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[2010] ZAWCHC 650
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City of Cape Town v Bouley Properties (Pty) Ltd (9410/2010) [2010] ZAWCHC 650 (21 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case
no: 9410/2010
THE
CITY OF CAPE TOWN
…...........................................................................
Applicant
v
BOULEY
PROPERTIES (PTY) LTD
…...........................................................
Respondent
(Registration
number: CK 1998/09904/07)
JUDGMENT
HANDED DOWN TUESDAY, 21 DECEMBER 2010
CLEAVER
J
[1]
This is an application by the City of Cape Town ("the City")
for the grant of an order that Bouley Properties (Pty)
Ltd ("Bouley")
be directed to remove outdoor advertising signage which it has
unlawfully affixed to a building on its
property situated at 6A
Marine Drive, Paarden Island (Erf 173335) because Bouley has not
obtained the approval of the City for
the erection of the sign in
terms of the City of Cape Town Outdoor Advertising and Signage By-Law
No 10518 ("the By-Law").
[2]
Bouley opposes the application on the basis that the City had
available an alternative remedy to the relief which it seeks.
In a
counter-application Bouley seeks orders declaring the By-Law,
alternatively certain sections of it, to be inconsistent with
the
Constitution of the Republic of South Africa 1996 ("the
Constitution") and therefore invalid.
[3]
In recording the history of the matter, I rely heavily on the heads
of argument submitted by the City's counsel, the provenance
of which
I acknowledge.
In
an exchange of correspondence between Bouley and the City from 29
July 2009 to 7 August 2009 the City repeatedly indicated
to Bouley
that the erection of signage on the property was not permitted
without the approval of the City and that to do so would
constitute
a criminal offence.
After
it became apparent during an inspection by the City on 28 April 2010
that Bouley had erected scaffolding on the building,
correspondence
ensued between the City and Bouley in which the City repeatedly
requested undertakings that Bouley would not erect
signage without
approval. By letter dated 26 April 2010, Bouley informed the City
that no decision had been taken by it in respect
of signage on the
property and that it would make an application for approval if it
should decide to erect any signage. Bouley
contended that the City's
call for an undertaking was without foundation.
An
inspection on 5 May 2010 by officials of the City revealed that a
sign-frame was being erected on the building which resulted
in
further correspondence between the parties with the City again
requesting undertakings that Bouley would not erect signage without
approval. By letter dated 10 May 2010 Bouley again indicated that it
had not taken any decision in regard to signage on the property
and
that the frame was being erected 'to
enhance
the fagade of the building'.
Bouley
further gave an
'assurance
that we will most definitely make the relevant application should we
decide to proceed with signage'.
Continued
preparations to erect the signage resulted in the City bringing an
urgent application on 10 May for an order restraining
Bouley from
erecting unlawful signage. The application came before Hlophe JP who
declined to hear it for what the applicant terms
'procedural
reasons'
and
the application was then adjourned.
In
further correspondence, Bouley declined to provide a written
undertaking that signage would not be erected at the property without
the prior written approval of the City.
On
2 July 2010 Bouley submitted an application to erect signage at the
property. In the covering letter to the application Bouley
recorded
that it was subject to a commercial constraint in that the terms of
an agreement which it had concluded with the party
whose
advertisement was to appear on the sign, required Bouley to secure
approval of the sign
within
the next fourteen days'.
!n
the letter Bouley recorded being aware of the maximum period in
which the City might consider its application (90 days) and
submitted that nothing prevented the City from considering the
application within a shorter period. It expressed the view that
there was no reason why its application could not be considered
within the time frame proposed by it.
The
City responded on 16 July by advising that the application had been
submitted to the City's traffic engineers and its environmental
branch for assessment of the Traffic Impact Assessment and Visual
Impact Assessment included in Bouley's application. Bouley
was
advised that the traffic engineer would require a possible two weeks
to complete a comprehensive assessment of the traffic
impact
submitted and was told that the engineer had a number of other
applications which had been submitted and which would enjoy
his
prior attention. In conclusion it was pointed out that in terms of
By-Law 49, the City had 90 days to deliver a decision
and Bouley's
attention was drawn once again to the fact that a criminal offence
would be committed if a sign was erected without
the required
written approval of the City.
Bouley
responded on 19 July by pointing out that
'it
is in the nature of co-ordinating the advertising of a new product
or service that the timing of the advertisement is critical.
Once an
advertiser has finalised its artwork for the product to be
advertised, it is simply unworkable for any advertiser to
be told
that they may have to wait anything from a day to three months
whether or not an advertisement may or may not be flighted'.
The
view was expressed that the 14 days which Bouley had given the City
to deal with the application was more than generous
'but
being told that we have to wait for anything between another 14 days
and the balance of the 3 months is simply unacceptable.'.
Bouley
also indicated that it was not surprised at the attitude of the City
'given
the history of this matter, and the obfuscation and prevarication
that we have come to expect from your department in respect
of any
application that emanates from any property owner or outdoor
advertiser that does not enjoy the favour of your department'.
Bouley
then went on to record that it had no option but to flight the sign,
'given
the enormous financial losses that we would suffer if we don't
and
that in terms of the professional reports which it had submitted, it
was clear that there was no prejudice or risk to the
City,
'whereas
there is enormous prejudice to all the private entities involved in
this project and insofar as the City considers itself
prejudiced in
that a sign is erected without its final approval, this prejudice is
of its own making, and can be easily remedied
by giving our
application proper and timeous approval'.
When
the council received information on the afternoon of 19 July that
signage was being erected on Bouley's property, an application
was
launched on the following day for an interdict to prevent Bouley
from erecting the sign.
The
matter was set down for hearing on 29 July 2010, but by that date,
the sign had been erected.
[4]
On 4 August 2010 the City served a notice on Bouley calling on it to
remove the sign within 21 days as it had been erected without
the
written approval of the City. The notice was issued pursuant to the
provisions of s 75 of the By-Law.
Sections
75 and 76 which appear under the heading of ENFORCEMENT AND REMOVAL
OF SIGNS read as follows:-
'75.
If any sign displayed is in contravention of this By-Law, the
Municipality may serve a notice on the owner or lessee of the
sign,
or the land owner on whose land the sign is erected or displayed, or
person whose product or services are advertised, calling
upon such
person to remove such sign or carry out such alternation thereto or
do such work as may be specified in such request
or notice, within a
time frame specified therein. Notwithstanding the service of such
notice, it may be withdrawn or varied by
the Municipality, by
agreement with the person so served, or failing such agreement, by
the service of a further notice.
76.
Should
the Municipality's demands, as set out in the notice, not be carried
out within the time period specified therein, the Municipality
may,
without further notice to the person upon whom the notice was served
and after obtaining relief from the appropriate court
on an
ex
parte
basis,
remove or alter the sign or do such work as may be specified in such
notice, provided that no court order shall be required,
if the
unlawful sign is erected or displayed on property belonging to the
Municipality, prior to removal or alteration thereof.'
It
is common cause that Bouley did not adhere to the instruction to
remove the sign and relies on the defences raised to the application
and the prayers set out in its counter-claim.
[5]
Bouley contends that the City had an alternative remedy available to
it, namely the steps which it could have taken under ss
75 and 76 of
the By-Law. In fact, the City is criticised for not mentioning the
By-Law in its founding papers and also for not
mentioning that in the
Dormell
1
matter,
heard it this division, the court had come to the conclusion that
By-Law 75 did provide an alternative remedy to the City
in its
application for an interdict similar to that which is sought in the
present matter. When the matter was reinstated by the
City for
hearing on 29 July 2010, a short supplementary affidavit was filed on
behalf of
the
City relating the sequence of events which led to the City
ascertaining that Bouley was in the process of erecting a sign at
the
property. The affidavit dealt principally with the urgency of the
matter. No reference was made in it to any alternative remedy
which
might have been in existence; that issue had been dealt with in the
founding papers which had previously been filed. In those
papers the
City recorded that inasmuch as it sought to prevent the erection of
the sign, the alternative remedy of the criminal
sanction prescribed
in the By-Law had proved to be singularly ineffective in deterring
signage companies and property owners from
persisting with unlawful
conduct without the City's approval. A subsequent criminal
prosecution can not in my view be regarded
as an alternative remedy
to a prayer to interdict Bouley from erecting the sign, nor can a
claim for damages be a satisfactory
alternative.
[6]
It was also contended on behalf of Bouley that having resorted to the
provisions of s 75 of the By-Law the City had effectively
shown that
an alternative remedy was available to it. Bouley's counsel submitted
that the time to judge whether an alternative
remedy is available is
at the time of the hearing of the application and not at the time of
the institution of proceedings. On
that basis it was submitted that
in effect the applicant was seeking to enforce two remedies
simultaneously, i.e. its prayer for
an interdict as initially framed
and its prayer for relief following on the implementation of steps in
terms of s 75.
[7]
Although the City has not formally abandoned its prayer for an
interdict as initially framed and has also not formally indicated
that it is relying solely on its rights in terms of s 75 of the
By-Law, counsel for the City submitted that in the exercise of
my
discretion to grant or refuse an interdict, an important fact to be
borne in mind is that the situation inwhich the City finds
itself has
been brought about solely by Bouley's conduct. There is much to be
said for this view. The City initially instituted
proceedings to
prevent the erection of an illegal sign because of its concerns about
the activity on the site and Bouley's failure
to satisfy the City
that it would not erect a sign without obtaining the City's approval.
That application was not entertained
because of procedural
difficulties. After Bouley had assured the City that it would apply
for permission to erect the sign, thus
giving the impression that it
would secure approval for the erection of the sign before putting it
up, Bouley lodged an application
and requested the City to deal with
it within an arbitrarily imposed period of 14 days. The justification
relied upon by Bouley
for its decision to erect the sign without
obtaining the consent of the City, that of commercial constraints, is
totally unwarranted.
[8]
The City's decision to serve a notice in terms of s 75 muddied the
waters to an
extent,
but this step should not in my view debar the City from obtaining
relief. The City
seeks
relief by means of an interdict which
'…...is
an order of Court, it enjoins a party (respondent or defendant) to
refrain from doing something, or orders such party
to do something.
The first type of order is referred to as a prohibitory interdict and
the second as a mandatory interdict. The
distinction has little
practical value except that a Court, when exercising its discretion,
whether or not to grant an interdict
will have regard to the fact
that it is more difficult to enforce a mandatory interdict than to
enforce a prohibitory interdict.
Otherwise the requirements are the
same. '
2
When
the City enrolled its application its main prayer was for a
prohibitory interdict and
although
Bouley erected the sign before the application could be heard, I
consider that the
issue
of an alternative remedy should be decided on the papers as at the
time of the
enrolment
of the application in July. Although counsel for Bouley submitted
that the time of the hearing was the relevant time for
making such a
decision, neither he nor counsel for the City was able to refer me to
any authority on this point. By erecting the
sign, Bouley effectively
altered the playing-field, but I am of the view that it should not be
allowed to utilise that step to
the City's disadvantage. As to the
submission that
DormelFs
case
is authority for the proposition that the City had an alternative
remedy when it applied, the facts in
Dormelfs
case
are distinguishable from the facts before me. In
Dormell
the
respondent had already erected a sign when the City applied for the
interdict and for that reason the court concluded, although
its
conclusion did not form part of the
ratio
for
the judgment, that the City had the alternative remedy of proceeding
in terms of s 75 available to it. (The application failed
because the
City had failed to establish grounds of urgency.) Although the City
did not refer to s 75 in its founding papers, a
full copy of the
By-Law was included with the papers. When the City re-enrolled its
application, the purpose of which was to prevent
the erection of the
sign or signs, an adequate alternative remedy available to it would
have had to grant similar protection to
the City i.e. the prevention
of the sign being erected. Clearly no such alternative remedy was
available at the time.
[9]
What then must be made of the City's decision to implement the
procedure as set out in s 75 by serving on Bouley a notice requiring
it to remove the sign which had been erected without its approval,
and to which Bouley did not respond. It is not clear why the
City
embarked on this course, but the reason may well be that it wished to
avoid finding itself in a situation similar to that
in which it was
in the
Dormell
matter
once the sign had been erected. I am of the view that because of
Bouley's conduct, it should not be expected of the City
to withdraw
the application and thereafter to proceed afresh on the strength of
the notice already given to Bouley to which it
did not respond. As
counsel for the City pointed out, everything that could or would have
been placed before the court had the
court been approached in terms
of s 76 of the By-Law is before me. Counsel for Bouley did not
suggest otherwise. An order granted
pursuant to s 76 of the By-Law
would of course be for the City to remove the sign, whereas prayer 3
of the notice of motion is
for an order for Bouley to remove the
sign. However, an order granted pursuant to s 76 of the By-Law could
be accommodated in the
prayer for alternative relief.
[10]
The situation which has now been reached is not unlike that which
pertained in
Huisamen
and Others v Port Elizabeth Municipality.
3
In
that matter the appellants had permitted a property to be utilised
for purposes which contravened the applicable zoning scheme.
In
responding to what was nothing more than a plea
ad
misericordiam
the
court held that the use of the property in contravention of the
zoning scheme constituted a criminal offence and in deciding
on
whether or not to confirm the temporary interdict which had been
obtained, the exercise of its discretion in favour of a respondent
whose conduct amounted to a criminal offence under a statute would in
effect sanction the criminal conduct. An order non-suiting
the City
on the grounds advanced by Bouley's counsel would bring about a
similar result in that Bouley would be able to maintain
the sign, but
would still be subject to criminal prosecution. Such a situation can
hardly be tolerable.
[11]
I am accordingly of the view that the City has established that no
satisfactory alternative remedy was available to it.
[12]
Bouley's attack on the By-Law as a whole is advanced under four
headings, namely:-
a)
The City does not have the competence to regulate third party
signage on buildings on private property and the By-Law is
accordingly inconsistent with s 156(1) of the Constitution.
b)
The By-Law is impermissibly vague and over-broad.
c)
The By-Law contains a blanket criminalisation of all contraventions
of the By-Law and is thus inconsistent with s 12 (the right
not to
be deprived of freedom without just cause) of the Constitution.
d)
The distinctions in the By-Law between first and third party
advertising are arbitrary and inconsistent with s 9(1) (the right
of
equality) of the Constitution.
[13]
The main challenge to the unconstitutionality of the By-Law concerns
the
interpretation
to be placed on the term 'public places'. The power of the City to
regulate
signage
is derived from s 156(1)(a) of the Constitution in terms whereof a
municipality has
executive
authority in respect of and has the right to administer the local
government
matters
listed in Part B of Schedule 4 and Part B of Schedule 5. Amongst the
matters
referred
to in Part B of Schedule 5 is
'Billboards
and the display of advertisements in public places.'
Bouley's
sign is an example of 3
rd
party
advertising which is defined in the By-Law as:-
'...the
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.'
First
party advertising is described in the By-Law as
'locality
bound advertising'
which
means
'any
sign displayed on a specific 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
behalf of Bouley it was submitted that the phrase
'advertisements
in public places'
does
not include advertisements on private property, since the words
'in
public places'
can
not be interpreted to mean on private property. Since the vast
majority of third party signs are erected on private property
which
is visible to the general public, acceptance of the submissions on
behalf of Bouley would result in the entire By-Law being
struck
down. In my view the interpretation placed on
'advertisements
in public places'
by
Bouley's counsel cannot be correct. Both counsel referred me to
different reported cases in which the meaning of
'public
place'
was
considered, but guidance to the problem is to be found in the
Sithonga
4
judgment
in which the following was said in relation to the term
'public
place':
'It
is a fluctuating term and it is neither possible nor desirable to
define a public place so as to cover all offences or statutory
provisions. The particular meaning to be attributed to the phrase is
derived from the context in which it is used. The interpretative
context includes the purpose the legislature intended to achieve or
the mischief it intended to prevent with the particular legislation
under consideration. It also includes the legislative history of the
scheme and the Act and the function in the statutory scheme
of the
particular phrase in dispute...'
It
is noteworthy that in addition to listing billboards and the display
of advertisements in
public
places in Part B of Schedule 5 to the Constitution, 'public places'
is also listed as a
local
government matter. 'Public place' is defined in the By-Law as
meaning:-
'...any
public road, public street, thoroughfare, bridge, subway, footway,
foot pavement, footpath, 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 utilized by
the public or zoned as such in terms of the applicable
zoning
scheme.'
Since
the City already has authority over public places in terms of Part B
of Schedule 5, there would clearly be no need for it
to be granted a
separate authority to regulate advertisements in public places.
Consequently, the meaning of the term in relation
to advertising
must be different from the meaning of 'public place' as generally
understood and as defined. There is a further
reason why the phrase
should not be interpreted in the manner proposed by Bouley's
counsel. Since the phrase 'in public places'
qualifies the display
of advertisements only and does not apply to billboards, the
interpretation proposed by Bouley would result
in the City having
authority to regulate billboards on private property, but not signs
on private property. This could clearly
not have been intended. A
further result of accepting Bouley's interpretation would be that
the City would not have the authority
to regulate outdoor
advertising on property owned by the City, as the definition of
'public places' in the By-Law includes land
which is vested in the
City or other state authority.
[14]
Inasmuch as dictionary definitions may be of assistance, the word
'public' means
'open
to general observation, sight or knowledge; existing or done
openly
5
,
'exposed to general view'
6
and
'open
to the knowledge or view of all'
7
.
[15]
Lastly, reference may be had to the work of Professor Steytler and
others who in the work compiled to assist municipal councils
supply
a definition of the competency bestowed on municipalities in terms
of Schedule 5 B of the Constitution in respect of
billboards
and the display of advertisements in public places, namely
'Display,
regulation and control of billboards and the display of
advertisements in public places.
Includes
signs erected or situated on private property but visible from
public spaces.
'
8
[16]
In the final analysis, regard must be had to the purpose which the
drafters of the Constitution intended to achieve when
construing the
phrase in question. The City considers the purpose to be the
prevention of visual pollution and road safety hazards
presented by
the distracting effect of such advertising. This view is supported
by Dr Jordaan, a transportation engineer, who
submitted an affidavit
on behalf of Bouley. Both in the
Ad
Outpost
9
and
Roundabout
Outdoor
10
judgments,
it was accepted that this is the purpose of the regulation of
outdoor advertising. That these objectives would be negated
if the
City did not have the authority to regulate outdoor advertising
displayed on private property in the view of the public
is clear.
The City's deponent to its founding papers indicates that without
adequate supervision by the City, an uncontrolled
proliferation of
outdoor advertising with residual pollution and potential road
safety hazards which would be to the detriment
of the local
community would arise.
[17]
In
Ad
Outpost
11
and
Roundabout
Outdoor
12
it
was accepted that the purpose of the regulation of outdoor
advertising is to prevent visual pollution and road safety
hazardspresented
by the distracting effect of such advertising.
These objectives would be negated if the City were to be denied the
authority
to regulate outdoor advertising on private property in
full public view as the uncontrolled proliferation of outdoor
advertising
would then ensue to the detriment of the local
community. Such a result would be absurd and could not have been
contemplated
by the drafters of the Constitution. I am therefore of
the view that the phrase should not be interpreted in the manner
proposed
by Bouley's counsel, but must mean advertising in places
which exist in open view and are visible to the public.
Vagueness
and Overbreadth
[18]
On behalf of Bouley it was contended that since the By-Law
'comprehensively
criminalizes
certain
forms of constitutionally protected expression'
(original
emphasis), a greater level of clarity is required in respect of any
limits imposed by the By-Law. It is not entirely
clear what is meant
by this. To start with, save for two situations
13
,
the By-Law does not regulate the content of outdoor advertising. In
dealing with outdoor advertising it may be useful to have
regard to
reported Canadian cases dealing with the issue where outdoor
advertising has been held to be
'content
neutral'
14
and
to regulate only the
'time,
place and manned
15
of
outdoor advertising.
[19]
These phrases were approved in the
Roundabout
Outdoor
case
16
;
.
In that case the facts were similar to the facts before me in that
the municipal authority sought an order directing parties
who had
been responsible for erecting advertising signage on private
property without the prior consent of the municipal authority
to
remove the sign. One of the grounds on which the application was
resisted was the contention that the By-Law constituted a
contravention of the right to the freedom of expression. The court
explained, as had been done in
Ad
Outpost,
that
outdoor advertising concerns
'commercial
expression'
and
that most commercial speech in South Africa is regarded as being of
peripheral value.
17
In support of this view, the following extract from Chaskalson et al
Constitutional
Law of South Africa
was
cited.
'Commercial
expression has been defined as speech which proposes a financial
transaction. This area of expression relates primarily
to commercial
advertising of goods or services for profit, but is wide enough to
include expression in the context of unlawful
competition, including
disparagement and economic trade boycotts. Most, but not all,
commercial expression is at some remove
from the core of freedom of
expression and is best located within the protected periphery of the
guarantee. In America a reduced
level of Constitutional protection
is extended to commercial expression. The test for valid statutory
regulation of commercial
advertising is set out in
Central
Hudson Gas v Public Services Commission.'
18
After
referring to the United States and certain United States
authorities, the court concluded
'It
is therefore apparent that the value which is to be attached to the
form of speech that is restricted plays an important role
in the
recognition which is afforded to the particular type of speech. And
further the value which society places on the particular
form of
speech is a factor of substantial importance in determining whether
the right has been infringed. Furthermore, as it
has been shown
hereinbefore, commercial speech isconsidered to be entitled to
lesser protection than that accorded to other constitutional
guaranteed forms of expression.
,
19
The
court also concluded that the By-Law attack did not seek to regulate
the nature of the information sought to be imparted,
but only the
location of the billboards. In coming to its final conclusion that
the applicant was entitled to the order sought,
the court in fact
had regard to the provisions of s 36 of the Constitution for it
concluded that the limitation of the respondent's
rights in terms of
s 16(1)(o) of the Constitution (the freedom to receive or impart
information or ideas) was reasonable and
justifiable in an open and
democratic society.
[20]
In this division a different view was expressed as to the value to
be attached to commercial speech in
Ad
Outpost where
the
following was said:-
The
tendency to conclude uncritically that commercial expression bears
less constitutional recognition than political or artistic
speech
needs to be evaluated carefully. So much speech is by its very
nature directed towards persuading the listener to act
in a
particular manner that artificially created divisions between the
value of different forms of speech requires critical scrutiny.
Whatever the role of such speech within a deliberative democracy
envisaged by our Constitution, it is clear that advertising
falls
within the nature of expression and hence stands to be protected in
terms ofs 16(1) of the Constitution. To the extent
that its value
may count for less than other forms of expressions, account of this
exercise in valuation can only be taken at
the limitation enquiry as
envisaged in s 36 of the Constitution.'
20
In
my view it is clear that the By-Law does not limit the right to
freedom of expression in s 16 of the Constitution, but in any
event,
should I be wrong in that regard, I am satisfied that such
limitation is reasonable and justifiable in an open and democratic
society based on human dignity, freedom and equality.
[21]
When considering the attack on the alleged overbreadth of the
By-Law, the approach to interpretation when the constitutionality
of
legislation is challenged in
Hyundai
Motor Distributors
applies.
'The
Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental
values.
Consistently with this, when the constitutionality of legislation is
in issue, they are under a duty to examine the objects
and purport
of an Act and to read the provisions of the legislation, so far as
is possible, in conformity with the Constitution.'
21
This
approach was confirmed by the Constitutional Court in
Bertie
van Zyl
wherein
it was held that when the constitutionality of legislation is
challenged a court must first determine
'whether,
through "the application of all legitimate interpretive aids",
the impugned legislation is capable of being
read in a manner that
is constitutionally compliant'
22
and
wherein the court once more confirmed that a purposive approach to
statutory interpretation is required.
As
to the test for vagueness, it was explained in
Affordable
Medicines
that
although the law requires that laws be written in a clear and
accessible manner, what is required is reasonable certainty
and not
perfect lucidity
23
and that where it is contended that the regulation under
consideration is vague for uncertainty, a court should first
construe
the regulation by applying the normal rules of construction
by including those required by constitutional adjudication and then
establish whether so construed the regulation indicates with
reasonable certainty to those who are bound by it what is required
by them.
24
[22]
The key proscription in the By-Law challenged which is said to be
vague and overbroad is that in s 1 which provides
'Other
than those signs referred to in Section 55 to 62 hereinbelow, no
person shall display any advertisement or erect or use
any sign or
advertising structure for advertising purposes without the
Municipality's approval in terms of this By-Law and any
other
applicable legislation.'
All
the terms contained in this section are defined in Part A of the
By-Law which contains definitions. The following definitions
are
relevant-
'
"Sign" means any object, product, replica, advertising
structure, mural device or board which is used to publicly
display a
sign or which is in itself a sign; and includes a poster and a
billboard.'
'
"Advertisement" means any representation of a word, name,
letter, figure or object or an abbreviation of a word or
name, or
any symbol; or any light which is not intended solely for
illumination or as a warning against any dangers and "advertising"
has a similar meaning.' ' "Advertising structure" means
any physical structure built or capable of being used to
display
a sign.'
On
behalf of Bouley it was submitted that the supposed qualifier
'for
advertising purposes'
does
not limit the scope of the broadly formulated limitation on freedom
of expression because in terms of s 1, the term 'advertising'
has
the same wide definition as the term 'advertisement'. I am not sure
what to make of this submission since in my view it seems
clear that
what is proscribed is either the display of an advertisement (which
is defined) or the erection or use of any sign
or advertising
structure for advertising purposes. Other contentions on behalf of
Bouley are:-
1)
That the definition of the sign is circuitous since it is defined to
mean inter alia, any object used to display a sign or
which is
itself a sign. Therefore a sign is defined to mean any object; and
2)
That the By-Law contains a criminal proscription of the display of
any word, any object or any physical structure capable of
being used
to display an object.
In
respect of these examples, it is also contended that the phrase
for
advertising purposes'
does
not limit the scope of the By-Law and that accordingly the
proscription is vague and overbroad. It is also submitted that
this
is aggravated since other sections do not deal consistently with
'advertisements,
signs and advertising structures'.
So,
Section
2(1) refers only to a sign in respect of the information required
for applications submitted.
Section
10 refers to a
'sign'
and
an
'advertisement'
in
respect of the factors to be considered in assessing applications.
Section
44 refers to a
'sign'when
dealing
with the approval of applications.
Section
45 refers to both a
'sign'
and
an
'advertising
structure'
in
relation to the withdrawal of an application.
[23]
In dealing with the issue of vagueness, it has been held that the
doctrine of vagueness does not require absolute certainty
of law,
but that the law must indicate with reasonable certainty to those
who are bound by it and what is required of them so
that they may
regulate their conduct accordingly.
25
After
recording the need for intelligible criminal prohibitions so that
both citizens and law enforcement officers can identify
with
reasonable
certainty what conduct is prohibited, O'Regan J in her minority
judgment in
Bertie
van Zyi
said
the following:
'Of
course "(w)hat is required is reasonable certainty and not
perfect lucidity". Language is often imprecise and in
many
cases it will not be possible to draw with complete certainty the
boundaries of a legislative prohibition. Setting the test
as one of
"reasonable certainty" accepts that some imprecision is
unavoidable. It recognises that in most criminal
provisions there
will be a core of certainty about the meaning of a provision, and a
limited penumbral sphere of uncertainty.
Where the penumbral sphere
of uncertainty is limited, it will not fall foul of the
constitutional standard. However, where a
provision has no certain
core meaning at all, or where it has a significant penumbral scope
of uncertainty, it will probably
be constitutionally impermissible
.... The key questions to determine vagueness will be whether the
provision provides "fair
warning" to citizens of what
constitutes unlawful behaviour and whether it impermissibly
delegates the power to determine
whom should be prosecuted to law
enforcement officers with the attendant risks of arbitrary
application.
,
26
To
start with, I am of the view that the core meaning of the By-Law is
clear and that it
provides
fair warning to all citizens of what will constitute unlawful
behaviour, namely that
the
display of an advertisement or the erection or use of a sign or
structure for advertising
purposes
without the municipality's prior approval is prohibited.
[24]
While broad definitions are provided for the terms 'sign',
'advertisement', 'advertising' and 'advertising structure', these
definitions are not in my view inappropriate since the City records
that it needs to be able to regulate all outdoor advertising,
including new forms of advertising which may arise. The fact that
there is no reference to outdoor advertising 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 their may be some overlapping in the definition, the words 'or
which is in itself a sign
5
,
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 By-Law's definition. I am accordingly of the view
that on a proper purposive interpretation and
in the context of the
text as a whole, the By-Law is not impermissibly vague or overbroad.
[25]
Bouley contends that the signage By-Law is so vague that it is open
to manipulation and allows the City to achieve any result
it
desires. Its deponent alleges that there are
'many
instances of practical difficulties with the application of the
By-Law'
and
points to nine instances which he contends to evidence uncertainty
by the City in the use of its discretionary power regarding
the
application of the By-Law. In my view it is not necessary to deal
with the various instances relied on which Bouley's deponent
says he
gleaned from information supplied to him by other parties. To start
with, the specific matters referred to surface for
the first time in
Bouley's replying affidavit in the counter-application and do not
form part of the counter-application itself.
Secondly, all the
allegations are denied in a supplementary affidavit filed on behalf
of the City on whose behalf it is contended
that the alleged
difficulties are all of a minor nature and were to be expected with
regard to the practical implication of legislative
provisions. As to
the contention that the administrative decision making is not
sufficiently guided, the fact is that the By-Law
contains extensive
provisions in respect of the factors which are to be taken into
account when an application for the approval
of signage is
considered. Section C of the By-Law which bears the heading 'Charges
and General Factors in Considering
Approval
and / or Amendments/Conditions to Approval' gives clear guidance as
to the factors which the City must have regard to
when considering
applications and s D details factors relating to specific signs,
areas of control and commercial sponsored signs.
Section E contains
the standard conditions for approval. There is accordingly in my
view no merit in this attack.
[26]
Bouley's counsel did not pursue the initial objection to the effect
that since the By-Law does not indicate which one of
the English,
Afrikaans or Xhosa texts is to prevail in the case of a conflict
between them, a fatal oversight results and also
that the isiXhosa
version is incomprehensible. As explained in the
Drop-Inn
Group
case
where one meaning clearly does accurately express the intention of
the law giver, that version is plainly the version which
must be
adopted.
27
Should there be an incomprehensible version in the isiXhosa version,
the court will apply the English version of the text.
Deprivation
of Freedom without Good Cause
[27]
This objection concerns s 68 (1) of the By-Law which provides that
any person who contravenes or fails to comply with any
provision of
the By-Law shall be guilty of an offence and on conviction shall be
liable to a fine or imprisonment as set out
in the By-Law. The
submission on behalf of Bouley is that, properly interpreted,
imprisonment may follow a failure to comply
with a minor procedural
requirement of the By-Law such as a failure to submit the
information required for an application in
duplicate. A similar
provision is to be found in the North West Gambling Act No 2 of
2001. Section 82(1 )(i) of that act provides
that a person who
'contravenes
or fails to comply with any provision of this Act orany provision
made under Section 84 .... is guilty of an offence
and on conviction
.... liable to a fine or to be imprisoned for a period not exceeding
ten years or to both a fine and such imprisonment'.
In
Magajane
v Chairperson, North West Gambling Board and Others
28
the
Constitutional Court recorded with apparent approval the applicant's
acknowledgement that the section could be read so as
not to create
an offence for the failure to answer questions. This judgment was
cited by the City's counsel as support for his
submission that it is
only a contravention of or a failure to comply with those sections
of the By-Law which concern the activities
prohibited by the By-Law,
such as s 1 thereof which constitute an offence. In the heads of
argument submitted by the City's counsel,
it is recorded that a
search of the phrase
'any
person who contravenes or fails to comply with any provision of this
Act'
in
'South African Statutes' on Jutastat produced 33 positive results in
support of his submission that many laws contained a provision
similar to that under attack. Since imprisonment can only follow on
a trial the submission that the By-Law is invalid because
is
deprives offenders of freedom without good cause cannot be
sustained. This is confirmed by Currie and De Waal.
29
In
my view, the criminal sanctions for contraventions of sections of
the By-Law providing for prohibited activities are essential
for the
enforcement of the By-Law and a legitimate means of enforcement.
Differentiation
between First and Third Party Advertising
[28]
Bouley's counsel cited a number of examples in the Signage By-Law
which differentiate between first and third party advertisements
and
submitted that since the deferential treatment permeates the entire
By-Law, the By-Law should be struck down as a whole.
I do not
consider it necessary to deal with the various examples of
differential treatment which have been identified, for in
my view
the City has given a satisfactory explanation as to the need to
differentiate between the two forms of advertising. Briefly
stated
these are>
It
would be a more extensive limitation of rights to restrict a person
from advertising his or her own product, service or business
on
that person's property than it would be to restrict a person from
advertising a third party's product, service or business
on his or
her property.
First
party advertising fulfils a useful and necessary community
information function as source of the advertisement is immediately
identified by its location.
The
need to regulate outdoor advertising in Cape Town is important
because of its natural beauty and cultural historical significance.
In
the need to curb the total amount of visual 'clutter' more limits
are imposed on third party signage as this makes a greater
contribution to visual pollution due to the size and scale of the
advertising, that it is located in the most visible locations
and
because of the greater incidence of illumination on such signs.
Traffic
safety concerns justify stricter controls on third party signs.
[29]
Other distinctions which have a particular rational and legitimate
purpose are said to include:-
Only
third party advertising is subject to a limited period of approval
(five years), whereas approval for first party advertising
is
limited only when the business on a particular property changes.
The limitation in the time period allowed for third partysignage
enables the City to reassess the continued appropriateness of a
sign in the light of a possible change in circumstances.
Only
third party signs are subject to linear spacing requirements from
other road signs or from signs larger than a certain area.
First
party signs are exempted from these requirements so as to allow
owners to advertise their businesses wherever their businesses
are
located.
[30]
In
Ad
Outpost
30
,
this
court found that there is a rational distinction between third party
and own party advertising. That finding was made pursuant
to a
challenge based on s 9 (1) of the Constitution (the Equality
Clause). That decision is binding on me and it has not been
suggested that it is clearly wrong.
Attack
on Specific Provisions of the Law
[31]
When dealing with these attacks, it is necessary to have regard to
important principles which apply to constitutional challenges,
namely that a consideration of constitutional issues
in
vacuo
is
typically entrusted to the legislature and that such issues are best
decided in the context of a live controversy.
31
Bouley
contends that ss 75 -79 are inconsistent with PAJA and s 33 of the
Constitution. Sections 75 and 76 are quoted in para
[4]. Section 77
provides for compensation to be paid to any person for unreasonable
loss or damage caused by the removal or alteration
of a sign by the
City. Any costs incurred by the City in removing signs or in doing
alterations or other works required in terms
of a notice may be
recovered from the person on whom the notice was served in terms of
s 78. Section 79 makes provision for the
Cityto remove a sign
without the need of a court order in circumstances where the sign is
reasonably considered to be a danger
to life or property.
[32]
Bouley's challenge is to the effect that s 75 (which is recorded in
full in para 4) makes no provision for a hearing after
the notice
has been served but before any steps are taken. This was the stance
initially adopted by Bouley, but in reply it appears
to contend that
such a party must be given a hearing before the notice is issued. In
my view the notice is not hit by s 33 of
the Constitution which
affords everyone the right to administrative action that is lawful,
reasonable and procedurally fair;
nor is PAJA applicable.
Administrative action in terms of s 1 of PAJA applies to the
exercise of a public power or the performing
of a public function in
terms of legislation by an organ of state which adversely affects
the rights of any person and which
has a direct, external legal
effect. The notice does not affect the rights of a person who has
erected signage unlawfully. It
also does not have any direct legal
effect. The notice also does not have any direct legal effect for it
does not require finality
in the determination of rights. De Ville
32
explains that decisions which have an effect on an individual's
rights would normally exclude notifications and that
'direct
effect'
would
require finality in the determination of rights
'which
would exclude preliminary steps in multi-staged decisions'.
It
has also been held that the decision to recommend the prosecution of
a person or a decision to sue does not prejudicially impact
on a
person's right.
33
[33]
The submission by the City's counsel that a person receiving a
notice could, if he or she wished, make representations to
the City,
is not in my view a submission that a right to a hearing after
receipt of the notice should be read into the By-Law
as Bouley's
counsel would have it. The By-Law does not prohibit anyone from
making representations and since it provides that
a notice may be
withdrawn or varied by the City, by agreement with the person
served, an interaction with the person served is
implied. For the
reasons I have given I am of the view that neither PAJA nor the
constitutional right to administrative justice
affords a party who
has received the notice the right to a hearing. As to the
institution of criminal proceedings, s 1(b)(ff)
of PAJA provides
that a decision to institute a prosecution is not administrative
action.
[34]
Three other sections are challenged on the basis that they are
inconsistent with the provisions of the Constitution. These
are:-
1)
Section
67 which provides that
'The
Municipality shall be entitled, through its duly authorized
officers, and following prior written notification to the owner
or
occupant of a property, to enter into and upon any premises, at a
reasonable time for the purpose of carrying out any inspection
necessary for the proper administration and enforcement of the
provisions of this By-Law.
2)
Section
74 provides for three presumptions in respect of persons charged
with an
offence
under the By-Law. These are
2.1)
A presumption that a person who organised or controlled an event
knowingly displayed (or caused or allowed to be displayed)
unlawful
signs or posters in connection with the event.
2.2.)
A presumption that a person whose name appears on or whose product
or services are advertised on an unlawful sign knowingly
displayed
(or caused or allowed to be displayed) such sign.
2.3.)
A presumption that an owner of land or a building upon which an
unlawful sign was knowingly displayed (or caused or allowed
to be
displayed) such sign.
Bouley
contends that this section violates the presumption of innocence
contained in s 35 (3) (h) of the Constitution.
3)
Finally, Bouley contends that the fines provided for in s 71 of the
By-Law extend the criminal jurisdiction of the magistrates'
court
impermissibly and that s 81 of the By-Law which reads:-
'Notwithstanding
anything to the contrary contained in any law relating to
Magistrates' Courts, a Magistrate shall have jurisdiction,
on the
application of any Local Authority, to make an Order for the
enforcement of any of the provisions of this By-Law or of
any
approval, refusal or condition granted or applicable in terms
thereof.'
is
therefore invalid.
[35]
None of these challenges is in respect of a live issue before the
court and the court is being asked to decide on the
constitutionality
of the provisions
in
vacuo.
I
am accordingly of the view that it would not be proper to embark on
the further enquiries which Bouley proposes. Insofar as
the
reference to s 81 of the By-Law is concerned, I should however
record that the City has conceded that the phrase
'notwithstanding
anything to the contrary contained in any law relating to the
Magistrates' Court'
does
impermissibly seek to extend the criminal jurisdiction of the
magistrates' court.
[36]
The requirements for the final interdictory relief which is sought
are well-known. They are that the applicant must establish
a clear
right, that an actual injury has been committed or is reasonably
apprehended and that there is no other satisfactory
remedy available
to it. As indicated, the only submissions for Bouley in this regard
related to the availability of an alternative
remedy in respect of
which I have found for the City. I am also satisfied that the City
established the other requirements. The
clear right flows from the
City's statutory obligations to enforce the By-Law and its right to
apply for an interdict for such
purpose was recognised in
Huisamen
and Others v Port Elizabeth Municipality.
34
Unlawful
conduct is an injury of the right of the City which is charged with
enforcing the proscribed conduct.
[37]
While my discretion is more limited when deciding whether or not to
grant final relief, Bouley's conduct must weigh heavily
against it
for it chose to erect the sign well knowing that the City's
permission for such erection had not been obtained.
[38]
I have indicated that in my view the application is to be decided on
the situation which pertained when the papers were served
on Bouley.
On this basis the City would be entitled to an order in terms of
prayer 3 of the notice of motion, namely that Bouley
be directed to
remove the signage. Since the machinery of s 75 of the By-Law has in
effect been employed, the City would be entitled
in terms of s 76 to
remove the sign. I do not think it is of great importance as to who
should remove the sign, but it may be
more suitable for Bouley to do
so. I accordingly propose to merge the two orders which might have
been made so as to provide
that the City may remove the sign if
Bouley does not do so within a stated time.
[39]
The following orders will issue:-
The
application succeeds and the respondent is directed to remove the
unlawful signage erected or affixed to its property at
Erf 173335
Paarden Eiland in contravention of the City of Cape Town's Outdoor
Advertising and Signage By-Law 2001 within 14
(fourteen) days from
the date of this order, failing which the City of Cape Town may
effect such removal.
The
respondent is to pay the applicant's costs.
The
respondent's counter-application is dismissed with costs.
The
costs referred to in 2) and 3) above include the costs of two (2)
counsel.
R
B CLEAVER
1
City
of Cape Town v Dormell Properties 142 (Pty) Ltd and Others
case
no 18167/2008, judgment dated 13 November 2008.
2
Joubert
(ed)
The
Law of South Africa (2
ed)
vol 11. Interdicts (LTC Harms) para 390.
3
1998
(1)SA 477 (ECD).
4
Sithonga
v Minister of Safety and Security and Others
2008
(1) SACR 376
(TK) at para 15.
5
Shorter
Oxford Dictionary
5
ed (2002).
6
Free
Merriam-Webster Dictionary
www.merriam-webster.com/dictionary
www.merriam-webster.com/dictionary
,
7
Webster's
Online Dictionary
www.websters-online-dictionary.org
www.websters-online-dictionary.org
.
8
Making
Law a Guide to Municipal Councils
Prof
Nico Steytler, Jaap de Visser, Johann Mettler, a publication of The
Community Law Centre, University of the Western Cape.
9
City
of Cape Town v Ad Outpost (Pty) Ltd and Others
2000
(2) SA 733
(C).
10
North
Central Local Council and South Central Local Council v Roundabout
Outdoor (Pty) Ltd and
Others
2002
(2) SA 625(D).
11
City
of Cape Town v Ad Outpost (Pty) Ltd and Others (supra).
12
North
Central Local Council and South Central Local Council v Roundabout
Outdoor (Pty) Ltd and
Others (supra)
13
The
only limit placed on the City to control the content of a sign is
that to be found in s 10(8)(2) which provides that
'no
sign or advertisement may be designed or displayed that will display
any material or graphic which, whether in form, content
or both, may
reasonably be expected to cause offence to the public or to an
identifiable class of persons'.
14
Vancouver
(City) v Jaminer
2001
BCCA 240
(CanLII), relying on
Committee
for the Commonwealth of
Canada v Canada
1991
CanLI1119 (SCC).
15
Peterborough
(City) v Ramsden
1993
CanLII 60
(SCC).
16
North
Central Local Council and South Central Local Council v Roundabout
Outdoor (Pty) Ltd and Others (supra).
17
City
of Cape Town v Ad Outpost (Pty) Ltd and Others (supra).
18
North
Central Local Council and South Central Local Council v Roundabout
Outdoor (Pty) Ltd and Others
2002
(2) SA 625
at D-F
(Constitutional
Law of South Africa
at
20-50 - 20-51).
19
At
635B-C.
20
City
of Cape Town v AD Outpost (Pty) Ltd and Others (supra)
at
p 749D-F.
21
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty)
Ltd and Others: In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1)
SA 545
(CC) at para 22.
22
Bertie
van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
2010
(2) SA 181
23
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at para 108
24
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at para 109.
25
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at para 108.
26
Bertie
van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
2010
(2) SA 181
(CC) at para 103.
27
Drop-Inn
Group of Liquor Supermarkets (Pty) Ltd v Chairman, Liquor Board
andAno
1986
(4) SA 1042
(C) at1046C-F.
28
2006
(5) SA 251
(CC).
29
The
Bill of Rights Hand Book
lain
Currie and Johan de Waal 5
th
ed
(2005) p301.
30
City
of Cape Town v Ad Outpost (Pty) Ltd and Others (supra)
at
744A-F.
31
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
2009
(4) SA 222
(CC) at paras 221 and 222.
32
J.
de Ville
Judicial
Review of Administrative Action in South Africa
revised
1
st
ed
(2005) at p 54. See also
Registrar
of Banks v Regal Treasury Private Bank Ltd (under curatorship) and
Another (Regal Treasury Bank Holdings Ltd intervening)
2004
(3) SA 560
(W) at 567G-H.
33
Park-Ross
v Director: Office for Serious Economic Offences
1998
(1) SA 108
(C) at para 15.
Eastern
Metropolitan Substructure v Peter Klein Investments (Pty) Ltd
2001
(4) SA 661
(W) at para 14.
34
(supra)
at
483I-484B.