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[2013] ZASCA 46
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Independent Outdoor Media (Pty) Ltd and Others v City of Cape Town (222/2012) [2013] ZASCA 46; [2013] 2 All SA 679 (SCA) (28 March 2013)
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THE SUPREME COURT OF APPEALOF
SOUTH AFRICA
JUDGMENT
Case No:
222/2012
Reportable
In
the matter between:
INDEPENDENT OUTDOOR MEDIA (PTY) LTD
....................................
First
Appellant
CHEVRON SOUTH AFRICA (PTY) LTD
..........................................
Second
Appellant
FORMID TRIO CC
.................................................................................
Third
Appellant
ROXBURGH BODY CORPORATE
....................................................
Fourth
Appellant
THE ANGLICAN CHURCH OF SOUTH AFRICA
(DIOCESE OF CAPE TOWN)
................................................................
Fifth
Appellant
BURNSIDE COURT (PTY) LTD
...............................................................
Six
Appellant
LSG LUFTHANSA SERVICE CAPE TOWN (PTY) LTD
.................
Seventh Appellant
INKQUBO PROPERTIES 22 CC
........................................................
Eighth
Appellant
JMS MARKETING CC
..........................................................................
Ninth
Appellant
BODY CORPORATE OF 72 ON KLOOF
............................................
Tenth
Appellant
THE OWNER OF ERF 572 CAPE TOWN
......................................
Eleventh
Appellant
and
THE CITY OF CAPE TOWN
.......................................................................
Respondent
Neutral citation:
Independent Outdoor Media v
City of Cape Town
(222/2012)
[2012] ZASCA 46
(28 March 2013)
Coram:
Mthiyane DP, Leach and Theron JJA and
Erasmus and Saldulker AJJA
Heard:
19 February 2013
Delivered:
28 March 2013
Summary: City of Cape Town’s Outdoor
Advertising and Signage Bylaw ─ Validity thereof ─ City
having had the legislative
authority to enact the Bylaw ─ Bylaw
not void for vagueness ─ differentiation between first party
and third party advertising
having a rational government purpose ─
Bylaw not invalid.
_________________________________________________________________
O R D E R
___________________________________________________________________
On
appeal from:
Western Cape High Court, Cape Town (Louw J sitting
as court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA (MTHIYANE DP, THERON JA, ERASMUS and SALDULKER
AJJA concurring)
[1] The validity of the Outdoor Advertising and Signage
Bylaw 10518 (‘the Bylaw’
1
)
of the City of Cape Town (‘the City’) is the principal
issue arising for decision in this appeal. The first appellant,
Independent Outdoor Media (Pty) Ltd, carries on business by placing
advertisements on illuminated signs which it owns and erects,
largely
within the Cape Town metropole. The present litigation concerns seven
advertising signs situated within the City’s
municipal
precincts erected by the first appellant on certain immovable
properties owned by the other appellants. The signs in
question are
illuminated outdoor signs of substantial dimensions: numbered 2 to 10
in the papers, presumably in order to link each
to the
correspondingly numbered appellant on whose property they are to be
found. Four of them measure 12m x 3m, two are 12.4m
x 1.2m while the
remaining three measure 9m x 4m, 9m x 3m and 3.5m x 2.8m
respectively. Two are billboards while the other signs
are attached
to buildings.
[2] In September 2010, the City (the respondent in this
appeal) launched motion proceedings in the Western Cape High Court,
Cape
Town, alleging that each of these signs lacked the requisite
permission required under the Bylaw for their erection and display.
It also alleged that the signs contravened the National Building
Regulations and Building Standards Act 103 of 1997, that certain
of
them encroached upon land owned by the City, and that others offended
the Roads Ordinance 19 of 1976. It therefore sought an
order that
both declared the signs to be unlawful and directed the appellants to
remove them.
[3] In opposing the application the appellants
contended, inter alia, that the Bylaw was invalid as it offended the
Constitution.
In a counter application, the first appellant, sought a
declaratory order to that effect. The high court (Louw J) rejected
the
appellants’ argument in regard to the alleged invalidity of
the Bylaw and, as the necessary permission under the Bylaw to
use the
signs and billboards had not been obtained (this is common cause), it
ordered the appellants to remove them. It also dismissed
the first
appellant’s counter application. With the leave of the high
court, nine of the original respondents (all save the
second and
tenth respondents cited in the court below – referred to in
this appeal as the second and tenth appellants) appeal
to this court
against that order.
[4] The appellants correctly conceded that if the Bylaw
is valid the signs are unlawful, in which event the remaining issues
relating
to their alleged unlawfulness are solely of academic
interest. The validity of the Bylaw is therefore the essential issue
which
has to be decided. But before doing so, it is necessary to
address a preliminary issue.
[5] In 2010 the City brought proceedings similar to the
present against a company known as Bouley Properties (Pty) Limited
(Bouley)
in the Western Cape High Court, Cape Town. As in the present
case, Bouley sought to impugn the constitutional validity of the
Bylaws
by way of a counter-application seeking an order declaring the
Bylaw to be inconsistent with the Constitution and therefore invalid.
Its argument in that regard was to all intents and purposes identical
to that now raised by the appellant. In a judgment delivered
on 21
December 2010,
2
the high court (Cleaver J) held that the Bylaw was not
constitutionally invalid, and dismissed Bouley’s
counter-application.
Bouley proceeded to attempt to appeal on two
fronts. First, it applied to the Constitutional Court under Rule
19(2) of the rules
of that court for leave to appeal directly to it
against the high court’s order. At the same time it also
applied to the
high court for leave to appeal against its order. When
the high court refused the latter application, Bouley applied to this
court
3
for such leave.
[6] None of these attempts bore fruit. On 1 February
2011 the Constitutional Court unanimously dismissed Bouley’s
application
for leave to appeal, stating in its order that it had
‘concluded that the application should be dismissed, with
costs, as
it bears no prospects of success’. Thereafter on 4
May 2011, this court dismissed the application for leave to appeal
lodged
with it.
[7] The respondent argued, both in this court and in the
court below, that the Constitutional Court’s dismissal of
Bouley’s
application for leave to appeal amounts to a binding
precedent having the effect that the Bylaw passes constitutional
muster and
is valid.
4
For this reason alone, so the respondent argued, the
appeal should fail.
[8] In my view this cannot be accepted. The principles
at issue had not been debated before the Constitutional Court in open
court
nor adjudicated upon in a fully reasoned judgment and the
reasons why the court concluded that Bouley’s application had
no
reasonable prospects of success are unknown. In these
circumstances it cannot be said that the Constitutional Court
necessarily
agreed with all the reasoning of Cleaver J in the high
court and its order ‘might mean no more than that, whether for
the
reasons in the judgment, or for other legal considerations, there
is no reasonable prospect of a different order being granted on
appeal’.
5
[9] Consequently, as a matter of principle, even though
in the light of the limited issue raised in the application (the
alleged
invalidity of the Bylaw) one is hard-pressed to think of any
reason that could have motivated the decision other than the opinion
that the Bylaw is valid, the refusal of Bouley’s application
cannot be construed as the Constitutional Court placing its
imprimatur on the reasoning of the high court. In my view, then, such
refusal did not create a binding precedent on the constitutional
validity of the Bylaw. (I find a measure of reassurance in reaching
this conclusion by knowing that in a number of foreign jurisdictions
having not dissimilar procedures, the refusal of leave to appeal
without detailed reasons has not been regarded as creating a binding
precedent of the higher court.
6
)
[10] I therefore turn to the issue of the validity of
the Bylaw. It may be useful to place it in its historical context.
Since at
least September 1958 when it was by regulation
7
vested with the necessary authority, the City has
enjoyed the power to regulate outdoor advertising within its area of
jurisdiction.
Thereupon in 1966, the City passed Bylaw 1959 of 1966
relating to outdoor advertising, s 6 of which contained a blanket ban
on
so-called ‘third party advertising’ (more about which
will follow in due course). In October 1999 in
City
of Cape Town v Ad Outpost (Pty) Ltd and others
2000
(2) SA 733
(C) the Western Cape High Court struck down s 6 as being
inconsistent with s 16(1) of the Constitution, but suspended its
declaration
of invalidity for a period of six months in order to
enable the City to rectify the defects it had found. Although that
period
lapsed on 1 April 2000, it unfortunately took the City until
27 April 2000 to react. This it did by adopting a new bylaw which
replaced the whole of Bylaw 1959 of 1966. Then on 5 December 2001 the
City promulgated the Bylaw which lies at the heart of the
present
debate.
[11] The appellants’ initial argument was that the
City had lacked the necessary legislative authority to enact the
Bylaw.
This was based on the contention that although the City could
legislate in respect of public property, it could not do so in
respect
of property in private hands, and that by seeking to regulate
signs and advertisements situated on both private and public
property,
it had acted beyond its powers.
[12] Although raised specifically in the appellants’
heads of argument, I understood leading counsel for the appellant to
have abandoned this point during argument, stating that it was ‘a
given’ that the City could regulate advertising within
the
bounds of its jurisdiction. But the point was resuscitated by
appellants’ junior counsel in reply, and so I must deal
with
it.
[13] The issue may be disposed of briefly. Under s 56(1)
of the Constitution a municipality has executive authority in respect
of,
and has the right to administer, the local government matters
listed in Part B of Schedule 4 and Part B of Schedule 5 of the
Constitution,
while under s 152(2) a municipality may make and
administer Laws for the effective administration of the matters it
has the right
to administer.
8
Part B of Schedule 5 of the Constitution lists
‘(b)illboards and the display of advertisements in public
places’ as
matters of local government falling within municipal
competence. However, as private property cannot be construed as being
a ‘public
place’, a concept further defined in the Bylaw
as meaning ‘any public road, public street, thoroughfare,
bridge, subway,
footway, foot pavement, foot path, sidewalk (or
similar pedestrian portion of a Road Reserve), lane, square, open
space, garden,
park or enclosed place vested in the Municipality, or
other state authority or indicated as such on the Surveyor General’s
records, or utilised by the public or zoned as such in terms of the
applicable zoning scheme’, the appellants argued that
the Bylaw
could only regulate advertising in places so defined as being public.
However, so the argument went, as the Bylaw purports
to give the City
the authority to regulate signs generally, regardless of their nature
and irrespective of their location ─
and indeed in certain
instances specifically regulates advertising of signs on private
property, eg window signs which are defined
as meaning signs ‘which
are temporarily or permanently painted on or attached to the window
height and glass of building’
– this fell beyond the
City’s legislative competence.
[14] In my view this argument cannot be accepted. In
dealing with a similar argument in Bouley, the high court said the
following
in regard to the meaning of the provisions of Part B of
Schedule 5:
‘
Since
the City already has authority over public places in terms of Part B
of Schedule 5, there would clearly be no need for it
to be granted a
separate authority to regulate advertisements in public places.
Consequently, the meaning of the term in relation
to advertising must
be different from the meaning of “public place” as
generally understood and as defined. There is
a further reason why
the phrase should not be interpreted in the manner proposed by
[appellant’s] counsel. Since the phrase
“in public
places”
9
qualifies
the display of advertisements only and does not apply to billboards,
the interpretation proposed by [appellant] would
result in the City
having authority to regulate billboards on private property, but not
signs on private property. This could clearly
not have been intended.
A further result of accepting [appellant’s] interpretation
would be that the City would not have
the authority to regulate
outdoor advertising on property owned by the City, as the definition
of “public places” in
the By-Law includes land which is
vested in the City of other state authority.’
[15] Not only do I find myself in respectful agreement
with this reasoning, but the appellants’ argument also
overlooks the
basic premise that an advertisement is a form of
communication which takes place between at least two parties; the
advertiser and
the person whose custom the advertiser seeks to
attract. Indeed it is for this reason that in order to attract as
many potential
customers as possible advertising hoardings,
billboards and the like are generally situated alongside public
places, roads, streets
and thoroughfares. I therefore do not see how
an advertiser who places its advertisement on private property can be
said not to
be advertising in public where its communication is
directed at and received by people frequenting public places.
[16] Moreover, two of the most important objectives
sought to be attained by regulating outdoor advertising are the
prevention of
visual pollution and the furtherance of road safety,
neither of which could be achieved if the narrow interpretation the
appellants
seek to place on the phrase ‘advertisements in
public places’ were to be accepted. As was pointed out by the
high court
in Bouley,
10
if the City lacked authority to regulate outdoor
advertising on private property ‘the uncontrolled proliferation
would then
ensue to the detriment of the local community’, a
result which the high court correctly observed would be ‘absurd
and
could not have been contemplated by the drafters of the
Constitution.’
[17] In the light of these considerations I have no
difficulty in concluding that the City was perfectly entitled to
regulate outdoor
advertising signage erected upon private property
and that the appellants’ initial point objecting to its
competence to do
so is groundless.
[18] I turn to the second leg of the appellants’
argument, namely, that the Bylaw impermissibly differentiates between
first
party and third party advertising. The former, referred to as
‘locality bound advertising’ in the Bylaw, is defined
as
meaning:
‘
[A]
ny
sign displayed on a specific erf, premises or building and may
include . . . such a sign on municipal owned land, adjacent to,
abutting on and/or within 5 metres of the aforementioned erf;
premises or building which sign refers to an activity product service
or attraction; located, rendered or provided on or from that erf or
those premises
.’
On the other hand third party advertising is defined as
follows:
‘
[T]he
advertising of goods or services that are not made, procured, sold or
delivered from the property on which the sign and/or
sign advertising
of those goods or services is fixed or placed, and includes
advertising which is not locality bound as well as
the display of a
sign which is made, procured or sold from the property but advertises
goods or services which are not made, procured,
sold or delivered
from that property.’
[19] Fundamental to the appellants’ case on this
issue is the manner in which these different categories of signs are
dealt
with in the Bylaw. These differences include the following:
(a) certain first party signs do not require municipal
approval at all whereas all third party signs need it;
(b) once granted, a first party sign carries with it
so-called ‘evergreen approval’ in that it endures without
the necessity
to renew it whereas the approval of third party signs
lasts for no more than five years and carries with it no guarantee of
renewal;
(c) the application fee for third party signs is
considerably higher than that for first party signs;
(d) more stringent restrictions are placed on the
dimensions of third party signs than those relating to first party
signs;
(e) free standing third party signs are subject to more
onerous linear spacing requirements than first party signs;
(f) third party signs may not be erected within 80m of
traffic lights at intersections, a restriction that does apply in
respect
of first party signs.
[20] Relying upon the requirement prescribed in
Harksen
v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 53 that a differentiation
between people or categories of people must bear a rational
connection to a legitimate government
purpose, it was argued by the
appellants that there can be no conceivable connection between these
differences and any legitimate
government purpose. The appellants
further argued that such differences fly in the face of the right of
property owners to use
their properties as they see fit, including
their right to derive income from their properties by allowing third
parties to advertise
there.
[21] On the other hand, the City contended in response
that it is a more intrusive limitation upon rights to inhibit an
owner from
advertising its own product on its own property than to
restrain a third party from advertising on the same site. It also
argued
that advertising by first parties not only allows the source
of the advertisement to be immediately identified by its location;
that due to the natural beauty of the City and its considerable
cultural history, the need to regulate outdoor advertising in the
city is of paramount importance; that third party signage contributes
more to visual clutter pollution in Cape Town than first
party
advertising; and that concerns in regard to traffic safety justify
stricter controls of third party signs, particularly those
near
traffic lights and at other places of potential danger.
[22] It must be remembered that the Constitution has
endowed the City with the power to regulate outdoor advertising
within its
precincts. It is not for a court to substitute its
economic and social beliefs for the City’s legislative
capability and
to decide what the City ought or ought not to do. If
the City’s legislation has a rational legislative purpose which
is not
arbitrary the courts cannot interfere with its function.
11
As was stated by O’Regan J in
East
Zulu Motors v Empangeni/Ngwelezane Transitional Local Council
1998
(2) SA 61
(CC) para 24:
‘
The
first question to be answered in any equality challenge, therefore,
is whether the governmental action or regulation under consideration
is rational. The question is not whether the government may have
achieved its purposes more effectively in a different manner,
or
whether its regulation or conduct could have been more closely
connected to its purposes. The test is simply whether there is
a
reason for the differentiation that is rationally connected to a
legitimate government purpose.
’
[23] In regard to the question of rationality, the
appellants dispute certain of the underlying facts relied upon by the
City to
justify the Bylaw. In particular they dispute that third
party signage makes a greater contribution to visual pollution than
first
party signs and that there is any necessity to distinguish
between first and third party signs situated close to traffic lights.
Each side has offered different facts and opinions on these issues
but, at the end of the day, I do not think this dispute carries
the
day one way or the other. What is of importance is that the parties
recognise that signs do create visual pollution and, whether
proven
scientifically or not, the potential of advertising signage to
distract a driver’s attention at an area of a roadway
where
utmost concentration is required must be a valid consideration to
take into account in considering whether signs should be
permitted in
such a situation. There can therefore be no doubt that the Bylaw has
a rational connection to a legitimate government
purpose. As Davis J
observed in
Ad Outpost
,
12
correctly in my view:
‘
The
restriction of third party advertising was designed to ensure that
the rich environment of Cape Town should be protected. Clearly
there
is a rational distinction between own party advertising in that it
would be a far more serious invasion of a person’s
rights to
prevent a person advertising his or her own product on such person’s
premises. Thus an understandable distinction
can be drawn between a
prohibition of own party advertising and third party advertising.
Furthermore, applicant has proclaimed
as an objective the
preservation of the unique environmental heritage of Cape Town. In
exercising its powers of control of advertising
it has chosen to curb
third party advertising to minimise environmental damage. This
prohibition of third party advertising as
opposed to own party
advertising constitutes, in my view, a rational distinction. For this
reason I cannot find that the Bylaw
has breached a constitutional
guarantee . . .).’
[24] In addition to the factors mentioned by the learned
judge, the City stressed before us that the different time periods
for
which first party and third party signs are approved enables it
to reassess the continued desirability of permitting an approved
advertising sign to continue to be displayed in the light of changing
circumstances, and that the exemption of first party signs
from the
linear spacing requirements imposed on third party signs allows
owners to advertise their businesses wherever they are
located. Both
of these considerations provide a rational and legitimate purpose to
distinguish between first and third party advertising.
[25] I have not lost sight of the fact that commercial
speech is worthy of protection, but the City was perfectly entitled
to regulate
outdoor advertising within its municipal precincts and
even though, in doing so, it differentiated in certain respects
between
first and third party signage, in my view it did not act
arbitrarily but for a rational and legitimate purpose. The
differentiation
between first and third party advertising thus does
not visit the Bylaw with invalidity.
[26] I turn now to the third leg of the appellants’
argument, namely, that the Bylaw should be struck down as it is vague
and overbroad. The foundation of this argument is that laws should be
‘written in a clear and accessible manner’
13
and if not, should be struck down. With limited
exceptions, s 1 of the Bylaw provides that a person shall not
‘display any
advertisement’ or ‘erect or use any
sign or advertising structure for advertising purposes’ without
the necessary
approval from the City or any other applicable
legislation. The appellants’ argument is that these
prohibitions are not clearly
defined and rendered nugatory as the
respective definitions of ‘advertisement’, ‘advertising
structure’
and ‘sign’ are so vague that they cannot
be determined. In Part A of the Bylaw these concepts are defined as
follows:
‘“
Advertising
structure
”
means
any physical structure built or capable of being used to display a
sign.
“
Advertisement
”
means
any representation of a word, name, letter, figure or object of an
abbreviation of the word or name, or any symbols; or any
light which
is not intended solely for illumination or as a warning against any
dangers and “
advertising
”
has a
similar meaning.
. . .
“
Sign”
means
any object, product, replica, advertising structure, mural, device or
board which is used to publicly display a sign or which
is in itself
a sign; and includes a poster and a billboard.’
[27] Like any other legislation, reasonable certainty
and not perfect lucidity is required in respect of a municipal
bylaw.
14
But while the language used in the definitions quoted
above may not be a model of lucidity, I have no doubt that any
reasonable
reader will understand the Bylaw to seek to regulate
outdoor advertising in the urban area of the City. That is readily
apparent
from the preamble which records that the object of the Bylaw
‘is to regulate outdoor advertising in the jurisdiction of the
City of Cape Town’ and that it ‘sets out the procedures
to be followed and the criteria used when obtaining approval
for a
sign applicable to outdoor advertising in the City of Cape Town.’
[28] I am also of the opinion that the definitions, too,
are reasonably certain. Moreover it can be regarded as trite that a
definition
in an enactment is not to be slavishly applied but must
give way to the ordinary meaning of the word where the context so
indicates.
Thus In
Town Council of Springs v
Moosa
1929 AD 401
at 416-7, De Villiers ACJ,
after quoting with approval the observation in
The
Queen v The Justices of Gloucestershire
15
that an interpretation clause ‘merely declares
what . . . may be comprehended within that term, where the
circumstances require
that they should’, went on to say:
‘
(A)n
interpretation clause has its uses, but it also has its dangers, as
it is obvious from the present case. To adhere to the definition
regardless of subject-matter and context might work the gravest
injustice. . ..
’
16
Despite the lapse of some 86 years, that observation
remains as valid today as it was then.
[29] The argument in regard to vagueness centred mainly
on the definitions of ‘advertisement’ and ‘advertise’.
Both these concepts are of simple context and well known. Thus, for
example, The Concise Oxford English Dictionary (12
th
ed)
defines the verb ‘advertise’ as meaning to ‘publicise
(a product, service or event) in order to promote sales
or
attendance’ or to ‘make (something known)’ and the
noun ‘advertisement’ as being ‘a notice
or display
advertising something’. The definition of an advertisement in
the Bylaw must be viewed with that meaning in mind.
[30] As the Bylaw’s definition of ‘advertisement’
makes no mention of the various representations referred to being
directed towards these customary understood purposes, it was
presumably intended to bring within the confines of the word
something
which otherwise might arguably not have fallen within its
normal meaning. Thus for example a representation merely of a brand
name
of a well-known manufacturer or product, or of a mere letter
(such as the ‘f’ used by a well-known internet social
networking site), or of a well-known logo or symbol (such as the
famous ‘tick’ of a well-known sportswear company or
the
singing bird of another social networking site) would by itself alone
be intended to be regarded as an advertisement under
the definition.
So too would a set of flashing lights designed to attract attention
to a particular commercial outlet.
[31] Significantly, the definition of ‘advertisement’
was not coined solely by those responsible for the drafting of
the
Bylaw. It was clearly plagiarised from the definition of the word in
the Advertising on Roads and Ribbon Development Act 21
of 1940
17
which regulates outdoor advertising on rural roads.
Despite my research, I have been unable to find any decision in which
that definition
required judicial interpretation during the 73 years
it has been on the statute books. The probable explanation for this
is that
the Act and its definition are clear. A reading of the Act,
as too the Bylaw, shows that an ‘advertisement’ is what
we all know an advertisement to be as amplified by the additional
connotation conveyed by the definition.
[32] By a similar process of reasoning, there is to my
mind also nothing so vague about the definition of a ‘sign’
in
the Bylaw which is likely to confuse a reasonable person. Again,
and indeed as the definition provides, a sign is a sign and includes
a billboard or a poster. I therefore find myself in agreement with
the learned judge in the court a quo who said:
‘
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 . . . needs to be able to
regulate
all outdoor advertising, including new forms of advertising which may
arise. The fact that there is no reference to outdoor
advertising in
the definition does not mean that someone wishing to erect a sign or
an advertisement will be in any doubt as to
the fact that he or she
may not do so without the permission of the City. I do not agree with
the submission that the definition
of a sign is circuitous. While
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
word “sign”
when it appears in the body of the Bylaw’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 Bylaw
is not impermissibly vague or overbroad.’
[33] In the light of these considerations, the
appellants’ attack upon the validity of the Bylaw is without
merit and the
counter-application to have it declared invalid was
correctly dismissed.
This renders it unnecessary
to decide the various other issues raised in the court below, namely,
either the alleged breaches of
the National Building Regulations and
Buildings Standards Act 103 of 1977 and the Roads Ordinance No 19 of
1976, or the alleged
encroachment of certain of the signs upon the
City’s property. As the necessary permission under the Bylaw
had not been obtained
for the signs in question, and for that reason
alone the City has to succeed, all such further issues become of
academic interest.
[34] Consequently, apart from costs, the only further
matter to be dealt with is the appellants’ suggestion that the
court
a quo had erred in granting permanent interdictory relief
against them as there was another satisfactory remedy available,
namely,
the laying of criminal charges for breaches of the Bylaws.
[35] The City contended that history has shown that the
laying of criminal charges had proved to be ineffectual in the past.
Delays
arising in the prosecution process, inter alia due to
representations made on behalf of the persons charged, had resulted
in unlawful
signs remaining on display and continuing to generate
income for the accused for lengthy periods. In the light of this and
‘the
relatively low maximum sentences that are handed down by
the criminal courts and the fact that the criminal courts lack the
power
to grant orders of the kind sought in this case, namely that
the offending signs be removed’ the court a quo observed that
‘criminal proceedings do not constitute an adequate alternative
remedy in a case such as the present’.
[36] I agree. In my view there is no reason why an
interdict should not be granted to stop unlawful signs being
displayed in breach
of the Bylaw, and while a criminal prosecution
may well follow upon an offender making itself guilty of unlawful
conduct, it would
be a sad day if the criminal courts were to be
clogged by a vast number of cases of such a nature. The court a quo
was quite correct
to have granted the interdict that it did.
[37] The final issue to consider is that of costs. It
was argued by the appellants that they were seeking to enforce a
constitutional
right and that, consequently, even if unsuccessful,
they should not pay the City’s costs. However, as counsel for
the appellants
readily conceded, the fact of the matter is that this
litigation is commercial in nature in that the appellants would not
have
sued had they not been making money out of their advertising
(indeed the first appellant’s business is to place on outdoor
advertisements). The appellants’ private commercial interests
were paramount and, that being, so I see no reason why they
should
not pay the City’s costs.
18
[38] The appeal is dismissed with costs, including the
costs of two counsel.
______________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: J Heunis SC (with him M Osborne)
Instructed by:
Ashersons Attorneys, Cape Town
Webbers Attorneys, Bloemfontein
For Respondent: A Breitenbach SC (with him R Paschke)
Instructed by:
Fairbridges Attorneys, Cape Town
McIntyre & Van der Post, Bloemfontein
1
Promulgated
on 5 December in provincial Gazette 5801.
2
City
of Cape Town v Bouley Properties (Pty) Ltd
(9410/2012)
[2010]
ZAWCHC.
3
Under
s 21(2) of the Supreme Court Act 59 of 1959.
4
The
court a quo found it unnecessary to deal with this issue as it was
not persuaded that the high court’s judgment in Bouley
was
clearly wrong, and for that reason alone felt it was binding.
5
Goldstone
J in
Mphahlele v The First National Bank of South Africa Ltd
[1999] ZACC 1
;
1999 (2) SA 667
(CC) para 18.
6
See
eg
Hughes Tool & Co v Transworld Airlines Inc
[1973] USSC 50
;
409 US 363
at 411;
Maryland v Baltimore Radio Show Inc
[1950] USSC 2
;
338 US 912
at
917-919;
Hopfmann et al v Connolly et al
[1985] USSC 116
;
471 US 459
at 461;
Supreme Court Employees Welfare Association v Union of India
1990
AIR 334
1989 SCR (3) 488 at 504-5;
M/s
.
Rup Diamonds v
Union of India
1989 AIR 674
1989 SCR (1) 13 at 17-18.
7
Standard
Regulations Relating to Advertising Signs and the Disfigurement of
the Front or Frontages of Streets
promulgated in Provincial
Notice 593 of 1958 on 26 September 1958.
8
Compare
Johannesburg Municipality v Gauteng Development Tribunal
2010
(6) SA 182
(CC) paras 54-57.
9
In
the Bylaw.
10
Para17.
11
See
eg
S v Lawrence; S v Negal; S v Solberg
1997 (4) SA 1176
(CC)
paras 41 and 44 and Cheadle, Davis, Haysom
South African
Constitutional Law: The Bill of Rights
§ 4.6.1.1.
12
At
744D-F.
13
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para
108.
14
See
Bertie van Zyl (Pty) Ltd v Minister of Safety and Security
2010
(2) SA 181
(CC) para 103.
15
The
Queen v The Justices of Gloucestershire
112 ER 554.
16
At
417.
17
Which
reads: ‘”advertisement” means any visible
representation of a word, name, letter, figure or object or
of an
abbreviation of a word or name, or of any sign or symbol; or any
light which is not intended solely
for
illumination or as a warning against any danger.’
18
Rootman
v President of RSA
[2006] JOL 17547
(SCA) para 14.