IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE Numbers: 2024 – 032964









In the matter between:-
VAN TILL OUTDOOR (PTY) LTD First Applicant
DOUBLE OPTION TRADING (PTY) LTD Second Applicant
and
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY First Respondent
THE MUNICIPAL MANAGER OF CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY Second Respondent
HEAD OF DEPARTMENT: JOHANNESBURG
METROPOLITAN POLICE DEPARTMENT Third Respondent

(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO


8 August 2025

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Summary: Declaratory relief – principles considered – direct interest in matter –
Court having discretion to grant relief – applicants having proper interest in matter –
grounds made out for Court exercising di scretion – applicants entitled to declaratory
relief
Declarator – rights of applicants considered – applicants entitled to lawful
enforcement of By-laws – conduct of respondents amount to unlawful enforcement –
impoundment not provided for in bylaws – impoundment constitutes infringement of
right of applicants to conduct business without unlawful interference – right to relief
made out
Declarator – doctrine of ripeness – applicants providing proper factual substratum for
relief sought – matter not premature – live dispute remains between parties – likelihood
of prejudice should relief sought not be granted – dispute not moot – declaratory relief
justified
Interdict – principles considered – applicants having clear right where it comes to
lawful enforcement of By-laws – reasonable apprehension of prejudice where it comes
to infringement of rights – no alternative remedy available – interdict granted
By-laws – interpretation of By -laws – no provision made for impoundment as
mechanism of enforcement – enforcement proceedings consisting of compliance
notice and criminal prosecution – purpose of By -law enforcement is to ensure
compliance and not punishment – impoundment unlawful

JUDGMENT


SNYMAN, AJ
Introduction

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[1] How far can the City of Johannesburg go when seeking to enforce its Outdoor
Advertising By-Laws of 2009 (the Advertising By-laws)1? That is the question
that lies at the heart of the current matter. In this context, the matter concerns
an application brought by the applicants seeking declaratory and interdictory
relief. According to the applicants, the conduct of the officers of the
Johannesburg Metropolitan Police Department (JMPD) in impounding property
of the applicant where it comes to enforcing the Advertising By-laws is unlawful,
and an interdict should be granted prohibiting such conduct going forward. The
application has been opposed by the respondents.

[2] The respondents’ answering affidavit was fil ed out of time, and condonation
was applied for. Despite the applicants opposing this condonation, this issue
was not really opposed when this matter was argued. In any event, the
applicants filed a replying affidavit dealing with the answering affidavit, and thus
will suffer very little prejudice if condonation is granted . I also believe this is a
case where the respondents must have an opportunity to place their side of the
case before Court. Exercising the wide discretion I have in this regard, I am
satisfied that condonation should be granted to the respondents for the late
filing of the answering affidavit. I shall therefore regard the answering affidavit
as properly before Court.

[3] The application came before me on 29 July 2025 . After considering the
affidavits and documents filed, and after hearing argument by both parties, I
granted the following order:

‘1. The actions of the Third Respondent in impounding equipment used
to affix advertising material for advertising time and delivering such
equipment to the municipal pound, is declared unlawful.

2. The Respondents are interdicted from using their impoundment
powers as enforcement for compliance with Outdoor Advertising By -
laws 2009 of the Respondents.

laws 2009 of the Respondents.


1 These By -laws are promulgated in terms of section 13(a) of the Local Government: Municipal
Systems Act No 32 of 2000.

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3. That the Respondents pay the costs of this application, jointly and
severally, the one paying the other to be absolved.

4. Written reasons for this order will be provided on 8 August 2025.’

[4] This judgment constitutes the written reasons contemplated by paragraph 4 of
my order. I will start with setting out of the relevant background facts. For ease
of reference, I will refer in this judgment to all the respondents jointly as ‘the
City’.

The relevant background facts

[5] Fortunately, in this case, the bulk of the background facts are either straight
forward, or uncontested.

[6] The applicants conduct outdoor advertising businesses. This business involves
the applicants approaching property owners, both in the private and public
sectors, in order to secure the rights to allow the applicants to erect advertising
signage on their properties . In turn, the a pplicants then undertake to pay the
property owner concerned a market related rental for affording them such
benefit. Th is relationship is regulated by way of an agreement concluded
between such parties, with the duration of such agreements being traditionally
for a period between five and ten years in duration.

[7] Once the agr eements are concluded, the applicants then build billboard
structures on the property and then rent out the advertising space created with
such structure to the advertising community. This form of business is known as
third party outdoor advertising . It is this rental received that constitutes the
revenue earned by the applicants, and out of this revenue the applicants would
pay all their operating expenses . The longer a specific billboard remains in a
specific location with advertising thereon , the profitability of the billboard
increases. There is a diminished economic benefit to have billboards only for a
short period in a specific place , as it is less likely that all costs would be
recovered.

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[8] Where it comes to affixing an advertisement to a billboard , the majority of
billboards are currently what is referred to as static billboards. This means that
the advertisement is printed on a vinyl canvas, and the vinyl canvas is attached
to the frame of the billboard, in a manner that stretches the advertisement inside
the frame so that it displays a smooth and readable surface . This is a
specialized occupation, requiring skilled contractors , and would be subject to
health and safety requirements, especially considering that these signs are
often high above ground. Affixing the advertising sign to a billboard is known as
‘flighting’ the advertisement. These flighted advertisements attached to
billboards will be referred to in this judgment as ‘signs’.

[9] Currently the outdoor advertising industry in the area of jurisdiction of the City
is regulated by the 2009 Outdoor Advertising By-laws (the Advertising By-laws).
In terms of the Advertising By-laws no person may erect a sign or use a sign
unless this has been approved in writing by the City. Where it comes to making
applications for approval , it involves the proprietor of the sign (such as the
applicants) making application to the City to have its advertising structure as
well as the flighting of the sign approved by the City. However, material
challenges arose on the part of the City where it came to the City processing
these applications. It became the norm that the City either simply refused to
accept these applications, or never dealt with the same.

[10] The above state of affairs resulted in a virtually free for all where outdoor
advertising companies would erect and / or flight outdoor advertising signs
randomly and without any approval from the City. And where it came to
enforcement of the Advertising By-laws, the authorised officials (the JMPD)
would only randomly and selectively enforce such By-laws against a rbitrarily
selected companies, such as the applicants. T he applicants in fact conceded

selected companies, such as the applicants. T he applicants in fact conceded
they were part of the free for all, out of necessity, and have erected and flighted
signs on private and public property without the required approvals by the City.
Needless to say, this also compromised the City’s revenue steam where it came
to these signs.

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[11] In an attempt to resolve the above difficulties, the City Council, on 20 March
2018, adopted new Outdoor Advertising By-laws, and these By-laws were then
promulgated in the Provincial Gazette on 30 March 2018 . However, the
lawfulness of these 2018 Advertising By-laws was challenged by several of the
businesses operating in the outdoor advertising industry, and an application
was brought to the High Court to set aside these By-laws. Consequently, the
implementation of the 2018 Advertising B y-laws was placed in abeyance
pending the outcome of the Court case. Ultimately, the 2018 Advertising By-
laws were declared unconstitutional by this Court in the matter of SAPOA and
Others v The City of Johannesburg 2, and these By-laws were then set aside.
This meant that the Advertising By-laws of 2009 remained extant, and in place.

[12] On 1 March 2019 , and whilst the aforesaid Court proceedings were still
pending, a report served before the Majoral Committee in the City, which report
concerned a complete strategic review of the outdoor advertising portfolio in the
City, in terms of the appliable law. It was recorded in such report that the 2009
Advertising By-law remained in force and had to be complied with. However,
the broader aim of the report was to seek the City Council's approval to have a
‘transitional period’ of 60 months for the phasing in of the new 2018 By-laws.
During this period, both the Executive Director: Development Planning and
CEO: JPC would be required to develop a mechanism that would expedite the
assessment and consideration of all proposals and / or submission s
(applications) by all interested and affected parties . It was also proposed that
in this period, engagements with all role-players who may be affected by
illegality in whatever manner would take place.

[13] The principal difficulty raised by role -players in the industry was that the
approval of outdoor advertising cannot be left to an individual. An overhaul of

approval of outdoor advertising cannot be left to an individual. An overhaul of
the application and approval / refusal process was necessary. Further, an
important objective of the transitional period would be to reconstruct the outdoor
advertising landscape across all land to improve compliance with applicable
laws and enhance its value.


2 Unreported Case number 19656 / 18 per Dosio AJ.

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[14] In the above context, it was proposed in the report that during this transitional
period, all affected parties who had advertising signs situated in the City had to
make full disclosure of their advertising assets / portfolios, including revenue
not paid to the City (where applicable) , irrespective of whether a contract
existed or not . Similarly, the affected media owners would be subject to the
same principle, namely to apply for the approval of signs that are approvable
under both the existing 2009 By-laws and the new 2018 By-laws.

[15] The report was adopted and on 1 August 2019, the City published a formal
newspaper notification calling for all affected parties to participate in the
process as set out above. The applicants indeed participated in the process
and submitted their applications. It appears that most businesses in the industry
participated in this process, and it was indicated in the founding affidavit that
thousands of applications were submitted.

[16] According to the applicants, their contraventions were limited to the fact that
written approval for their signs were not obtained from the City. The applicants
however contended that all other regulatory requirements relating to the signs
were complied with, and in particular the signs, as they stood, were
‘approvable’.

[17] In response to the substantial number of applications received, the City
appointed and delegated a committee to make a final decision on the approval
of these signs based on the recommendations of the Outdoor Advertising
Department. Therefore, the authority to approve signs was taken away from
individual officials and then vested in the committee so appointed.

[18] But once again, and unfortunately, the approval process turned out to be
lacking. Only in August 2021, which is a substantial period after the initial
applications were made in September 2019, the various advertising companies
started receiving approvals / refusals from the City. However, these approvals

started receiving approvals / refusals from the City. However, these approvals
/ refusals still came in a trickle. By May 2022, this trickle dried up, and no further
approvals / refusals were forthcoming from the City. It also turned out that the
temporary mandate of the committee to approve or refuse applications was not

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renewed and such committee was thus unable to exercise their original
mandate. To make matters worse, the delegated authority that was withdrawn
from the individual officials in 2019 w as never reinstated. This meant that the
entire approval / refusal process stalled. Not only did this have a direct impact
on all the amnesty applications that had been submitted by the role-players, but
it also had an impact on any new application s that were submitted to the City
for approval.

[19] Where it came to the applicants specifically, they submitted 8 applications in
this time period for new advertising signs and had 21 amnesty applications still
open, of which about half were not decided upon. Ordinarily, an advertising sign
is only installed after the approval of the City is obtained , but with the material
challenges in the process as referred to above, property owners were becoming
frustrated and threatening to cancel lease agreements with the advertising
companies due to the lack of progress. Effectively, what then happened was
that there was simply a return to the free for all position as discussed above,
and outdoor advertising companies again started installing / flighting signs
without approval from the City.

[20] The Advertising By-laws are enforced by what is termed an ‘authorized official’.
In the case of the City, these officials would be the JMPD. On 15 February 2023,
the JMPD in Sandton impounded a vehicle, stepladders as well as the
advertising banner which were supposed to be flighted on a billboard of the
second applicant in Sandton Drive. One of the officers instructed the driver to
drive the vehicle to the City impound yard.

[21] In conducting the impounding as aforesaid , the JMPD officer issued a
document labelled an ‘impound notice’ . In this notice, it is recorded that the
reason for impounding was ‘in terms of outdoor advertising, advertising signs
and hoarding by Laws of the City of Johannesburg for violating Section 9 ’.

and hoarding by Laws of the City of Johannesburg for violating Section 9 ’.
There is a handwritten annotation recording that it was for working on a
billboard without ‘ way-leave’. It was further i ndicated that the impounded
property would be taken to ‘Marlborow’ (sic) pound and the release fee for the
impounded property was set at R3 501.00.

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[22] According to the applicants, the aforesaid events related to an advertising sign
for which the second applicant ha d submitted an approval application in the
amnesty period and had indeed on 31 May 2021 received approval from the
City. The applicants point out that section 9 of the Advertising By­laws deals
with prohibited signs in terms of the By -laws, or in other words signs that are
prohibited by the By-laws. The sign in question was not even such a sign and
in any event approved by the City.

[23] However, the consequence of the aforesaid event was that the second applicant
went and paid the impoundment fee of R3 501.00 to have the goods released,
whereafter the flighting crew immediately went ahead and flighted the
advertisement as originally instructed.

[24] The same scenario repeated itself on 16 February 2023 but this time on William
Nicol Drive (now known as Winnie Mandela Drive). On this occasion, the
applicants were doing general maintenance work on the sign which was a
statutory obligation in terms of section 29(1)(a) of the Advertising By -laws.
Nonetheless, the JMPD impounded a generator, stepladder and welding
machine. The alleged contravention in the impound notice was again a
reference to section 9 of the Advertising By-laws, however the sign was not a
prohibited sign . The impound notice contained a h andwritten annotation of
‘maintaining a sign without permit ’. Also in this case, it was an approved sign.
The applicants were yet again left with no altern ative but to pay the
impoundment fee of R3 501.00 and the maintenance crew went ahead with the
maintenance as required, a few days later.

[25] Because of these experiences, the applicants requested their legal advisors
write a letter to the City, which was done on 20 February 2023. This letter was
effectively a letter of demand raising a complaint about the impounding that had
been experienced, and referred to the events set out above. It was contended

been experienced, and referred to the events set out above. It was contended
that the said conduct by the JMPD was unlawful. The applicants when further
and specifically recorded when the JMPD may conduct the impounding of
property, as follows:

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‘9.1 The first is the provisions of Regulation 320 of the National Road Traffic
Act and only relates to vehicles obstructing traffic. It does not include anything
else. These provisions are also specific, and it does not include the mere
parking on the roadside, nor parking on the pavement.

9.2 The second provision is the Public Road and Miscellaneous by-laws or
2004 and relates to obstructions of a road. In this instance an impoundment
is only allowed after the person causing the obstruction refuses to remove
the obstruction.’

[26] The letter of 20 February 2023 also dealt with the powers of the City (JMPD)
where it came to enforcement of the Advertising By-laws, and recorded that it
did not contemplate or permit impoundment. As to the issue of impoundment
per se, it was said:

‘Firstly, these seizures can only happen under certain circumstances namely
the goods must be prohibited goods and secondly the goods must be evidence
in a future criminal trial or goods that are used to commit the alleged crime.

Secondly, there are specific procedures when seizures happen. A seized
asset/item must be handed over to the SAPS if the seizure is done by a metro
policeman and the SAPS is responsible to keep the seized item in custody until
the ensuing criminal trial.’

[27] After the letter of 20 February 2023 , there was a hiatus in further similar
attempts at enforcement by the JMPD. But that was unfortunately not the end
of it. On 14 July 2023, another impoundment took place on Sandton Drive. The
impoundment notice yet again relied on section 9 of the Advertising By-laws,
with a handwritten annotation reading ‘section 9(1) of advertising sign’, despite
the sign not being a prohibited sign as contemplated by section 9(1). The goods
impounded on this occasion were spanners, ropes (cherry drivers) and a
stepladder. The amount to release such equipment from the pound was
R3 687.00. The applicants yet again paid the impoundment fee, and the

R3 687.00. The applicants yet again paid the impoundment fee, and the
flighting crew subsequently went ahead and flighted the advertisement.

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[28] A further incident took place in August 2023. On this occasion, it had a prequel.
The applicants had made application to the City for approval of an advertising
sign in terms of section 3(3) of the Advertising By-laws, which is for a temporary
sign in respect of which approval can only be obtained for 12 months . But the
City never even processed the application, and the applicants proceeded to
install the advertising structure. The applicants then received a notice from the
City informing that the sign is illegal and it must be removed. The applicants
answered that application had been made for approval , that the sign in all
respects qualified for approval, and the application needed to be dealt with. But
the City was insistent that the sign be removed . Then, on 25 August 2023 an
officer of the JMPD arrived at the site demanding from the property owner that
he be shown the approval documents for the sign. The property owner informed
the officer that they did not have such documents and referred him to the
applicants. The JMPD returned on 27 August 2023 and threatened to take down
sign but did not proceed to do so. Instead, the JMPD returned the early evening
of 28 August 2023 to remove the sign, which was situate on private property.
At 22h00 the JMPD officers left the site, as they needed safety equipment to
remove the sign, which they did not have.

[29] These events prompted the applicants to set up an urgent meeting with senior
officials from the City / JMPD, being superintendent Selby Ngoepe and Peter
Rikhotso. In meeting, the applicants were informed that the JMPD was acting
under their instruction due to the large number of illegal billboards . The
applicants were however given an undertaking that the applicants’ signs would
be left alone, because the applicants were well aware of their rights and they
have a high rate of approved signs.

[30] After this meeting in August 2023, matters once again quieted down, with no

[30] After this meeting in August 2023, matters once again quieted down, with no
further incidents of enforcement by the JMPD for several months. But this was
a truce that did not last, despite the undertaking provided. On 30 November
2023, the JMPD conducted another impoundment at a sign at Corlett Drive,
Melrose Arch, and inter alia impounded a vehicle. This time the impoundment
notice was issued in terms of section 11(1) of the Informal Trading By-laws.
However, the handwritten annotation on the impound notice referred to erecting

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a sign without a permit and having no ‘ way-leave’. The immediate difficulty is
that this has absolutely nothing to do with the Informal Trading By-laws, which
simply do not find application, whilst the handwritten annotation refers to the
Advertising By-laws. The impound release fee was R3 687.07 plus R150.00
storage. Again, the applicants were compelled to pay the fees to have the
property released.

[31] The conduct continued in 2024, when the JMPD threatened to impound the
vehicle of the flighting crew at the Saheti School in Linksfield, Ekurhuleni on 16
January 2024, which is an approved sign, on private property and not even
inside the area of jurisdiction of JMPD . Fortunately, and in this occasion, no
impounding was effected.

[32] The current application was then brought on 26 March 2024, which application,
as said, was ultimately opposed by the City.

Analysis

[33] For the purposes of deciding this application, I do not believe it is necessary to
finally determine whether the signs erected and / or maintained by the applicant
are lawful or not. The fact is that where a sign is lawfully erected and displayed,
there would no basis for the City and the JMPD to take action against the
applicants with regard to that sign and / or conduct any enforcement of the
Advertising By-laws, as the applicants would be compliant . I will therefore
accept, for the purposes of th is judgment, that the issue at hand concerns
instances where the applicants’ signs are unlawful and / or the City and the
JMPD considers them to be unlawful. In short, the question is simply this. What
is the City and the JMPD as its enforcement agency permitted to do about the
applicants’ unlawful signs?

[34] Before I turn to the reasoning given for the order I have made as set out in the
introduction to this judgment, I need to make one thing pertinently clear. Nothing
I say or decide in this judgment can be considered and construed by the

I say or decide in this judgment can be considered and construed by the
applicants or any other business in the outdoor advertising industry to be any

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kind of condonation, endorsement or approval for such a party to erect and / or
flight a sign unlawfully, and in particular, without the approval of the City as
required by the Advertising By-laws. I reiterate, at all times these By-laws, as
they read, must be complied with. And added to that, the City is not only entitled
to, but in fact obliged to, enforce these By-laws against all that transgress.

[35] It is simply not open to the applicants to say that because the City may have
ulterior motives in not dealing with approval applications, or are simply not
dealing with such applications because of its own operational challenges, they
can proceed to simply erect and / or flight signs. This appears to be the
suggestion in the founding affidavit . It is an unacceptable suggestion, and
nothing else but a form of impermissible self-help, which must be discouraged
in strong terms.3 If the applicants believe their rights are being infringed in this
regard, this would constitute unreasonable administrative action that would be
actionable under section 6(2)(g) as read with section 6(3) of PAJA4. Also, the
fact that there may be a ‘transitional period’ by virtue of the memorandum of 1
March 2019 does not detract from the application of the Advertising By -laws
and that the same must be complied with. Just like the applicants expect of the
City, they must similarly follow the law.

[36] However, the City itself cannot escape some criticism. If it simply did its job
where it came to approval applications, problems such as those arising in this
case would likely not happen. The expeditious processing of approval
applications would effectively mean that its enforcement of the Advertising By-
laws rests on a sound and legitimate platform, without industry role players
using the failures of the City to justify their conduct.

[37] Fortunately, this issue of justification for unlawfully erected signs was largely
disposed of when the applicants’ counsel, at the commencement of argument,

disposed of when the applicants’ counsel, at the commencement of argument,
conceded that the case of the applicants is not that they believe they are
somehow entitled to erect signs because the City, simply put, either fails or

3 See Public Servants Association obo Ubogu v Head, Department of Health, Gauteng and Others 2018
(2) SA 365 (CC) at paras 66 – 67; Chief Lesapo v North West Agricultural Bank and Another 2000 (1)
SA 409 (CC) at para 11.
4 The Promotion of Administrative Justice Act 3 of 2000.

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refuses to do its job where it comes to the processing of approval applications,
or that there exists some kind of exemption as a result of the ’transitional
period’. He submitted that the applicants’ case is actually based on the
assumption that the signs were elected without approval and that the By-laws
requiring approval had thus been infringed. The concession was properly made,
and made my job in deciding this matter easier.

[38] So, and departing from the premise that the applicants are complaining about
the conduct of the City and JMPD in respect of their unlawfully erected signs,
the crisp case of the applicants is that the Advertising By-laws do not allow for
the City and the JMP D to impound vehicles, equipment and other property of
the applicants and their service providers / contractors, as a mechanism to
enforce the Advertising By-laws. It was undisputed that the City and the JMPD
did effect impounding as an enforcement mechanism in this regard. The
applicants argue that that such impounding is unlawful.

[39] In answer to this case of the applicant, the City made its position quite clear. It
says, in the answering affidavit, that: ‘… when impounding the goods, the JMPD
acted within the legal authority granted to it in terms of the law. In this case, the
JMPD complied with the Constitution and the relevant City's Bylaws governing
Outdoor Advertising, amongst others ...’. It was further added in the answering
affidavit that: ‘ I submit that the JMPD does have the duty and the power to
enforce the By -laws and impound material, instruments and tools used to
illegally put up or erect an advertising sign without prior approval from the City
…’.

[40] Before deciding the question as to wheth er the impounding by the JMPD is
lawful or unlawful, two preliminary issues raised by the City must first be dealt
with. The first point made is that the declaratory relief sought by the applicants

with. The first point made is that the declaratory relief sought by the applicants
in this case is not competent, because in a meeting between City officials and
the applicants in August 2023, the City undertook not to conduct further
impounding and thus the declaratory relief is sought in the absence of a true lis
between the parties and is of academic interest only. The second point relates
to the interdictory relief sought by the applicants, in respect of which the City

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contends that there is no reasonable apprehension of prejudice as one of the
requirements that must be met for an interdict to be granted. I will now deal with
these two points in turn.

[41] The requirements for declaratory relief are settled. Section 21(1)(c) of the
Superior Courts Act5 reads: ‘A Division has jurisdiction over all persons residing
or being in, and in relation to all causes arising and all offences triable within,
its area of jurisdiction and all other matters of which it may according to law take
cognisance, and has the power – ... in its discretion, and at the instance of any
interested person, to enquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such person cannot claim
any relief consequential upon the determination ’. In Gensinger & Neave CC
and Others v Minister of Mineral Resources and Energy and Others6 the Court
applied these provisions as follows:

‘An applicant seeking a declaratory order must satisfy the court that he or she
is a person interested in an existing, future or contingent right or obligation. …
once the applicant has satisfied the court that it is interested in an existing,
future or contingent right or obligation, it does not mean that the court is bound
to grant a declarator. The court must consider and decide whether it should
refuse or grant a declarator, following an examination of all the relevant factors.
The court accordingly has a discretion. In the exercise of that discretion, the
court considers whether an applicant, in seeking such a declarator, has
standing in terms of s 38 of the Constitution. In line with the doctrine of ripeness,
the court may enquire as to whether alternative remedies have been
exhausted. In addition, a court will not grant a declaratory order on moot or
academic issues, as this would conflict with the doctrine of effectiveness ...’


5 Act 10 of 2013.
6 2025 (4) SA 84 (SCA) at para 31.

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[42] In considering section 19 of the Supreme Court Act7, the predecessor to section
21 of the Superior Court Act in very similar terms, the Court in Cordiant Trading
CC v Daimler Chrysler Financial Services (Pty) Ltd8 had the following to say:

‘... It seems to me that once the applicant has satisfied the court that he/she
is interested in an “existing, future or contingent right or obligation”, the Court
is obliged by the subsection to exercise its discretion. This does not, however,
mean that the court is bound to grant a declarator but that it must consider and
decide whether it should refuse or grant the order, following an examination of
all relevant factors.

Put differently, the two -stage approach under the subsection consists of the
following. During the first leg of the enquiry the Court must be satisfied that the
applicant has an interest in an 'existing, future or contingent right or obligation'.
At this stage the focus is only upon establishing that the necessary conditions
precedent for the exercise of the Court's discretion exist. If the Court is satisfied
that the existence of such conditions has been proved, it has to exercise the
discretion by decidin g either to refuse or grant the order sought. The
consideration of whether or not to grant the order constitutes the second leg of
the enquiry.’

[43] Specifically in the context of declaratory relief , and where it concerns the
exercising of the Court’s discretion in granting the declaratory relief sought once
it is established the necessary interest exists, the Court in Queen Sibongile
Winnifred Zulu v Queen Buhle Mathe and Others9 appositely held that:

‘... The jurisdictional facts that have to be established are whether the applicant
has an interest in an existing, future or contingent right or obligation. If the court
is so satisfied that such interest exists, it is required to consider whether the

is so satisfied that such interest exists, it is required to consider whether the

7 Act 59 of 1959. Section 19(1)(a)(iii) reads: ‘A provincial or local division shall have jurisdiction over all
persons residing or being in and in relation to all causes arising and all offences triable within its area
of jurisdiction and all other matters of which it may according to law take cognisance, and shall, subject
to the provisions of ss (2), in addition to any powers or jurisdiction which may be vested in it by law,
have power … in its discretion, and at the instance of any interested person, to enquire into and
determine any existing, future or contingent right or obligation, notwithstanding that such person cannot
claim any relief consequential upon the determination …’.
8 2005 (6) SA 205 (SCA) at paras 17 – 18.
9 2024 JDR 1017 (SCA) at para 12. See also West Coast Rock Lobster Association and Others v
Minister of Environmental Affairs and Tourism and Others [2011] All SA 487 (SCA) para 45.

17

order for a declaratory relief should be granted. The court considers whether
an applicant in seeking such an order has a standing in terms of s 38 of the
Constitution. In addition, the doctrine of ripeness is at issue, as consideration
is given to whether prejudice has already resulted or is inevitable, irrespective
of whether the action is complete or not. The doctrine of ripeness may also
require an enquiry as to whether alternative remedies have been exhausted.
This is termed a premature action. As afor esaid, s 21(1) (c) of the Superior
Courts Act 10 of 2013 enjoins the high court ‘in its discretion and at the instance
of any interested person to enquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such person cannot claim
any relief consequential upon the determination’. In addition, a court will not
grant a declaratory order on moot or academic issues, as this would conflict
with the doctrine of effectiveness. ...’

[44] I am satisfied that the applicants have met the requirements for declaratory
relief to be competent. In particular, the applicants undoubtedly have a direct
interest in the existing and future right at issue. It is an issue that directly impacts
upon their business operations and will continue to do so going forward. The
applicants would also directly suffer damages as a result. This leaves the
second leg of the enquiry, namely whether this Court should exercise its
discretion, based on the facts and the issue at stake in this case, and grant the
applicants the declaratory relief sought.

[45] It is in the context of contending that the Court should not exercise its discretion
by granting the applicants the declaratory relief sought, that the City argued that
there is no active dispute, for the want of a better description, because of what
transpired at the meeting in August 2023 and the fact that after that meeting,
there was no further reoccurrences of the same issue. The suggestion was in

there was no further reoccurrences of the same issue. The suggestion was in
effect that the matter was not ripe for determination, as something further had
to happen after that meeting, before the applicants would be entitled to take
action in seeking is to obtain a declarator. I believe that these contentions of
the City are unsustainable, both in fact and in law, for the reasons to follow.

[46] Where it comes to the facts, the City has the chronology all wrong. The
evidence clearly shows that despite the undertaking given in August 2023, there

18

were further instances of the conduct of impounding / attempted impounding in
November 2023 and January 2024. It would certainly seem the City cannot be
held at its word where it comes to this issue. But more importantly, such an
internal undertaking in what is nothing but a meeting between two parties would
often be insufficient to convince individual JMPD officers seeking to conduct
enforcement in the manner they deem fit to do, not to proceed as they intend.
Something more concrete is need ed, in the form of a pronouncement by this
Court, as sought by the applicants. I am satisfied that the applicants, on the
facts, have shown the existence of a live issue in dispute, that remains
unresolved, and whilst it remains unresolved, it could likely lead to the same
kind of conduct by the JMPD the applicants are complaining of.

[47] Dealing next with the legal issue, counsel for the City further argued that since
the bringing of the application in March 2024, the applicants have not filed any
further evidence of impounding activity by JMPD officers. It was contended that
if the conduct continued, the applicants could have raised it in supplementary
affidavits. Or alternatively, the applicants have to wait for another more current
impoundment event to happen, and then seek relief. There is however simple
answer to this contention. When an applicant seeks to make out a case for even
prospective relief, that case is established on the basis of retrospective facts.
In simple terms, a factual foundation must be established based on facts as
they exist, at the point when the application is brought, to substantiate why
future relief is necessary. This is commonly known as a factual substratum.10
The Court assesses the case based on those facts in deciding whether to grant
relief, as no one really knows what will actually happen in the future. This is
known as the doctrine of ripeness. In Ferreira v Levin NO and Others;

known as the doctrine of ripeness. In Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others 11, Kriegler J, in a minority
judgment, said: ‘… Suffice it to say that the doctrine of ripeness serves the
useful purpose of highlighting that the business of a court is generally
retrospective; it deals with situations or problems that have already ripened or

10 See Association for Voluntary Sterilization of South Africa v Standard Trust Limited and Others
2023 JDR 1983 (SCA) at para 13
11 1996 (1) SA 984 (CC) at para 199.

19

crystallised, and not with prospective or hypothetical ones …’. This dictum has
been applied in several instances since.12

[48] A further consideration is whet her prejudice has already resulted or is
reasonably likely to result , even if some action may still need to come going
forward. This was made clear in Rhino Oil and Gas Exploration South Africa
(Pty) Ltd v Normandien Farms (Pty) Ltd and Another13 as follows:

‘There is a close connection between prejudice and ripeness. Baxter states that
'the appropriate criterion by which the ripeness of the action in question is to be
measured is whether prejudice has already resulted or is inevitable, irrespective
of whether the action is complete or not'.

[49] An apposite illustration would be the judgment in Afriforum NPC v Nelson
Mandela Foundation Trust and Others14. This case concern ed the continuing
displaying as the old South African flag as being unlawful and constituting hate
speech. On the facts, the event relied on was the actual display of the flag at
an earlier ‘ Black M onday’ protest, and part of the case to be decided was
whether declaratory relief for such conduct going forward was appropriate. The
Supreme Court of Appeal accepted that the decision of the High Court was
based on a proper factual substratum by considering what had already
happened,15 with such Court further deciding:16 ‘… It follows that there was
nothing abstract, academic or hypothetical about the NMF's complaint. It was
based on actual contraventions of the Equality Act, and grounded in concrete
events at which the old flag was displayed …’. The Court concluded:17

‘The old flag is displayed from time to time. It was again displayed at the Black
Monday protests. There is a public controversy about the lawfulness of doing

12 See Public Protector v Chairperson, Section 194(1) Committee and Others 2025 (4) SA 428 (SCA)
at para 40; Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others 2025

JDR 0776 (SCA) at para 26; Lueven Metals (Pty) Ltd v Commissioner for the South African Revenue
Service 2023 JDR 4268 (SCA) at para 27; Clear Enterprise (Pty) Ltd v The Commissioner for The
South African Revenue Services 2011 JDR 1243 (SCA) at para 17.
13 2019 (6) SA 400 (SCA) at para 33.
14 2023 (4) SA 1 (SCA).
15 See para 25 of the judgment.
16 Id at para 26.
17 Id at para 27.

20

so. The purpose of the application by the NMF and the SAHRC was to resolve
that very controversy for the benefit of all. Declaratory orders by their very
nature, are often directed at conduct that has not yet occurred. But they are
vital in the right conte xt, specifically to address issues of public importance or
involving a compelling public interest. The Constitutional Court has held that
declaratory orders 'can bring clarity and finality to disputes that may, if
unresolved, have far-reaching consequences for each party'.

[50] Similarly in casu, the factual substratum of the relief sought by the applicants
can be found in what had already transpired, more or less up to the point when
the application had been brought. If the applicants’ case that the complained of
conduct by the JMPD in this regard is unlawful is upheld, and that the JMPD is
thus not entitled to exercise impounding powers under the Advertising By-laws,
then there would be an actual contravention of the By -laws as a live and
continuing dispute . And certainly, there is some controversy, with other
businesses in the industry making common cause with the applicants by way
of confirmatory affidavits to the founding affidavit as to their dissatisfaction with
the same conduct meted out towards them as well.

[51] This leaves the only counter to retrospective facts being used to obtain
prospective relief, to consider, which is what is commonly known as mootness.
In National Coalition for Gay and Lesbian Equality and O thers v Minister of
Home Affairs and Others18, the Court said that: ‘A case is moot and therefore
not justifiable if it no longer presents an existing or live controversy which should
exist if the Court is to avoid giving advisory opinions on abstract propositions of
law’. Specifically in the context of declaratory relief, the Court in J T Publishing
(Pty) Ltd and Another v Minister of Safety and Security and Others19 held:

‘I interpose that enquiry because a declaratory order is a discretionary

‘I interpose that enquiry because a declaratory order is a discretionary
remedy, in the sense that the claim lodged by an interested party for such an
order does not in itself oblige the Court handling the matter to respond to the
question which it poses, even when that looks like being capable of a ready

18 2000 (2) SA 1 (CC) para 21 footnote 18. See also Normandien Farms (Pty) Limited v South African
Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and Others 2020 (4)
SA 409 (CC) at para 47.
19 1997 (3) SA 514 (CC) at para 15.

21

answer. A corollary is the judicial policy governing the discretion thus vested in
the Courts, a well-established and uniformly observed policy which directs them
not to exercise it in favour of deciding points that are merely abstract, academic
or hypothetical ones.’

And in Siemens Energy (Pty) Ltd and others v City of Cape Town and Others20,
the Court had the following to say:

‘Similar to the aspect of ripeness, this issue cannot be determined in a vacuum
as there are aspects that are interlaced with considerations of mootness. ...’

[52] So can it be said the current matter is moot, because it is merely abstract and /
or hypothetical? In my view, certainly not , considering the facts as a whole .
There is very much a live dispute in existence as to what the JMPD is entitled
to do in enforcing the Advertising By-laws, which is far from resolved. If there
was any doubt about this, the City’s own answering affidavit made it clear, in
that the City remained adamant that the JMPD was well within its rights to
enforce such By-laws by way of impounding property, in direct contradiction to
the view adopted by the applicants. The City also never said in answer it was
going to stop doing this. The issues are important, and involve an interpretation
of a By-law that would be applicable th roughout the outdoor advertising
industry. As such, the issue of prejudice remains, and t he granting of the
declaratory relief sought will therefore have a real and practical effect. That
effect would be that the City is not entitled to impound the property of the
applicants, and thus prevent all the adverse operational and financial
consequences associated with it. Accordingly, it is therefore simply not a case
where, as described in Legal Aid South Africa v Magidiwana and Others21:

‘... however the appeal turns out, the position of the respondents will remain
unaltered and the outcome, certainly as far as this case is concerned, will be a

unaltered and the outcome, certainly as far as this case is concerned, will be a
matter of complete indifference to Lasa. What Lasa really seeks is to have this

20 2024 JDR 3133 (WCC) at para 24.
21 2015 (2) SA 568 (SCA) at para 18.

22

court express a view on a legal conundrum that it hopes to have decided in its
favour without in any way affecting the position between the parties ...’

As such, the matter cannot be considered to be moot.

[53] But even if it can somehow be said the matter is moot, the fact remains that
even the existence of mootness not absolute bar to considering the matter and
granting the declaratory relief sought. The Court would still be entitled to do so
where the interests of justice so require.22 As held in Van Wyk v Unitas Hospital
and Another (Open Democratic Advice Centre as Amicus Curiae)23:

‘It is by now axiomatic that mootness does not constitute an absolute bar to the
justiciability of an issue. The court has a discretion whether or not to hear a
matter. The test is one of the interests of justice. A relevant consideration is
whether the order that the court may make will have any practical effect either
on the parties or on others. In the exercise of its discretion the court may decide
to resolve an issue that is moot if to do so will be in the public interest. This will
be the case where it will either benefit the larger public or achieve legal
certainty.’

[54] The case in casu would in my view qualify as a case where the issue should be
decided, even if it can be said that it may be moot. I am convinced that the clear
practical effect of the relief sought necessitates this, as well as the
considerations of prejudice, and the fact it would be in the broader public
interest.24

[55] But, and as touched on above, the City had another a rrow in its quiver.
Accepting for the moment that the applicants are able to illustrate a clear right

22 POPCRU v SACOSWU and Others 2019 (1) SA 73 (CC) at para 44; Radio Pretoria v Chairperson,
Independent Communications Authority of South Africa, and Another 2005 (4) SA 319 (CC) at para 22;
President of the Republic of South Africa v Democratic Alliance and Others 2020 (1) SA 428 (CC) at

para 17; Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 9.
23 2008 (2) SA 472 (CC) at para 29.
24 In Normandien Farms (supra) at para 50 , it was held: ‘ Moreover, this court has proffered further
factors that ought to be considered when determining whether it is in the interests of justice to hear a
moot matter. These include (a) whether any order which it may make will have some practical effect
either on the parties or on others; (b) the nature and extent of the practical effect that any possible order
might have; (c) the importance of the issue: (d) the complexity of the issue; (e) the fullness or otherwise
of the arguments advanced …’.

23

to the relief sought by convincing the Court to grant declaratory relief in their
favour, the City opposes the interdictory part of the relief sought. According to
the City, there is no reasonable apprehension of an injury in this case, as one
of the essential requirements to obtain an interdict. In Setlogelo v Setlogelo25
the Court explained the requirements of an interdict as follows: ‘ ... The
requisites for the right to claim an interdict axe well known; a clear right, injury
actually committed or reasonably apprehended, and the absence of similar
protection by any other ordinary remedy …’.

[56] What then qualifies as a ‘ reasonable apprehension of injury’? The Court dealt
with this in V & A Waterfront Properties (Pty) Ltd and Another v Helicopter &
Marine Services (Pty) Ltd and Others26. In that case, the argument was that a
breach of a grounding order to operate a helicopter did not constitute 'injury' for
purposes of the second essential requirement for a final interdict , because
'injury' in that context had necessarily to entail physical harm or pecuniary
loss.27 The Court reasoned as follows, in rejecting this argument:28

‘The argument is founded on neither authority nor principle. The leading
common-law writer on the subject of interdict relief used the words 'eene
gepleegde feitelijkheid' to designate what is now in the present context, loosely
referred to as 'injury'. The Dutch expression has been construed as something
actually done which is prejudicial to or interferes with, the applicant's
right. Subsequent judicial pronouncements have variously used 'infringement'
of right and 'invasion of right'. ...’

[57] There can be little doubt, concerning what is set out above, that what is involved
here is the infringement of the rights of the applicants. They have the right to

25 1914 AD 221 at 227. See also Masstores (Pty) Ltd v Pick N Pay Retailers (Pty) Ltd 2017 (1) SA 613
(CC) at para 8.
26 2006 (1) SA 252 (SCA).
27 See para 20 of the judgment.

(CC) at para 8.
26 2006 (1) SA 252 (SCA).
27 See para 20 of the judgment.
28 Id at para 21. See also Exxaro Coal Mpumalanga (Pty) Ltd v TDS Projects Construction and Newrak
Mining JV (Pty) Ltd and Another (169/2021) [2022] ZASCA 76 (27 May 2022) at para 13; Technoserve
Medium Voltage (Pty) Ltd v Technical Reticulation Services (Pty) Ltd and Others 2025 JDR 1747 (WCC)
at para 44.

24

conduct their business without undue or unlawful interference. 29 They further
have the right that actions taken against them by the City, as an arm of the
State, must be in compliance with the Constitution and be lawfully exercised.30
And lastly, on the facts, it can be said the possibility of future harm / prejudice
can be reasonably apprehended, considering how the City has conducted itself
so far, as well as the fact that it considers such conduct to be entirely
permissible and lawful. I am satisfied that the applicants have shown the
requisite reasonable apprehension of injury to exist, as the second essential
requirement for obtaining interdictory relief.

[58] This only leaves the issue of an altern ative remedy. The City has argued that
the applicants can lay a formal complaint with the City. Little need be said about
this suggestion. It is highly unlikely that the City will entertain any complaint
where it believes it is acting lawfully. And in any event, the attempts to resolve
this matter amicably proved fruitless. It was even suggested the applicants lay
a complaint with the Public Protector. This is simply not an alternative legal
remedy as contemplated by the third interdict requirement. The function of the
Public Protector is not to resolve these kinds of disputes. The following dictum
in V & A Waterfront supra is apposite:31

‘Coming to the third and final requirement, the respondents submitted that an
interdict was not the only appropriate remedy. It was said that the first appellant
could sue for damages or cancel the lease. This argument cannot prevail. The
first appellant is entitled to enforce its bargain: to obtain the lessee's promised
rental while preventing the latter from conducting itself in a manner that
involves breaking the law. The only ordinary remedy which provides it with the
necessary protection is an interdict.’


29 See section 22 of the Cons titution. In Rafoneke and Another v Minister of Justice and Correctional

Services and Others 2022 (6) SA 27 (CC) at para 75, it was said that the right to regulate business
activity by law is permissible: ‘… as long as the power to regulate is exercised in an objectively rational
manner related to a legitimate governmental purpose …’.
30 See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others 1999 (1) SA 374 (CC) at para 58; Gauteng Gambling Board and Another v MEC
for Economic Development, Gauteng 2013 (5) SA 24 (SCA) at para 1; Esau and Others v Minister of
Co-Operative Governance and Traditional Affairs and Others 2021 (3) SA 593 (SCA) at para 5.
31 Id at para 23.

25

And as held in Tau v Mashaba and Others32:

‘... An interdict is not a remedy for the past invasion of rights: it is concerned
with the present and the future. ...’

[59] This now brings me to the point where the rubber meets the road. This is
whether the Advertising By-laws allow, or even contemplate, that the JMPD, as
the enforcement arm of the City’s system of By-laws, is entitled to exercise
powers of impoundment to address violations thereof.33

[60] As I have said above, in deciding this question, I will accept that the applicants
have violated the By-laws, in that signs have been erected, flighted and / or
maintained, without the necessary written authorisation of the City as
contemplated by section 3 of the Advertising By-laws, which reads:34

‘3(1) No person may erect any advertising sign or use or continue to use any
advertising sign or any structure or device as an advertising sign without the
prior written approval of the Council.

3(2) No advertising sign erected and displayed with approval contemplated in
subsection (1) ... may in any way be altered, removed, re-erected or upgraded,
other than for maintenance work which may be required for the upkeep of an
advertising sign, without prior written approval of the Council and subject to
such conditions and requirements as the Council may consider appropriate
which may include the submission of proof of compliance. …’

[61] The first difficulty for the City is that the Advertising By -laws contain specific
provisions where it comes to dealing with contraventions thereof. These are
found in Chapter 6. First, section 29(2) provides as follows:


32 2020 (5) SA 135 (SCA) at para 26.
33 Section 2(3) reads: ‘The owner of an advertising sign and any person who has applied for approval
of an advertising sign in terms of these By-laws must comply with any provision of these By-laws relating
to that sign and must ensure that such provisions are complied with, subject to anything to the contrary

contained in such provision …’.
34 The application approval process and requirements are set out in section 3(3).

26

‘If, in the opinion of an authorised official, any advertising sign is in a dangerous
or unsafe condition or has been allowed to fall into a state of disrepair or is in
conflict with any requirement of these By -laws, he or she may serve a notice
on the owner of such sign requiring him or her, at his or her own cost, to remove
the advertising sign or take other steps relating to the maintenance specified in
the notice, within a period so specified.’

[62] In terms of section 37(1), any person whose rights are affected by a decision
by an authorised official in terms of or for the purposes of the By -laws, may
appeal against that decision to the City Manager. The City Manager must notify
the person concerned in writing of his / her decision and must provide reasons
for it.35

[63] Section 29 (3) deals with the instance where a sign constitutes an imminent
danger to any person or property. In such a case, the City may, without notice
to the proprietor of the advertising sign, remove that advertising sign or take
other steps that may be considered necessary. It is however clear that these
are steps vis-à-vis the sign itself, by way of removing it or otherwise making it
safe. These kinds of instances are not at stake in this case, and need not
concern this judgment.

[64] In terms of section 30(1), the cost incurred by the C ity for any removal and
storage of a sign (other than a poster ), as well as any costs as contemplated
by section 29(2) quoted above, may be recovered from the sign proprietor or
any other person whose name or activity is displayed on that sign. The sign
itself can also only be released to the proprietor, in terms of section 30(3),
against the payment of a prescribed fee.

[65] The power of inspection is found in section 36(1), which provides:

‘In addition to any power of inspection which an authorised official may have in
terms of these By -laws, he or she may for any purpose relating to the

terms of these By -laws, he or she may for any purpose relating to the
implementation and enforcement of these By-laws, between 08:00 and 17:00,

35 Sections 37(3) and (4).

27

on any day other than a Sunday or public holiday, carry out an inspection of
any advertising sign.’

[66] And finally, where it comes to continued contravention, section 38 provides that:
‘the person in contravention shall be guilty of an offence, and shall liable on
conviction to a fine or in default of payment to imprisonment for a period not
exceeding 12 months , or in the case of a continuing offence, to a further fine
not exceeding R1 000, or in default of payment to imprisonment not exceeding
one day, for every day during the continuance of such offence after a written
notice has been served on him or her by the Council or an authorised official
requiring the discontinuation of such offence’.36

[67] When interpreting all these provisions contained in the Advertising By-laws, the
following principles, as set out in Chisuse and Others v Director -General,
Department of Home Affairs and Another37 apply:

‘In interpreting statutory provisions, recourse is first had to the plain, ordinary
grammatical meaning of the words in question. Poetry and philosophical
discourses may point to the malleability of words and the nebulousness of
meaning, but, in legal interpretation, the ordinary understanding of the words
should serve as a vital constraint on the interpretative exercise, unless this
interpretation would result in an absurdity. As this court has previously noted
in Cool Ideas, this principle has three broad riders, namely —
'(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is,
where reasonably possible, legislative provisions ought to be interpreted to
preserve their constitutional validity. This proviso to the general principle is
closely related to the purposive approach referred to in (a).'

Judges must hesitate 'to substitute what they regard as reasonable, sensible or

Judges must hesitate 'to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a statute or

36 Section 38 inter alia applies to any person that: (a) contravenes or fails to comply with any provision
of these By-laws or (b) refuses or fails to comply with any notice served on him or her in terms of or for
the purposes of these By-laws.
37 2020 (6) SA 14 (CC) at paras 47 – 48.

28

statutory instrument is to cross the divide between interpretation and
legislation.'

[68] Considering the aforesaid enforcement provisions in the Advertising By-laws, it
is my view that the crux of enforcement process is firstly the power to inspect.
A JMPD officer is entitled to have access to the sign for the purpose of
inspecting whether there is compliance. That would include being presented
with the necessary written approval for the sign, upon request. However, and if
the inspection reveals a contravention, the next step is a compliance notice .
That compliance notice may even require the removal of the sign at the cost of
the proprietor. Obviously, if compliance is then brought about by the proprietor
of the sign as c ontemplated and / or directed in the compliance notice, the
contravention is resolved. That is surely the intention and purpose of this kind
of enforcement process. The purpose is not to punish. The purpose is to secure
compliance, because a complaint sign not only benefits the proprietor thereof,
but also the City, and perhaps also even the general public. This is further
evident from the fact that any action taken by an authorised official in this regard
is subject to an appeal to the City Manager, with written reasons being required
for the ultimate decision taken.

[69] In circumstances where the compliance notice or any appeal decision is
however still not adhered to, then the Advertising By -laws create a criminal
dispensation. Now it turns specifically to punishment. The proprietor of the sign
must be changed with the contravention concerned, and if convicted, would
face fines or even imprisonment. Further, it would be competent in such
proceedings to order the proprietor to remove the sign, and a failure to do so
could carry with it the penalty of imprisonment for contempt of Court . But
nowhere is the City itself, through an individual official, entitled to finally decide

nowhere is the City itself, through an individual official, entitled to finally decide
that there is a contravention, and then effectively impose a penalty in the form
of impoundment of property, coupled with a financial release fee. The imposing
of a penalty is the purview of the Court tasked with deciding the charge of
contravention.

29

[70] In my view, the above approach is in line with the purpose of what the
Advertising By-laws seek to achieve. It is apparent from the context of the By-
laws as whole. The simple language thereof makes no provision for the powers
of impoundment, as one would find, for example, in the Road Traffic statutory
provisions. It is not appropriate to interpret the Advertising By-laws to include
the general powers of impoundment the JMPD may have, because to do would
mean that one would have to effective ly write such a power into the By-laws,
which is not permissible. The Court in Bertie van Zyl (Pty) Ltd and Another v
Minister for Safety and Security and Others 38 specifically warned that: ‘ A
contextual or purposive reading of a statute must of course remain faithful to
the actual wording of the statute ...’.

[71] To illustrate by example, using one of the specific complaints by the applicants.
Accept that the applicants have flighted a sign with the necessary written
approval and the sign is compl iant. However, and at the point in time when a
JMPD officer carries out an inspection, the written approval is not immediately
available. The JMPD officer however simply proceed s to decide there is non -
compliance, impounds the property of the personnel seeking to flight the sign,
and the only way to get it promptly released is incurring the cost of going to
collect the property from the impound yard and pay the prescribed impound fee.
And all this happens when the applicant has done no wrong , and the approval
can be presented when it comes to hand. Surely this consequence cannot be.
That is why the process, in a nutshell, is a compliance notice, followed by
charge and conviction if the compliance notice does not achieve its purpose. It
is only on conviction that penalties are imposed.

[72] There is another illustration to indicate the fallacy of what the City is doing. As
is apparent from the applicants’ affidavits, when the City impounds the property,

is apparent from the applicants’ affidavits, when the City impounds the property,
and the applicants are then forced to collect the property and pay the impound
fee, what then happens is that the personnel concerned almost immediately
returns to the sign and flights it. So, and honestly, what is the point? The point
must always be that in the end, non-compliant signs must be removed. That is

38 2010 (2) SA 181 (CC) at para 22.

30

not achieved by impounding what is at best ancillary property. It seems to me
that the City is using a short cut to harass outdoor advertisers into compliance
through operational nuisance and financial prejudice. That is simply not on.
Whilst the City, as said, is entitled and obliged to enforce compliance, it must
do so in compliance with its own By-laws.

[73] Therefore, and in the end, the conduct of the JMPD in effecting an
impoundment to enforce the Advertising By-laws must have a foundation in the
law (Advertising By-laws) itself. It is clear that no such power is contained
therein. As said in Lester v Ndlambe Municipality and Another 39: ‘… Local
government, like all other organs of state, has to exercise its powers within the
bounds determined by the law ...’. And in AAA Investments (Pty) Ltd v Micro
Finance Regulatory Council and Another 40 it was held: ‘... the doctrine of
legality, which requires that power should have a source in law, is applicable
whenever public power is exercised .... Public power ... can be validly
exercised only if it is clearly sourced in law …'. This kind of consideration gives
effect to the Constitutional imperatives where it comes to interpreting statutory
instruments such as these By-laws.

[74] I finish on this issue by referring to the comparable example in Jordaan and
Another v Tshwane City and Another, and Four Similar Cases 41, where the
Court specifically dealt with the interpretation of By-laws of the City of Tshwane
where it came to the liability of a successor in title in the case of a purchase of
a property, for the rates debts of the previous owner. The Court expressed the
following views in conducting such exercise of interpretation:42

‘In addition to the constitutional context, I also have to take into account the
general purpose of these bylaws and policy documents. It is to provide for and
to regulate the supply of municipal services to the community, to lay down tariffs

39 2015 (6) SA 283 (SCA) at para 26.

39 2015 (6) SA 283 (SCA) at para 26.
40 2007 (1) SA 343 (CC) at para 68. This is a dictum from the minority judgment of Langa CJ, however
such dictum has been applied in Lester (supra) at para 26; Roux v Health Professions Council of South
Africa 2011 JDR 1132 (SCA) at para 31; Minister for Justice and Constitutional Development v Chonco
and Others 2010 (4) SA 82 (CC) at para 27.
41 2017 (2) SA 295 (GP).
42 Id at para 72.

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and fees payable for these services and to ensure payment of municipal
accounts. ...’

The Court concluded as follows, which reasoning in my view can equally be
applied in casu:43

‘The bylaws and property rates policy referred to above also do not contain a
provision, either expressly or by necessary implication, that a successor in title
who is not a debtor of the municipality with regard to the property concerned,
shall be liable for the payment of historical debts. They refer, by implication, to
the person who is the consumer, customer, occupier or owner of the property
when the debt was incurred. A new or subsequent owner, who is not a debtor
in this regard, can therefore not be held liable for the payment of these debts,
neither should the municipality be entitled to refuse the rendering of services to
such a person. Doing so woul d mean that the municipality is not only
disregarding its constitutional duty to ensure the provision of services to a
member of the community who is entitled thereto, but is also exercising a public
power without any legal authority.

It would also not serve the general purpose of these bylaws to hold a person
liable for the payment of historical debts who is not a debtor of the municipality.
In the absence of an agreement to that effect, a new or subsequent owner does
not become a co-debtor with regard to the principal debt and is not liable for the
payment of historical debts incurred by previous owners or occupiers. To hold
otherwise would strain the language in order to read something else into it
which the legislature could not have contemplated. I t herefore conclude that
the City of Tshwane has no right to refuse the rendering of municipal services
to a new or subsequent owner because of historical debts still outstanding with
regard to the property concerned, or to demand payment thereof before
entering into a service agreement for the rendering of services.’44

entering into a service agreement for the rendering of services.’44

[75] I turn in conclusion to the provisions of the South African Police Service Act.45
In terms of section 64E, the functions of a municipal police service (such as the

43 Id at para 76 – 77.
44 This reasoning was upheld in Jordaan and Others v Tshwane Metropolitan Municipality and Others
2017 (6) SA 287 (CC) at para 78.
45 Act 68 of 1995.

32

JMPD) are (a) traffic policing, subject to any legislation relating to road traffic;
(b) the policing of municipal by-laws and regulations which are the responsibility
of the municipality in question; and (c) the prevention of crime. Therefore, the
JMPD is undoubtedly statutorily empowered to police the Advertising By-laws.
But nothing in this provision affords the JMPD a general power of impounding
property in conducting such policing , especially considering that the By -laws
that are sought to be policed has its own enforcement provisions which does
not include such power. If there was power to impound, the By-laws needed to
specifically stipulate this. This is further evident from section 64F(2), which
provides that even of the power to seize has been conferred to a member of a
municipal police service in general, then the member of the municipal police
service must immediately deliver the article seized to the SAPS. It is not
permissible to take such article to the Municipal pound and demand payment
for its release, where it comes to any article seized for a contravention of the
Advertising B y-laws, by virtue of a general power to seize under the South
African Police Service Act.

[76] In summary, it is therefore my view that the provisions of the Advertising By-
laws do not contemplate that the JMPD ha s the power to seize / impound any
item, object, property or vehicle utilised by any proprietor of a sign, or of
contractors engaged by it, as a method of enforcing such By-laws. The JMPD’s
impoundment of the property of the applicants and / or their contractors, as
described earlier in this judgment, was thus unlawful. The enforcement process
for contravention of the Advertising By-laws first contemplates a compliance
notice, subject to a right or appeal, with the view to first securing compliance. If
non-compliance persists, there is criminal prosecution, with prescribed
penalties in the case of being convicted, which may include being ordered to

penalties in the case of being convicted, which may include being ordered to
remove any sign and pay any costs of the City associated with the same. The
applicants are thus entitled to the declaratory relief sought.

[77] Where it comes to the interdictory relief, I am satisfied that the applicants have
demonstrated a clear right , in the form of the right not to be subjected to
unlawful conduct where it comes to their business activities. The reasonable
apprehension of injury where it comes to the realistic prospect of a continuation

33

of the violation of such right by the City satisfies the second requirement of
harm / prejudice . And finally, it is clear that the applicants have no realistic
alternative remedy to their disposal. As such, the applicants are also entitled to
the interdictory relief sought.

Costs

[78] This only leaves the issue of costs. The applicants were overall successful in
obtaining the relief they sought. As such, they should be entitled to their costs.
That being said, and in coming to a decision to make a costs award against the
City, I take into account the conduct of the City, despite being fully appraised
by the applicants as to the nature of their case, of in essence doggedly
persisting with the notion that it is empowered to act as it did. And in opposing
the matter, the City principally resorted to uncalled for technicalities, without
really engaging on the merits of the matter. This made deciding this case far
more complicated, and cumbersome. A costs order against the City is thus
justified.

[79] But I must add one last thing. In granting the order as set out in paragraph 3 of
my judgment, above, I omitted to indicate the prescribed scale of costs. I believe
that the matter was sufficient ly complex to warrant a costs order on scale C.
But I will only allow the costs of one counsel.

[80] It is for all the reason s as set out above, that I made the order that I did as
reflected in paragraph 3 of this judgment, supra, but subject to the addition that
the costs referred to in paragraph 3 of my order be regarded as a party and
party costs award on scale C for only one counsel.

34


_____________________
SNYMAN AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg


Appearances:
Heard on: 29 July 2025

For the Applicants: Advocate A Botha SC together with
Advocate W Krog

Instructed by: Goodes & Co Attorneys

For the Individual Respondents: Advocate T J Makgate

Instructed by: Polela Maake Attorneys

Attorneys Judgment: 8 August 2025