 2 of the code. In any event, the
maps and the statements in the advertisement are capable
of objective
substantiation in the form of the findings of the ICJ, as
contemplated in section 4.1. As such, to the extent that
the
advertisement is substantiated by independent evidence, it is also
not misleading as contemplated in terms of section 4.2.
[93]
In these circumstances, the advertisement does not contravene the
provisions of the ASA code relied upon by Continental, nor
was
Continental required to remove the advertisement on the basis of any
averred contravention of the ASA code.
Continental’s
internal policy
[94]
As regards the suggestion in the answering papers that Continental’s
internal policy constituted a basis for the removal
of the
advertisement, applicant’s counsel correctly averred that such
policy has no application in the circumstances of the
present case.
This is particularly so as the warranties and indemnities in clause 7
of the 2012 rental agreement do not extend
to compliance with
Continental’s internal policy. In any event, even if the
advertisement is deemed to be “contentious”
on the basis
of Continental’s internal policy, the 2012 rental agreement
does permit the removal of the advertisement by
Continental on the
basis of such policy.
Specific
performance
[95]
Continental asserted in answering papers that it is not appropriate
to order specific performance in the circumstances of this
case inter
alia by virtue of the fact that the three sites relevant to this
application were not available when Sayer signed his
answering
affidavit in June 2013. As such, it is averred that it would be
impossible for Continental to comply with a court order
in relation
to the said three sites, including the Houghton site. The court is
accordingly called upon to exercise its discretion
against the
granting of specific performance as it is contended that the effect
of any order granted by the court would be to induce
undue hardship
on Continental. During argument counsel for the applicants placed on
record that the applicants would accept any
“comparable”
alternative site for the purposes of the requested relief for
specific performance, as envisaged in clause
6.3.1 of the agreement.
[96]
Continental’s counsel also emphasised that in view of the
assertion in the founding affidavit that BDSSA had successfully

publicised its campaign through other billboards, it can hardly be
suggested that BDSSA has no other means to publicise its campaign.
[97]
The undue hardship alluded to in Sayer’s affidavit was
apparently based upon complaints from the Jewish community and
an
expected loss of revenue in the future. However, the suggestions in
this respect are not supported with any evidence in the
answering
papers. Sayer further indicates that at the time he signed his
answering affidavit in June 2013, there was impossibility
of
performance at the Houghton site on the 31
st
of July 2013
(when he signed his answering affidavit) as there was every
indication at the time that a third party, who had an
existing lease
with Continental relating to the Houghton site would have renewed its
lease for the Houghton site.
[98]
Our law relating to specific performance is clear in the sense that
specific performance will generally only be granted subject
to the
court’s discretion. The
locus classicus
is the judgment
of Innes J in
Farmers’ Co-op Society (Reg) v Berry
1912
AD 343
at 350 in which the court stated
“
Prima
facie
every
party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from the other party,
so
far as it is possible, a performance of his undertaking in terms of
the contract. As remarked by KOTZE, C.J., in
Thompson
v Pullinger
(1
O.R., at p. 301), ‘the right of a plaintiff to the specific
performance of a contract where the defendant is in a position
to do
so is beyond all doubt.’ It is true that Courts will exercise a
discretion in determining whether or not decrees of
specific
performance should be made. They will not of course, be issued where
it is impossible for the defendant to comply with
them. And there are
many cases in which justice between the parties can be fully and
conveniently done by an award of damages.
But that is a different
thing from saying that a defendant who has broken his undertaking has
the option to purge his default by
the payment of money. For in the
words of
Storey
(Equity Jurisprudence,
Sec.
717(a)), ‘it is against conscience that a party should have a
right of election whether he would perform his contract
or only pay
damages for the breach of it.’ The election is rather with the
injured party, subject to the discretion of the
Court.”
[12]
[99]
Therefore, in the absence of evidence from Continental, it is not for
the applicants to prove that there are no impediments
to specific
performance.
[13]
The only
inference in these circumstances is that Continental can perform, if
not at the Houghton site then at a comparable or
alternative site in
Johannesburg as envisaged in clauses 6.2.2 and 6.3.1 of the 2012
rental agreement in the event that the site
“specified”
in the rental agreement not being available. As already noted in this
respect, Continental states in this
regard that it has some 2400
sites in the country.
[100]
It does not avail Continental to rely on other billboards which BDSSA
may have access to at other sites, as counsel for the
applicants
appropriately drew the analogy in this regard of a hotel refusing
access to a guest on the basis of an unconstitutional
ground of
discrimination and referring the guest concerned to another hotel
which did not discriminate in this way.
[101]
As regards the time period for specific performance, it is not in
dispute that the term of the 2012 rental agreement was from
the 1
st
of March 2012 until the 31
st
of May 2013. However, it
appears that whilst the said agreement provided that rental was to be
paid on a monthly basis, the period
for an advertisement on a
particular billboard is not stipulated. Thus, whilst the schedule to
the agreement makes reference to
billboards, which would be rented
out for twelve months of the contract, the said schedule does not
stipulate the period of display
of each advertisement. Counsel for
the applicants correctly conceded in this regard that the reference
in the papers to another
advertisement for an unrelated product for a
period of three months does not really assist the court. Be that as
it may, in view
of the fact that the 2012 rental agreement provided
for rental on a monthly basis and in view of the fact that billboards
at different
sites were apparently allocated for twelve months from
the 1
st
of March 2012, it can reasonably be inferred that
Sweetworks was entitled to rent the billboard for the advertisement
for at least
one month.
The
constitutionality of section 9(h)
[102]
As already indicated, to the extent that any future advertisements
similar to the advertisement fall within the ambit of section
9(h) of
the advertising by-laws, the applicants contend that the said section
is unconstitutional and accordingly infringes their
constitutional
right to freedom of expression. In argument, applicants’
counsel only challenged a portion of the said section,
and not the
section in its entirety.
[103]
Part B of schedule 5 of the Constitution includes “billboards
and the display of advertisements in public places”
as matters
of local government falling within the competence of municipalities
such as the City. Thus, it is not in dispute that
the City has the
necessary authority to regulate outdoor advertising by means of
by-laws. Section 8(1) of the Constitution further
provides that :
“
The Bill
of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.”
Therefore,
the advertising by-laws can limit the rights entrenched in the
Constitution only on the basis contemplated in the Constitution.
[104]
Section 9(h) of the advertising by-laws provides as follows:
“
In
addition to any other prohibition, expressed or implied, in these
By-laws, no person may erect, maintain or display any advertising

sign which is indecent or suggestive of indecency, prejudicial to
public morals, or is insensitive to the public or any portion
thereof
or to any religious or cultural group.”
[105]
As indicated, the applicants do not challenge the above subsection in
its entirety in these proceedings. They aver only that
the words “or
is insensitive to the public or any portion thereof or to any
religious or cultural group” is inconsistent
with section 16 of
the Constitution.
[106]
Section 16 of the Constitution, provides as follows:
“
16.
(1) Everyone has the right to freedom of expression, which includes -
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to –
(a)
propaganda for war;
(b)
incitement of imminent violence;
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[107]
All constitutional rights, including the right to freedom of
expression, may be limited by legislation, if such limitation
is
justified in terms of section 36(1) of the Constitution on the basis
of the values of an open and democratic society based on
human
dignity, equality and freedom. Any limitation must achieve benefits,
which are in proportion to the costs of limitation.
In the present
case, section 16(2) of the Constitution also incorporates its own
internal limitations to the right to freedom of
speech. Thus, as
already stated, freedom of speech cannot extend to propaganda for
war, incitement of imminent violence or advocacy
of hatred based on
race, ethnicity, gender or religion. It may also be mentioned that
neither Continental nor the City suggests
in these proceedings that
the advertisement falls within the ambit of one of the above
exceptions of section 16(2).
[108]
As already stated, the Constitutional Court has repeatedly
acknowledged the importance of the fundamental right of freedom
of
speech. Thus, it has been stated that freedom of expression “lies
at the heart of democracy”.
[14]
More recently, in the case of
Print
Media
,
the Constitutional Court held that freedom of expression
“…
promotes
and protects the moral agency of individuals. Whether expression lies
at the right’s core or margins, be it of renown
or notoriety,
however essential or inconsequential it may be to democracy, the
right cognises an elemental truth that it is human
to communicate,
and to that fact the law’s support is owed.”
[15]
[109]
In the
Islamic Unity
case, the Constitutional Court also
endorsed the freedom to express offensive, shocking or disturbing
speech on the basis of case
authority from the European Court of
Human Rights:
“
South
Africa is not alone in its recognition of the right to freedom of
expression and its importance to a democratic society…
In
Handyside v The United Kingdom
, the European Court of Human
Rights pointed out that this approach to the right to freedom of
expression is -
‘
applicable
not only to “information” or “ideas” that are
favourably received or regarded as inoffensive
or as a matter of
indifference, but also to those that offend, shock or disturb….Such
are the demands of that pluralism,
tolerance and broadmindedness
without which there is no ‘democratic society’.”
[16]
Therefore,
this view accords with the famous maxim attributed to the French
philosopher, Voltaire:
“
I
disapprove of what you say, but I will defend to the death your right
to say it.”
[17]
[110]
Whilst it is common cause that the City has not invoked the
provisions of section 9(h) of the advertising by-laws in relation
to
the advertisement, the City nevertheless challenges the submissions
by the applicants relating to the averred unconstitutionality
of the
impugned portion of the said section. The City emphasises in this
respect that an authorised official of the Council must
determine and
enforce the provisions of section 9(h) on the basis of the City’s
discretion in this regard. It is also contended
that it is not so
much the wording of the impugned portion of section 9(h), which
“justify any allegation of unconstitutionality
but rather the
implementation thereof.”
[111]
Irrespective of the purport and intent of the City in opposing the
relief sought by the applicants in this respect, it is
clear that
“insensitivity” to a portion of a religious or cultural
group referred to in section 9(h) (which it is suggested
applies to
the present case) sets a far lower boundary than any of the specific
limitations in section 16(2) of the Constitution.
Stated in another
way, the limitations in sections 16(2) as well as 36(1) of the
Constitution go far beyond the notion of “insensitivity”

towards a portion of a religious or cultural group. In any event,
unlike the limitations to free speech in section 16(2) including

propaganda for war, incitement of imminent violence, or advocacy of
violence against a particular race or religion, and unlike
the other
limitations in section 9(h), suggestive of indecency or prejudicial
to public morals, “insensitivity” in
my view is a
manifestly subjective feeling. Therefore, some members of a
particular religious or cultural group may subjectively
feel or not
feel that certain expressions of speech are “insensitive”.
In these circumstances, I agree with counsel
for the applicants that
expression must reach the level of one of the categories in section
16(2) of the Constitution (or the unchallenged
portions of section
9(h) of the advertising by-laws), before such expression can be
prohibited by legislation or a by-law. Therefore,
even if the
advertisement is “controversial” as suggested by Sayer
and Nortje, it can only be prohibited on the basis
of one of the
constitutional limitations. In any event, the expression, which is
being defended by the applicants, is based on
substantiated facts.
[112]
Against this background, section 172(1)(a) of the Constitution
provides that:
“
When
deciding a constitutional matter within its power, a court -
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency.”
[113]
In these circumstances, Nortje’s averment to the effect that
the value judgment relating to the criteria set out in
section 9(h)
falls within the discretion of the authorised official of the City is
misdirected. This court is compelled to declare
any law, which is
inconsistent with the Constitution to be invalid to the extent of
such inconsistency. Similarly, Nortje’s
averments pertaining to
the procedure to be followed in relation to a contravention of the
advertising by-laws are also misdirected.
[114]
In the final analysis, the words “or is insensitive to the
public or any portion thereof or to any religious or cultural
group”
in section 9(h) of the advertising by-laws go beyond the limitation
of permitted free speech in the Constitution and
are accordingly
inconsistent with the Constitution. As already indicated,
“insensitivity” to the public or a portion
thereof
(unlike other criteria stipulated in section 9(h) such as “indecency”
or “ prejudicial to public morals”)
is a manifestly
subjective notion and cannot be objectively valued, as suggested by
Nortje. Thus, even if the impugned portion
of section 9(h) is
declared to be invalid, the remainder of the criteria set out in
section 9(h) is still capable of regulating
advertisements, which are
suggestive of indecency or prejudicial to public morals. As already
indicated in this respect, both Continental
and the City only suggest
non-compliance with the impugned portion of section 9(h) and not with
the remainder of the provisions
of section 9(h) relating to indecency
and public morals.
CONCLUSIONS
[115]
For the reasons given, the removal of the advertisement by
Continental from the Houghton site was in breach of the 2012 rental

agreement and also constituted an infringement of the applicants’
constitutional right to freedom of expression.
[116]
Specific performance is an appropriate remedy in the circumstances of
this case.
[117]
The words “or is insensitive to the public or any portion
thereof or to any religious or cultural group” in section
9(h)
of the advertising by-laws are inconsistent with section 16 of the
Constitution.
COSTS
[118]
As regards costs, the applicants have been substantially successful
against both the respondents and costs must follow the
result.
ORDER
[119]
Based on the aforegoing, the following order is made:
I
It is declared that the removal of the applicants’
advertisement entitled “the Palestine Campaign”
(hereinafter
referred to as “the advertisement”) by the
first respondent on or about the 29
th
of October 2012 was
unlawful and unconstitutional.
II
The first respondent is directed to reinstate the advertisement on
the billboard erected by the first respondent alongside the
highway
near Empire Road on the M1 N or to allocate to the applicants a
comparable, alternative billboard erected by the first
respondent at
a comparable site, within 10 days of the date of this order and to
maintain the advertisement for a continuous period
of 30 days,
against payment of the agreed rental by the second applicant in terms
of the rental agreement between the second applicant
and the first
respondent, concluded on the 27
th
of February 2012.
III
(i) It is declared that the words “or is insensitive to the
public or any portion thereof or to any religious or cultural
group”
in section 9(h) of the Outdoor Advertising By-Laws of the second
respondent promulgated in the Provincial Gazette
Extraordinary Number
227 on the 18
th
of December 2009 are inconsistent with the
Constitution and accordingly invalid.
(ii)
The declaration of invalidity in paragraph (i) above is suspended for
a period of 12 months to enable the second respondent
to amend
section 9(h) to render it consistent with the Constitution.
(iii)
During the period of suspension, section 9(h) shall be read as if the
words “or is insensitive to the public or any
portion thereof
or to any religious or cultural group” did not appear in the
said section.
(iv)
In the event that the second respondent fails to amend section 9(h)
within a period of 12 months from the date of this order,
section
9(h) shall be effective without the words “or is insensitive to
the public or any portion thereof or to any religious
or cultural
group”.
IV
The first and second respondents, jointly and severally, the one
paying the other to be absolved, are directed to pay the applicants’

costs.
DATED
AT JOHANNESBURG THIS 11
th
DAY OF SEPTEMBER 2014
MAYAT
J
JUDGE
OF THE HIGH COURT
OF
SOUTH AFRICA
Counsel for
the Applicants : Jason Brickhill
Frances Hobden
Attorneys
for the Applicants : Legal Resources Centre
Counsel
for the First Respondent : Alan J Eyles
Ian
B Currie
Attorneys
for the First Respondent : Edward Nathan & Sonnenberg Inc
Counsel for
the Second Respondent : Shaun Mitchell
Attorneys for
the Second Respondent: Lennon Molefe & Partners
Date of
Hearing : 1
st
of September 2014
Date of
Judgment : 11
th
of September 2014
[1]
The general rule as stated in the case of
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
has
been followed and applied in numerous cases, such  as for
example the often quoted dicta in the case of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A) at 634
[2]
See for example
Levine
v Ferreira NO and others
1996
(1) SA 984
(CC) and
Vryenhoek
and others v Powell NO and others
1996
(1) SA 984
(CC)
[3]
section 7(2) of the Constitution
[4]
See the case of
VGT
(Verein
gegen Tierfabriken v Switzerland)
(2002) 34 EHRR in which a Swiss television broadcaster declined to
broadcast an advertisement against experiments with animals
and
industrial animal production. The European Court of Human Rights
found that a ban of an advertisement by an association dedicated
to
the protection of animals was an unjustifiable violation by the
state of an advertiser’s right to freedom of expression
[5]
Governing
Body of the Juma Musjid Primary School and another v Essay N.O and
others
2011(8) BCLR 761 (CC) at para 58
[6]
2011(8) SA BCLR 761 (CC) para 37
[7]
2000(2) SA 733 (C) at p749E
[8]
Print
Media South Africa and Another v Minister of Home Affairs and
Another
2012
(6) SA 443
(CC) at para 53
[9]
2010 (4) SA 468
(SCA) at paras 46 and 47
[10]
As recognised in many cases including
National
Coalition for Gay and Lesbian Equality and Another v The Minister of
Justice and others
1998
(12) BCLR 1517
(CC)
[11]
As prescribed in section 8 of the section on “Procedures and
Remedies” of the code
[12]
at 350
[13]
Tamarillo
(Pty) Ltd v BN Aitken (Pty) Ltd
1982
(1) SA 398
(A) 442B-443F
[14]
South
African National Defence Union v Minister of Defence and others
1999(4)
SA 469 (CC) at para 7
[15]
Print
Media South Africa and another v Minister of Home Affairs and other
2012
(6) SA 443
(CC) at para 53
[16]
Islamic
Unity Convention v The Independent Broadcasting Authority and others
[2002] ZACC 3
;
2002
(4) SA 294
(CC) at para 28
[17]
In fact, these words are a later summary of Voltaire’s
attitude to the condemnation by the French Parliament to publicly

burn the book
De
l’esprit
published
in 1758 by the French philosopher Helvetius, as given in S.G.
Tallentyre’s
The
Friends of Voltaire
(1907)