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[2007] ZASCA 31
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McGregor v City of Johannesburg (163/06) [2007] ZASCA 31; [2007] SCA 31 (RSA); 2008 (1) SA 308 (SCA) (28 March 2007)
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THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Not reportable
Case no: 89/06
In the matter
between:
BRUCE E McGREGOR
......................
FIRST APPELLANT
CORPCOM OUTDOOR (PTY)
LTD
......................
SECOND APPELLANT
and
CITY OF JOHANNESBURG
......................
RESPONDENT
CORAM: HOWIE P, CLOETE, LEWIS JJA
et
SNYDERS, THERON AJJA
DATE
OF HEARING: 9 MARCH 2007
DATE
OF DELIVERY:
28 MARCH 2007
Summary:
Local
government – Interpretation of Municipal by-laws. Approval
granted to display an advertising sign for a fixed period.
Promulgation of new by-laws preserves the approval granted in terms
of repealed by-laws but does not extend the scope of the right
previously granted.
Neutral
citation:
This judgment may be
referred to as
McGregor v City of
Johannesburg
[2007] SCA 31 RSA
_____________________________________________________________________________
JUDGMENT
_____________________________________________________________________________
THERON AJA:
[1] The respondent, a metropolitan municipality, sought
and obtained an order before Cachalia J in the Johannesburg High
Court, interdicting
the appellants from displaying an advertising
sign and advertising hoarding on the basis that its by-laws were
being contravened.
An appeal to the full court was dismissed, per
Satchwell and Tsoka JJ (Goldstein J dissenting). The further appeal
to this court
is with its special leave.
[2] The first appellant is the registered owner of
certain residential property on which an advertising sign and
hoarding (‘the
sign’) belonging to the second appellant
is erected. In terms of a letter dated 1 July 1999, the respondent’s
predecessor,
the Eastern Metropolitan Local Council (EMLC), approved
an application by the second appellant to erect the sign on the
property.
The approval, which it is important to emphasise, was to
operate for the period 1 July 1999 to 30 June 2002, was granted in
terms
of the Signs and Advertising Hoardings: By-laws (the ‘1995
by-laws’).
1
The 1995 by-laws were repealed by Notice 6271 of 1999
(the ‘1999 by-laws’).
2
The 1999 by-laws were in turn repealed, with effect from
1 December 2001, by Notice 7170 of 2001 (the ‘2001 by-laws’).
3
[3] Both the 1999 and 2001 by-laws contained a provision
(clause 38(2) in the former and 43(2) in the latter) which reads:
‘Anything done under or in terms of any provision [of the
by-laws repealed] … shall be deemed to have been done under
the corresponding provisions of these by-laws and such repeal shall
not affect the validity of anything done under the by-laws so
repealed.’
[4] By virtue of clause 5(26) of the 2001 by-laws,
4
the display of advertising signage on property zoned
‘residential’ was declared to be unlawful. No similar
provision is
to be found in the 1995 or the 1999 by-laws. It is
common cause that the sign was erected on property which is zoned
‘residential’.
[5] Clause 4(3) of the 2001 by-laws, which is at the
heart of the present dispute, provides:
‘Any sign which does not comply
with the provisions of these by-laws and which was lawfully displayed
on the day immediately
preceding the date of commencement of these
by-laws shall be exempt from the requirements of these by-laws if the
sign in the opinion
of the Council is properly maintained and is not
altered, moved or re-erected as contemplated in Clause 2(2
).
’
5
The appellants contend that in terms of the approval
granted by the EMLC the sign was lawfully displayed on 30 November
2001, which
was the day immediately preceding the date of
commencement of the 2001 by-laws. On that basis, so it was argued,
the sign falls within
the ambit of the exemption created in terms of
clause 4(3), which exempts the sign from the operation of the 2001
by-laws, provided
that the sign is properly maintained and not
altered, moved or re-erected.
[6] The approval granted by the EMLC was for a fixed
period (1 July 1999 to 30 June 2002) and it is common cause that the
promulgation
of the 2001 by-laws did not in any way limit such
approval. What is in dispute is whether the 2001 by-laws extended the
scope of
the appellants’ right to display the sign beyond the
limit of the original approval.
[7] Clause 4(3) has to be interpreted in context, having
regard to the purpose of the by-laws and the mischief sought to be
regulated.
The purpose of the by-laws is clearly to regulate the
display of signage within the respondent’s area of
jurisdiction.
6
This includes regulating the maintenance of the signage,
restrictions, offences, sanctions and the granting of exemptions. In
my view,
and for the reasons that follow, the construction contended
for by the appellants undermines and detracts from this general
purpose.
[8] The purpose of clause 4(3) is to preserve that which
had lawfully come into existence prior to the promulgation of the
2001 by-laws.
7
The effect of clause 4(3) is to preserve existing rights
even though such rights may be inconsistent with the 2001 by-laws.
Clause
4(3) further exempts a sign that was lawfully displayed
immediately before the 2001 by-laws came into operation from the
requirements
of such by-laws to the extent necessary to preserve the
right already granted. By exempting the sign from the requirements of
the
2001 by-laws, clause 4(3) does no more than preserve the validity
of any approval that may have been granted in terms of repealed
by-laws; the exemption does not in any way serve to extend the
original approval, by, for example, deleting any limitations to which
such approval had been subject. In this matter, the appellants were
exempted from the requirement of obtaining the approval of the
respondent to erect and display the sign (clause 2(1)), which
approval the respondent was precluded from granting after 30 November
2001 by reason of the enactment of clause 5(26). It follows that the
sign was lawfully displayed until the period for which approval
was
granted for its display expired. After 30 June 2002, the continued
display of the sign was unlawful.
[9] To interpret clause 4(3) in the manner contended for
by the appellants would mean that a particular class of signage would
be
unregulated (subject only to the requirements properly to maintain
and not to move or alter the sign) and completely excluded from
the
provisions of the respondent’s by-laws. According to the
appellants, approval to display the sign for a fixed period would,
by
virtue of the exemption in clause 4(3), and subject only to the
requirements in that clause, be converted to approval in perpetuity.
That cannot be so. I respectfully agree with Satchwell J that it
would be absurd permanently to exempt from the provisions of the
2001
by-laws a sign which is specifically proscribed in terms of such
by-laws (clause 5(26)). A further consequence of accepting
the
appellants’ interpretation is that signs which do not comply
with the provisions of the 2001 by-laws, may, by reason of
such
non-compliance, be favoured with extended rights. This interpretation
leads to a glaringly absurd result which could never have
been
intended by the legislature.
8
[10] I turn to deal with the argument, which found
favour with Goldstein J, that to adopt the respondent’s
interpretation of
clause 4(3) would render the latter ‘superfluous
since it would be duplicating the effect of section 43(2)’.
Both clauses
4(3) and 43(2) have the effect of preserving existing
rights. This does not mean that either clause is rendered
superfluous. Clause
43(2) preserves the validity of legal acts
performed in terms of previous by-laws, provided such acts are
permitted in terms of the
new by-laws. The erection of a sign in a
residential area is not permitted in terms of the new by-laws (clause
5(26)). Clause 4(3)
preserves what was lawfully done in terms of the
repealed legislation and which has, in terms of the new legislation,
become unlawful.
[11] For these reasons, the appeal is dismissed with
costs, including the costs of two counsel.
L V Theron
Acting Judge of Appeal
CONCUR:
HOWIE
P
CLOETE
JA
LEWIS
JA
SNYDERS
AJA
1
The
1995 By-laws were contained in Local Authority Notice 37 of the
Municipality of Sandton
,
published in the Gauteng Provincial Gazette No 1 of 4 January 1995.
2
Notice
6271 contained the Eastern Metropolitan Local Council Advertising
Signs and Hoardings By-laws and was published in the Gauteng
Provincial Gazette No 80 of 29 September 1999.
3
Notice
7170 was published in the Gauteng Provincial Gazette Extraordinary
No 234 of 28 November 2001 and contained the Advertising
Signs and
Hoarding By-laws for the City of Johannesburg.
4
Clause
5(26) renders it unlawful to, inter alia, erect or maintain:
‘Any third party advertising sign on any property zoned
“Residential” in terms of the relevant Town Planning
Scheme whether secondary rights or not have been granted by Council
and which are exercised on the erf.’
5
The
relevant portions of clause 2 read:
‘(1) No person shall display or erect any advertising sign or
hoarding or use any advertising sign or hoarding or use any
structure or device as an advertising sign or hoarding without first
having obtained the written approval of the Council; provided
that
the provisions of this Clause shall not apply to signs contemplated
in Clause 4,
(2) No sign erected displayed (
sic
) with the approval of the
Council shall in any way be altered, moved, re-erected nor shall any
alteration be made to the electrical
wiring system of such sign
except for the purposes of renovating or maintenance, without the
further approval of the Council in
terms of sub-clause (1).’
6
The
Preamble to the 2001By-laws reads:
‘WHEREAS the community of the City of Johannesburg has
legitimate interests in ensuring:-
1. that signs or advertisements do not constitute a danger or
nuisance to members of the general public whether by way of
obstruction,
interference with traffic signals or with the
visibility of such signals, light nuisance or otherwise;
2. that signage or advertising displayed in its living environment
is aesthetically pleasing, appropriate and placed at appropriate
sites with an uncluttered effect;
3. that its environment for tourism is characterised by a high
standard of user friendly signage and advertising satisfactorily
integrated into the environment;
AND WHEREAS individual businesses have legitimate interests in the
proper advertising of their businesses, wares and products;
AND WHEREAS it is the duty of the Council of the City of
Johannesburg to balance the competing interests in a fair,
equitable,
flexible and responsible way;’
7
Clauses
in other legislation similar to clause 4(3) have been interpreted by
our courts as having the purpose of preserving existing
rights.
R
v Shoolman
1937 CPD 183
;
British Chemicals and Biologicals
(SA) (Pty) Ltd v South African Pharmacy Board
1955 (1) SA 184
(A);
SA Warehousing Services (Pty) Ltd v National Transport
Commission
1982 (3) SA 840
(A) at 845D-E.
8
Poswa
v MEC for Economic Affairs, Environment and Tourism, Eastern Cape
2001 (3) SA 582
(SCA) para 11.