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[2011] ZAKZPHC 50
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Body Corporate of the Scheme Van der Stel and Another v Ethekwini Municipality (AR26/11) [2011] ZAKZPHC 50 (1 September 2011)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
No: AR26/11
In
the matter between:
THE
BODY CORPORATE OF THE SCHEME
VAN
DER STEL First Appellant
WIDEOPEN
PLATFORM (PTY) LTD Second Appellant
and
ETHEKWINI
MUNICIPALITY Respondent
JUDGMENT
SEEGOBIN
J
[1] This is an appeal with leave of
the court
a quo
(K Pillay J) against the whole of her judgment delivered on 4 June
2010.
[2] The primary relief that was
applied for and granted to the respondent in the court
a
quo
was an interdict
directing the appellants to remove an advertising billboard and
supporting structures at 15 Gillespie Street,
Durban. The appellants
were also restrained from erecting any signage, sky sign or billboard
in contravention of any by-law on
the said property without first
having made proper application to the respondent for permission to do
so and obtaining the grant
of such permission from the respondent.
[3] The principal issue for
determination before the court
a
quo
was the correct
interpretation and application of the provisions of section 29 of the
National Building Regulations and Building
Standards Act No.103 of
1977 (“the NBR”).
[4] There is no dispute on the
following matters: In terms of section 156(1)(a) read with Schedule
5, Part B of the Constitution
of the Republic of South Africa, 1996,
and the Local Authorities Ordinance No.25 of 1974 (“the
Ordinance”), the respondent
is empowered to make and administer
bylaws relating to advertising in public areas. The respondent has
promulgated bylaws for
the regulation and control of outdoor
advertising undertaken in its area of jurisdiction.
1
The respondent’s by-laws require that its written permission be
obtained prior to any advertising signs being erected and
displayed.
2
The property where the sign was erected and displayed falls within
the respondent’s area of jurisdiction. The first appellant
is
the owner of the property where the sign was erected, while the
second appellant was responsible for erecting and displaying
the
disputed sign. The sign in question was constructed of a canvas type
material attached to a steel frame fixed to the wall of
the building.
The sign covered more than seventy five percent (75%) of the west
facing wall of the building. The respondent’s
by-laws
3
prohibit the display or erection of signs which obstruct,
inter
alia
, any street fire
escape, exit way or any window or door or other opening used as a
means of egress from the premises or for ventilation
or for
fire-fighting purposes. The advertising sign and supporting
structure were positioned in a manner that obstructed windows.
The
advertising sign and supporting structure were erected and displayed
without the respondent’s prior written permission.
By the time
the application was finalised in January 2010, the advertising sign
and supporting structure remained in place.
[5] The appellants’ challenge
to the respondent’s authority concerning its bylaws is based on
an argument that Chapter
IV
of the Building Bylaws
which constitutes the Advertising Bylaws was repealed by the NBR.
The alternative argument relied on by
the appellants is that the 2010
FIFA Bylaws do not apply to the property where the unauthorized sign
is displayed because the place
where the sign is located is not in a
“
place
owned, leased, administered by or under the control of”
the respondent. In
sub-para 18.3.2 of their heads of argument the appellants claim, for
the first time, on infringement of a so-called
“
constitutional
right to advertise”.
No such challenge was made in the court
a
quo
and there is no reason
why such a challenge should be entertained on appeal.
[6] The purpose of the NBR is
contained in the preamble thereto and reads:
“
To
provide for the promotion of uniformity in the law relating to the
erection of building in the areas of jurisdiction of local
authorities; for the prescribing of building standards; and for
matters connected therewith”.
[7] Section 29 of the NBR provides
for
Repeal of Laws
as follows:
“
1)
Subject
to the provisions of section 31 the provisions of any law applicable
to any local authority are hereby repealed insofar
as they confer a
power to make building regulations or bylaws regarding any matter
provided for in this Act: Provided that such
provisions shall be
deemed not to have been repealed in respect of –
any
such building regulation or bylaw which has not been replaced by or
which is not repugnant to any national building regulation;
the
area of jurisdiction, or any part thereof, of any local authority
insofar as it has in terms of section 2(2) been exempted
from the
application of any national building regulation, irrespective of
whether such area of jurisdiction or part was exempted
after the
commencement of such national building regulation.
A
local authority shall within six months after the coming into
operation of the National Building Regulations and Building
Standards Amendment Act, 1989, submit any building regulation or
bylaw referred to in paragraph (a) of sub-section (1), and
any
standard building regulation referred to in the proviso to section
31, which is applied by the local authority by reason
thereof that
it is considered that the regulation or bylaw, or standard building
regulation has not lapsed by virtue of sub-section
(1) or section
31 as the case may be, in consolidated form in both official texts
to the Minister.”
[8] The purpose of the NBR and the
objective sought to be achieved by section 29 must be looked at in
conjunction with the law
that was applicable when the NBR came into
effect. The existing law at the time which empowered the respondent
to pass bylaws
was the Local Authorities Ordinance referred to above.
Section 266 of the Ordinance set out the purposes for which bylaws
could
be made, section 267 provided for general provisions which may
be included in bylaws while section 268 set out the procedure for
the
promulgation of bylaws which in terms of section 268(5) would gain
the force of law on promulgation in the Gazette. The power
conferred
on the respondent to make advertising bylaws were contained in
section 266(1)(a) of the Ordinance. The power to make
“
building
regulations or bylaws
” was contained in section 266(1)(d).
There is no dispute raised about these bylaws having been duly and
properly promulgated
and that they have the force of law.
[9] The appellants’ argument
that the bylaws have been repealed by section 29 of the NBR is, in my
view, unsustainable for
the following reasons. In terms of section
29(1) of the NBR, the provisions of any law applicable to any local
authority are repealed
“
insofar as they confer a power to
make building regulations or bylaws regarding any matter provided for
in this Act”.
It seems that the repeal was aimed at the
empowering legislation and not the bylaws. The power to repeal in
section 29(1) is subject
to the proviso that such provisions in the
empowering legislation will be deemed not to have been repealed “
in
respect of”, inter alia:
“
any
such building regulation or bylaw which has not been replaced by or
which is not repugnant to any National Building Regulation.”
[10] Bearing in mind that section
266(1)(d) of the Ordinance dealt with the power to make “
building
regulations or bylaws
”, it seems that the target of the NBR
was this section, namely, section 266(1)(d) and not section 266(1)(a)
which deals with
advertising bylaws.
[11] Even if one were to assume that
section 29 of the NBR can be read to be of application to the
advertising bylaws, the appellants
were unable to identify any
provision in those bylaws which does not satisfy one of the two
alternative requirements, that is,
either :
replaced by; or
repugnant to a National Building
Regulation.
[12] At the hearing of the appeal on
8 August 2011, Mr
Jeffreys SC
who, together with Mr
Bingham
,
appeared on behalf of the appellants, quite fairly and correctly, in
my view, conceded that there was nothing in the provisions
of section
29 which were aimed at the respondent’s advertising bylaws. It
follows therefore that the appeal must fail.
In light of this the
appellants’ alternative argument relating to the respondents
powers in terms of the 2010 FIFA World
Cup falls by the way-side.
[13] I accordingly make the following
order:
The appeal is dismissed with costs.
________________
________________
Balton
J
________________
Gorven
J
1
Chapter
IV
of the respondent’s Building Bylaws
constitutes the Advertising Bylaws and is headed: “Advertising
Signs”.
2
Section 2 of Chapter
IV
states: “2
Advertisements
and signs for which approval is required
: Subject to the
provisions of this chapter no person shall erect, alter, display or
maintain or cause or permit to be erected,
altered, displayed or
maintained any advertisement or sign which is visible from or which
in the case of an advertisement can
be beard in any public place
except under and in accordance with the written permission of the
City Engineer.
3
Section 11(1)(C) of the By-Laws