About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2013
>>
[2013] ZAKZDHC 15
|
|
Ethekwini Municipality v Swish Property Eight (Pty) Ltd (1071/2012) [2013] ZAKZDHC 15 (29 April 2013)
Reportable
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No: 1071/2012
In
the matter between:
eTHEKWINI
MUNICIPALITY
Applicant
and
SWISH
PROPERTY EIGHT (PTY) LTD
First
Respondent
WIDEOPEN
PLATFORM (PTY) LTD
Second
Respondent
JUDGMENT
Delivered
on 29 April 2013
Vahed
J:
[1]
The applicant municipality seeks an Order directing the respondents
to remove certain advertising signage and related structures
erected
on immovable property situate at 37 Bram Fischer (Ordnance) Road,
Durban. The immovable property is owned by the first
respondent and
the signage and related structures were erected, and are owned, by
the second respondent. Additional interdictory
relief is also sought
with regard to the erection of advertising signage and supporting
structures in the future in the absence
of the applicant’s
permission first being sought and obtained. The respondents oppose
the relief sought.
[2]
The applicant’s advertising bylaws provide for advertising
signage to be erected in any public place within the city’s
precincts only upon written permission being granted therefor and
only after written application had been made for such permission
upon
payment of prescribed fees. These provisions are contained in,
inter
alia,
sections 2 and 4 of the applicant’s advertising bylaws.
[3]
It is common cause, alternatively not in dispute, that:
a.
the advertising signage and related structures concerned were erected
without the authority of the applicant;
b.
the applicant has the requisite constitutional capacity and authority
to make the relevant bylaws;
c.
the relevant bylaws and the applicant’s advertising signage
policy are applicable to the matters at hand;
d.
the respondents derive financial benefits from the erection and
display of the advertising signage erected on the immovable property.
[4]
Although the respondents initially raised a number of defences, all
but one were abandoned or not persisted in at the hearing
of the
opposed application. The only defence argued related to the
respondents’ right to freedom of expression (ie. free
commercial speech) and the manner in which this was curtailed or
impacted upon by the applicant’s bylaws.
[5]
A number of cases relating to outdoor advertising have come before
the Courts. In them varied challenges to a local authority’s
right to regulate advertising signage have been launched. It now
seems clear that advertising is regarded as commercial speech
and
that it is worthy of constitutional protection but in addition local
authorities are free to regulate outdoor advertising.
See
City
of Cape Town v Ad Outpost (Pty) Ltd & Ors
2000 (2) SA 733
(CPD),
North
Central & South Central Local Council v Roundabout Outdoor (Pty)
Ltd & Ors
2002
(2) SA 625
(DCLD),
City
of Cape Town v Bouley Properties (Pty) Ltd
[2010]
ZAWCHC 650
(21 December 2010) and
Independent
Outdoor Media (Pty) Ltd & Ors v City of Cape Town
[2012] ZASCA 46
(28 March 2013).
[6]
The respondents claim that their right to commercial expression has
been limited by the bylaws in that in order to seek permission
for
the erection of the relevant signage the payment of certain fees is
expected of them. They contend that their rights are limited
to the
extent that the payment of the fee is required of them. Thus they
contend that the bylaws, in that regard, constitute an
unwarranted
limitation of their right and are accordingly unconstitutional.
[7]
In dealing with this aspect in its answering affidavit it appears
plain that the respondents’ complaint is not concerned
so much
with the levying of fees
per
se,
but with the quantum of the fees charged by the applicant for the
size and class of the signage concerned. This they do in broad
terms,
employing a number of adjectives like
exorbitant
and
excessive
but no attempt is made to explain those concepts against the backdrop
of the revenue generated by the signage. Indeed, the revenue
earned
by the respondents is not disclosed at all. In this regard the
reliance by the respondents on
Dawood
& Ano v Min of Home Affairs & Ors; Shalabi & Ano v Min of
Home Affairs & Ors; Thomas & Ano v Min of Home
Affairs &
Ors
[2000] ZACC 8
;
2000 (3) SA 936
(CC) is misplaced. There the Constitutional Court
visited with invalidity the application fees imposed on foreign
spouses for residence
permits because the quantum thereof, when
compared with the applicants’ means, was found to be
prohibitive.
[8]
In the present case the bylaws themself prescribe no particular fee.
The fees themselves are determined elsewhere by regulation.
[9]
The respondents have urged me to find that the applicant needs to
justify its tariffs as being a justifiable limitation to the
exercise
of the respondents’ rights in terms of section 36 of the
Constitution and to find that it has failed to discharge
the onus
imposed upon it in that regard. For that proposition they rely on
NDPP
v Phillips & Ors
2002 (4) SA 60
(WLD).
[10]
It seems to me that if the respondents’ real complaint is one
of affordability they have to make out a genuine case in
that regard.
They only way, in my view, that that can be achieved is by way of a
review of a decision refusing to consider an application
for
permission linked directly to the question of affordability of the
applicable tariffs. That is not the case that is before
me.
[11]
That approach renders it unnecessary to decide whether the imposition
of a tariff
per
se
requires justification.
[12]
Thus I am of the view that the applicant is entitled to the relief
sought.
[13]
I grant the following Order:
a.
The first and second respondents are directed to forthwith remove all
outdoor advertising signs and supporting structures erected
and
installed at the property located at 37 Braam Fischer (Ordnance)
Road, Durban, KwaZulu-Natal ("the property”).
b.
In the event of the respondents failing to comply with paragraph (a)
above within twenty one (21) days hereof, the Sheriff of
this Court
is authorised and directed to take such steps as may be necessary,
including utilising the services of the applicant
or of its agents,
to give effect thereto.
c.
The respondents are interdicted and restrained forthwith from
erecting or permitting or causing the erection and installation
of
any advertising signs and supporting structures on the property
without the applicant’s permission therefor first being
sought
and obtained.
d.
The respondents are directed to pay the costs of this application,
such costs to include:
i.
those incurred consequent upon the execution of the Order
foreshadowed in paragraph (b) above;
ii.
those costs incurred consequent upon the employment by the applicant
of two counsel; and are to borne by the respondents jointly
and
severally, the one paying, the other to be absolved.
Vahed
J
CASE
INFORMATION
Date
of Hearing: 18 February 2013
Date
of Judgment: 29 April 2013
Applicant’s
Counsel: G O Van Niekerk SC
S
Mahabeer
Applicant’s
Attorneys: Naidoo Maharaj Inc
141
Problem Mkhize (Cowey) Road
Durban
(Ref:
Ms Y Naidu/Linda/E0142)
Respondent’s
Counsel: M Bingham
Respondent’s
Attorneys: Kuilman Mundell & Arlow
Locally
represented by: Warrick De Wet Attorneys
209
Musgrave Park
18
Musgrave Road
Durban
(Ref:
Ronallda Pillay/NN/W78)