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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number no: 2025-123417
In the matter between:
CITY OF CAPE TOWN Applicant
and
JINJA 2 OUTDOOR ADVERTISING (PROPRIETARY) LIMITED First Respondent
THE TRUSTEES OF THE HORIZON PROPERTY TRUST Second Respondent
Heard : 25 November 2025
Delivered : 27 March 2026
Summary : Local Government — Municipal By-laws — section 19 — City retains
exclusive statutory authority over the administration and enforcement of all
applicable building codes and by -laws — Outdoor Advertising — Unauthorised
signage — Regularisation of an unpermitted structure is primarily a municipality
Pli
,~,,~,
administrative matter — City is not legally mandated to offer regularisation as a
prerequisite to enforcement — Building Regulations — National Building Regulations
and Building Standards Act 103 of 1977 — Regulation A25(6) — Administrative Law
— Meaning of "administrative action" under PAJA — Right to be heard at preliminary
notice stage.
ORDER
1. The counter claim is dismissed;
2. It is declared that the sign structure erected by the first respondent at Erf
167[...], T[...], on the second respondent’s property, contravenes:
a. The approval granted by the City under the Outdoor Advertising By -law,
2023 (“the By-law”) and sections 16(1) (a), (b)and (c) read with Schedule 2
item 4 and schedule 17, item 2 (c) of the By-law itself; and
b. the approval granted under the National Building Regulations and the
Building Standards Act 103 of 1997 (“the NBR”) and section 4 (4) read with
NBR Regulation A25 (5) itself.
3. The first respondent is directed to alter the sign structure within seven (7) days
of the granting of this Order to bring it in line with the approvals applicable at
the time of the Order, or to remove the sign structure, failing which the applicant
is authorised in terms of section 19 (5) of the By-law to remove the said sign
structure.
4. In terms of section 19 (8) of the By -law, it is directed that any cost incurred by
the City in doing alteration or other works required in terms of compliance
notice to the said sign structure may be recovered fr om the first and second
respondent, whose liability in this regard is joint and several.
5. The first and the second respondent are to pay the costs of this application and
the counter claim application, on scale C, jointly and severally, one paying the
other to be absolved. Such cost to include the costs of two counsels where so
employed.
JUDGMENT DELIVERED ELECTRONICALLY
Nziweni, J
Introduction
[1] In this application, the applicant (“the City”) amongst others, seeks a declaratory
order, declaring that the sign structure (“billboard”) erected by the first respondent
(“Jinja”) at Erf 1[...], 1[...] T[...] Road, Bridgetown on the second respondent ’s
property contravenes:
i. the approval granted by the applicant under the Outdoor Advertising By -
Law, 2023 and section 16 (1) (a), (b) and (c) read with schedule 2 item 4
and schedule 17, item 2 (c) of the By-law itself; and
ii. the approval granted under the National Building Regulati ons and Building
Standards Act 103 of 1997 (“NBR”) and section 4(4) read with NBR
Regulation A25(5).
[2] On 18 July 2025, an email addressed to the mayor and other officials triggered an
investigation into whether Jinja deviated from the approved plan. This email
correspondence contained a complaint from a private citizen regarding Jinja’s
alleged deviations from plans approved by the City . The complaint also reported a
pattern of non-compliance incidents by Jinja on other sites.
[3] In this matter, it is common cause that while Jinja obtained approval to erect the
billboard, the dimensions authorised were smaller than those of the billboard [Jinja]
actually erected . Approval was granted for one freestanding electronic billboard
limited to an illumination area of 18m² only, where the display is west facing ,
targeting the eastbound traffic along the N2, and to a height of 7.5 metres.
[4] On 23 July 2025, a site inspection of the billboard was done by the City. Later, on
the same day, the City issued a notice in terms of section 19(1) of the Outdoor
Advertising By Law 2023 (“the By-law”). The notice to Jinja, stated the following:
“The said sign structure is unauthorised in that the sign structure as erected, materially and
substantially deviates from the sign structure approved . . .
You have accordingly failed to comply with condition 5 of the approval granted . . .
You are hereby ordered , in terms of Section 19 (2) (b) and (c) of the By -law to immediately
cease with the ere ction of such sign structure. You are further ordered to remove such sign
structure or carry out any alteration thereto within 21 days of this Notice, so as to remedy your
contravention of the approval granted.
You are required by 12 P . M. on Thursday 24.07.2025 to provide the City with a written
undertaking that you will comply with this notice, failing which the City reserves its rights a
competent court on an urgent basis for appropriate relief . . .” Underlining added.
[5] On 24 July 2025, pursuant to a site inspection done on 2 3 July 2025 , the City
issued a cease-and-desist notice, ordering an immediate halt to all building activities.
Annexure MS6 to the founding affidavit [site photos], reveals that work was still being
performed on site on 24 July 2025. See photos in paragraph 120 below.
[6] On 24 July 2025, a Jinja executive director , wrote to the City , responding to the
notice issued by the City. In the communique the following was stated:
“The writer is currently travelling on business and somewhat hamstrung in finding out the
facts and conducting a thorough investigation to provide a meaningful response to your notice
facts and conducting a thorough investigation to provide a meaningful response to your notice
in the unreasonably short time afforded in your notice. We pause to mention tha t the notice
affords remedial measures to be taken within 21 Days, yet you require us to provide far
reaching undertakings within 12 Hours.
May we suggest that you also carefully consider all relevant merits, fac ts, and the history
about this matter that is complex, not to mention the interpretation of the confusing provisions
of the newly promulgated legislative provisions. . .” Underlining added.
[7] In this application , the City also seeks an order directing Jinja to bring the
Billboard into compliance with applicable approvals or remove it within seven days of
the Order. Failing compliance, the City seeks authorisation in terms of section 19(5)
of the By-law to effect the removal.
[8] In response to the City’s application, Jinja filed a counter application. In the
counter application the following reliefs are sought.
i. The respondents be exempted from exhausting any internal remedy as
contemplated in section 7 (2)(c) of the Promotion of Administrative Justice
Act 3 of 2000 , in respect of the approval of the as -built building plans in
respect of the digital billboard and or the approval of the Star College Sign
under the City of Cape Town’s Outdoor Advertising By-law;
ii. reviewing and setting aside the compliance notices;
iii. reviewing and setting aside the notice to stop the building work;
iv. reviewing and setting aside the decision to launch the main application under
the above case number;
v. declare that the City is compelled to consider the waiver of the restriction of
the height of the digital billboard even though the said sign has already been
erected;
vi. reviewing and setting aside the decision of the City, represented by Armine
Kamalie dated August 2025, to refuse the building plan application of Jinja;
vii. remitting back the building plan refusal decision to the City with the direction
that it is not to take such decision based on the Star College sign’s non-
compliance with the City’s By-law;
viii. declaring that on proper interpretation of the By -law non-profit; bodies are
not limited to only displaying electronic billboards up to a maximum of 18 m2
per panel and that in terms of section 8 (4)(i) as read with schedule 2 of the
By-law, electric billboards up to 36 m 2 per panel may be displayed by non -
profit bodies.
ix. In the alternative to paragraph 8 , declaring items 2 (c) and 2 (d) of schedule
17 of the City’s By -law unconstitutional and invalid insofar as it limits non -
profit bodies to displaying electronic Billboards or Flat signs to 18 m2.
profit bodies to displaying electronic Billboards or Flat signs to 18 m2.
x. To the extent that this Court orders that the declaration of invalidity in
paragraph 6 is suspended, it should be declared that suspension of
invalidity does not apply to the respondents and in particular but not limited
to the Star College Sign or the Christmas Tinto signs , whether for the
purposes of prosecuti ng the respondents, any compliance notices and
considering any applications for approval;
xi. declaring that non-profit bodies may receive waivers in respect of the height
of billboards in excess of 7.5 metres above natural ground level for up to an
additional 5 metres in accordance with Schedule 2 of the By-laws and that in
respect of billboards which face onto roads with a speed limit of 120km/h
such an additional 5 metres is in addition to a heig ht of 10 m above natural
ground level;
xii. declaring that the City is obliged to consider the height waiver in respect of
the Star College Sign and directing that in considering such waiver the
height of 10.8 m above the ground level falls within the parameters of the
waiver that may be granted, and accordingly that such waiver should be
granted;
xiii. in the alternative to the aforegoing and /or in addition thereto, especially in
the event that the final relief cannot be granted at this stage or if the City first
needs to reconsider the application for approval of the Star College Sign as
erected, ordering that:
II. This application be consolidated with the appli cations under case
numbers 12588/2024 and 2025-03145;
III. Pending finalisation of those applications, alternatively pending final
consideration of the applications for approval of the Star College Sign
as erected, the applicant be permitted to display advertis ing up to 36
m2, alternatively 18 m2 on the Star College Sign at its current height.
[9] There are thus two patentably distinct applications before this Court . The main
application [by the City ] proceeds principally on two related but distinct strands. In
the first instance , the City seeks enforcement through section 19 of the Outdoor
Advertising By -Law (“the by Law”) . The second strand is an alternative through
common law, by means of an interdict.
[10] The parties are in agreement that Jinja applied for and was granted approval for
[10] The parties are in agreement that Jinja applied for and was granted approval for
the 18m2 sign, at 7.5m2 high. I observe that it is common ground in this matter that
without the City’s approval Jinja went ahead and constructed a 36m2 sign at 10. 5m2
high. Thus, it is common cause that there is a discrepancy between the approved
sign and the as-built sign.
[11] Prior, to the discovery of the deviations to the approved plan; it is common
cause that Jinja did not seek an amendment to the plan before making changes, nor
did they apply for approval of the Billboard as-built. The City’s application pertains to
the enforcement for failure to build the sign in accordance with the app roved plan.
On the other hand, as mentioned above, Jinja’s application seeks a review certain
action taken by the City and declaratory order s. Jinja maintains that it does not
intend to display an image exceeding 18m² until it obtains approval from either the
City or the Court.
[12] It must be stressed that, the parties have devoted and advanced extensive and
detailed arguments in this matter. Consid ering the complexity and the competing
interests involved, it is necessary to set out the core components of these
submissions in detail.
The City’s submissions
[13] In the founding affidavit it is asserted that the conduct of Jinja constitutes a
pattern of d eliberate, flagrant and calculated disregard of the law . The founding
affidavit also averrers that on the left side of N2 there is a provincial VMS Sign, i.e. a
sign which provides real time information to motorists regarding traffic management
and public safety, including accidents, traffic conditions and road closures. The City
alleges in the founding affidavit that Jinja’s billboard [the as-built sign] is higher and
distracts the motorists’ attention from the VMS sign.
[14] Mr De Waal SC argued on behalf of the City that in respect of enforcement
through the by-law, it common cause that the main application is not challenged, but
instead, the respondents bring a collateral challenge in the form of a counter
application. The City further contends that the collateral challenge raised by Jinja is
procedurally improper and should not be entertained by this Court.
[15] According to the City, Jinja ’s conduct amounts to criminal activity. The City
maintains that Jinja contravened three sections of the by -law, which constitute
criminal offences.
[16] It is the City’s contention that the collateral challenge in the counter application
doesn’t attack the premise of the main application. According to the City, Jinja wants
to regularise their application with the City , seeking an order that does not order for
the sign to be knocked down, until such time as they have made an attempt, or had a
chance to regularise the sign.
[17] Mr De Waal SC argues that Jinja wants this Court to grant the main application,
but the operation of the main application order be suspended for a period of time in
order to allow Jinja to regularise the sign. Mr De Waal SC identifies three
specific reasons for not granting the counter application . Firstly, this Court should
grant the final order, because Jinja is not asking for the alteration of the billboard, [to
be reduced in size to conform to what was approved ]. Secondly, it is impossible for
Jinja to regularise the sign . Jinja cannot regularise the size requirement and the
height of the sign.
[18] Thirdly, the law ca nnot and does not countenance an ongoing illegality .
Furthermore, on the City’s behalf it is argued that no case has been made out for
exceptional circumstances to justify a stay, and that this Court should not
countenance the criminal behaviour of Jinja.
[19] In the counter application, Jinja seeks declaratory order and other rel ief which
may assist them when they apply in future or the approval. In this regard, t he City
contends that what is sought by Jinja in the counter application is not competent
relief. The City contends that the counter application relates to future remedy and it
is not relevant to non-compliance with the by -law. According to the City, the courts
are not in the business of giving advisory opinions about what will follow in future.
are not in the business of giving advisory opinions about what will follow in future.
[20] Mr De Waal SC contends that i n the event of an illegal sign, the City has three
options: it can require the owner to apply for approval (or 'planned approval'), order
the cessation of the illegal structure, or demand its alteration. In this case, the
obvious choice was to order an alteration, given that approval for a smaller si gn had
already been granted.
[21] It is the City’s contention that the applicant’s challenges are without merit for
three reasons: First, regarding the choice of sanction: since approval had already
been granted for a smaller sign, the City’s decision to order an alteration was both
logical and appropriate. Second, the challenge to authority must fail; as previously
addressed, the ECO was duly authorised to issue the notice. Third, the allegation
that the ECO was procedurally required to grant J inja a hearing prior to issuing the
compliance notice is flawed.
[22] Regarding the right to a hearing before compliance notice is issued , the City
relies exclusively upon the decisions of City of Cape Town v Bouley Properties (Pty)
Ltd (9410/2010) [2010] ZAWCHC 650 (21 December 2010) and City of Cape Town v
Michels and Others (22715/2023) [2025] ZAWCHC 159 (28 March 2025) . Mr De
Waal SC submits that the issuance of the notice does not constitute administrative
action; consequently, neither PAJA nor the Constitution grants the affected party a
right to be heard at that stage.
[23] In accordance with the principles set out in Michels case, Mr De Waal SC
argued that the issuance of a compliance notice is merely the conclusion of the
investigative phase; it does not in itself authorise the removal of a structure. A nd the
actual removal or demolition can only be effected through subsequent court
proceedings should the notice be disregarded.
[24] More generally, the City’s counsel submits that pursuant to the City bringing the
present application; Jinja seeks to review the City’s dismissal of their application .
According to Mr De Waal SC, the City objects to this on the basis that there is a clear
internal remedy that has not been exhausted . In essence, the City’s counsel submits
that Jinja can’t come to court for review before exhausting the internal remedy to the
that Jinja can’t come to court for review before exhausting the internal remedy to the
City Manager. This situation , so the City argued, shows that t here was simply no
effort to exhaust the internal appeal.
[25] Thus, the City argues that no case has been made for an exemption;
specifically, there are no exceptional circumstances that justify bypassing the duty to
exhaust internal remedies with the City Manager. And therefore, the administration
was denied the opportunity to self-correct.
[26] Regarding the allegation of discrimination, the City submits that the applicant
has failed to meet the requisite legal test. As established in the Eastern Cape
jurisprudence, a party alleging discrimination by a municipality must demonstrate an
intent to d iscriminate. Thus, there is a high threshold that accounts for the specific
duties and peculiar characteristics of the entities involved, such as Jinja.
[27] The City raises three points to support this assertion, the first of which concerns
Ms Debbie Evans. According to the City, the fact that Jinja alleges that she was seen
at an international conference in Dubai sociali sing with a competitor. Mr De Waal SC
submits that this does not give rise to a reasonable suspicion of bias. So, the
argument contin ues that i t is common and expected for officials at a specialised
global conference on outdoor advertising to interact socially with industry participants
[mingle socially with some of the signage companies] . To the extent the City further
argued that Ms E vans is not the final decision -maker in this matter, rendering the
allegation of bias legally irrelevant.
[28] The City further argues that the applicant’s comparison between the Jinja and
Generations signs is legally flawed. According to the City, Jinja's contention that the
approval of the Generations sign entitles their own sign to similar approval ,
incorrectly assumes that both applications were governed by the same regulatory
framework. In essence, Mr De Waal SC for the Ci ty submits that this argument
ignores the change in regulatory context that attest to the fact that the Generations
sign was approved when the area was designated a minimum control zone. The City
sign was approved when the area was designated a minimum control zone. The City
contends that the area has since been reclassified as a maxi mum control zone,
under which the Christmas Tinto sign is prohibited.
[29] Thirdly, regarding the presence of other illegal signs in the area, the City submits
that a reasonable person would understand that enforcement is a process. This
situation, so the City argued, leads to the City’s applications to remove unlawful
signage proceed at different paces based on the specific circumstances of each
case. Accordingly, the City argues that the existence of other non -compliant signs,
does not grant an applicant a right to bypass the law or establish a claim of unfair
discrimination. Mr De Waal SC developed these submissions in the course of his
argument. He submitted that in addition, the City sought an urgent interdict because
Jinja was caught actively erecting the sign. According to the City, this distinguishes
the matter from older, existing illegal signs which, as the papers show, are being
addressed through standard processes. It i s further submitted that t he City is not
required to treat every instance of unlawful activity identically; it is entitled to prioritise
immediate intervention to prevent the completion of an illegal structure.
[30] Regarding the review of the stop work order, The City asserts that the review of
the stop -works order, issued under the National Building Regulations ( “NBR”), is
premature. The City contends that Jinja has failed to exhaust the internal appeal
remedies required by the NBR and has failed to establish grounds for an exemption.
Furthermore, the City argues that the outcome of this review is irrelevant to the main
application, as the City’s current enforcement action is independently grounded in
common law and the Signage by-law.
[31] Regarding the first leg of Jinja’s argument, the City submits that Jinja incorrectly
relies on Regulation A25(6). According to the City, this regulation does not mandate
an inquiry into the cause of deviation; rather, it provides a mechanism for a local
authority to approve alternative materials if they are proven suitable. It does not
create a duty to allow unauthori sed work to continue while an investigation is
pending.
[32] Regarding the review ground [paragraph 3 of the counter application notice of
motion] predicated on the assertion that the inspector should have afforded Jinja a
motion] predicated on the assertion that the inspector should have afforded Jinja a
hearing before issuing the stop -works order, the City contends that its submissions
concerning the compliance notice apply with equal force to this challenge.
[33] In respect of paragr aph 4 of the counter -application, the City confirms that they
rely upon the same contentions previously advanced regarding the allegation of bias.
[34] Regarding paragraph 5 of the notice of motion in the counter -application, in
which Jinja seeks a declarator to compel the City to consider a waiver of the height
restriction; t he City contends that while it [the City] allows for the regularisation of
existing illegal signs, Jinja’s position is legally untenable. According to the City, this is
so because Jinja seeks a declarator to compel a waiver of the 7.5 m2 height
restriction prescribed in Schedule 2, item 4 for landscape billboards. The City argues
that t his request is both premature and incompetent ; because Jinja has not yet
applied for such a waiver, and the By-law provides no discretion to waive this specific
height limit. The City asserts that the applicant is effectively seeking an advisory
opinion from the Court on a prohibited deviation.
[35] Furthermore, the City submits that a w aiver is only permissible for a proposed
billboard and not one already built . And this is permissible only where the property is
adjacent to an elevated section of a road or bridge. The City hold the view that the
current sign meets neither criterion.
[36] In respect of paragraph six of the counter application notice of motion, the City
contends that Jinja's attempt to distinguish electronic billboards from standard or
non-illuminated signs is legally misplaced. According to the City , Jinja relies on
Section 8(4)(h) of the by-law; however, that provision is inapplicable to this matter as
billboards are exclusively regulated by the specific requirements set out in Schedule
2.
[37] Regarding prayer 7 of the counter -application, the City maintains that Jinja
seeks to remit the building plan refusal with a directive that the City must ignore non -
compliance with the by-law during reconsideration. The City firmly believes that t his
is not only an incompetent request for an advisory opinion, but it is also legally
flawed. According to the City , Section 7(1) of the NBR expressly mandates that a
flawed. According to the City , Section 7(1) of the NBR expressly mandates that a
local authority be satisfied that an application complies with 'any other applicable law'
before approval. And that t he Signage by-law constitu tes such law; therefore, the
City is legally obligated , and not merely permitted to consider by -law compliance
when evaluating a building plan.
[38] Regarding paragraph 8 of the counter application, Jinja seeks a declarator that
non-profit organisations (NPOs) are entitled to display 36m² billboards rather than
being restricted to 18m². In this regard the City does not dispute the law but clarifies
its application. According to the City, under Schedule 2, all entities including NPOs
may erect 36m² billboards, provided they are located within an area of minimum
control. However, the City provides a special dispensation under Schedule 17,
allowing NPOs to erect billboards in more sensitive maximum or partial control zones
where they wou ld otherwise be prohibited. Because of the environmental sensitivity
of these zones, such signs are strictly limited to 18m². The City contends that Jinja’s
request for a blanket declarator ignores this crucial zonal distinction.
[39] Insofar as the constitutio nal challenge raised in prayer 9 of the counter -
application, the City submits that this issue is both premature and legally irrelevant to
the current proceedings. Mr De Waal SC contends that the guidance and advisory
opinions sought by Jinja relate to futu re events, rendering them irrelevant to the
current proceedings concerning illegality. The City holds the view that Jinja’s
contention that it is irrational to limit NPOs to 18m² billboards while commercial
owners are allowed 36m² is based on a fundamental misreading of the by-law.
[40] It is contended on the City’s behalf that there is no discrimination against NPOs;
in fact, the by-law grants them preferential rights. Under the standard Schedule 2
framework, NPOs are entitled to the same 36m² billboards as commercial entities in
areas of minimum control. The 18m² limit only applies to the special dispensation
under Schedule 17, whi ch uniquely empowers NPOs to erect signs in sensitive
maximum and partial control zones where commercial billboards are strictly
prohibited. The City asserts that t he applicant’s constitutional attack is therefore
prohibited. The City asserts that t he applicant’s constitutional attack is therefore
factually incorrect as the by-law does not marginalise NPOs but provides them with
expanded opportunities for exposure.
[41] Regarding paragraph 10 of the counter application notice of motion , the City
contends that Jinja proposes that if the constitutional relief is granted and the order
of invalidit y is suspended, the court should specifically exempt the Jinja and Star
College signs from that suspension.
[42] The City further submits that this request for exceptionalism is legally untenable.
According to the City, t he Constitutional Court has established that remedies in
constitutional matters must consider the interests of all similarly situated parties; a
court does not single out a specific litigant for preferential relief to the exclusion of
the public at large. The City maintains that w hile the applicant refers to the COGA
case that authority actually supports the opposite view . The City contends that relief
in constitutional matters is intended to assist all affected parties, ensuring overall
fairness and upholding the rule of law rather than granting a private dispensation for
two specific signs.
[43] Regarding prayer 11 of the counter-application, according to the City, Jinja seeks
a declarator that NPOs are entitled to height waivers under Schedule 2, specifically
for roads with speed limits of 120km/h. T he City maintains that t his request is legally
redundant. So the argument continues that while any party, including an NPO, may
theoretically apply for a height waiver, Jinja cannot qualify as a matter of law. The
City asserts that this is so because as previously submitted, such waivers are strictly
reserved for billboards adjacent to bridges or elevated road sections , conditions
which this site does not meet. According to the City, Jinja in their counter application
is effectively asking the Court to declare a right in a vacuum that cannot be realised
on the facts . The City argues that the entire counter application need not be
considered by this Court because it is an exercise in law reform.
[44] In prayer 12 of the counter claim notice of motion, Jinja seeks a declarator to
compel the City to consider a height waiver and, further, a directive that a waiver of
up to 10.8metres be granted for the Star College sign.
[45] The City argues that this request is a blatant in vitation for the Court to overstep
[45] The City argues that this request is a blatant in vitation for the Court to overstep
its bounds. Beyond the fact that no such waiver is legally permissible in a maximum
control zone, Jinja is asking the Court to engage in judicial overreach. This is a
highly technical and discretionary administrative function; according to the City, this
Court does not possess the specialised expertise to assess the safety or aesthetic
impact of a 10.8 -metre billboard. Consequently, the Court cannot substitute its own
decision for that of the City in such a technical domain.
[46] The City contends that in prayer 13 of the counter -application, Jinja seeks
interim relief to operate the billboard while they pursue regularisation or until this
matter is consolidated with litigation involving their 14 other illegal signs currently
before this Division. The City contends that this request is legally untenable.
According to the City, the g ranting of such relief would ef fectively sanction ongoing
illegality and pre-empt the City’s enforcement powers. The City firmly maintains that
there is no legal basis to allow a non -compliant structure to operate simply because
the owner has initiated separate litigation elsewhere; to do so would undermine the
rule of law and the very purpose of the City’s by-laws.
Jinja’s submissions
[47] As mentioned previously , Jinja does not dispute that the physical frame of the
billboard exceeds the size and the dimension that were approved. Nonetheless, Jinja
contends that the billboard remains in compliance so long as the actual content
displayed does not exceed 18m² , notwithstanding that the physical frame was
constructed to accommodate 36m². Jinja acknowledges that t his stands i n direct
contrast to the City’s position: that the approval was granted for an 18m² structure,
and the erection of a 36m² frame, regardless of the surface area utilised , constitutes
a material breach of the authori sed dimensions. The submission ran that th e City’s
approval is limited to an illumination area of 18 metres squared only, where the
display is West facing, targeting the East bound traffic along the N2. So, if they do
not switch on the sign for 36 m2, and they only illuminate 18m2, it is in compliance.
[48] In essence, Jinja asserts that the sign has the capability to display an image of
36m2, it is, in fact, capable of displaying a range of images, from small to large , up to
36m2. Jinja further asserts that it is not their intention to display an image larger than
36m2. Jinja further asserts that it is not their intention to display an image larger than
18m2, until such time they get approval to do so from the City, or from the Court if the
City refuses.
[49] Insofar as the height is concerned, Mr Botha SC, on behalf of Jinja, asserts that
it is necessary for the billboard to be higher and larger than approved.
[50] The essence of Mr Botha's SC argument is that the situation encountered on -
site [of the billboard] is a routine aspect of construction projects. Mr Botha SC
developed the point by stating that t he building regulations are designed with that in
mind, allowing developers to proceed while rectifying deviations through amended
plans.
[51] Mr Botha SC submits that Section 19(2) of the by-law provides the City with
three distinct enforcement options. The f irst, under Section 19(2)(a), empowers the
City to direct an owner to regularise an unauthorised sign rather than ordering its
immediate removal. Jinja contends that when a party is directed to seek such
approval, the unlawfulness is resolved through this specific statutory mechanism.
Consequently, constitutional authorities regarding summary deprivation or illegal
state action are inapplicable here, as the City is acting strictly within its legislated
discretion.
[52] According to Jinja, the City’s refusal is predicated on a narrow and inflexible
application of Schedule 17(2)(d) of the by-laws Mr Botha SC emphasised that the
City contends that the 18 m2 maximum is an absolute statutory ceiling that is not
subject to furt her waiver. The emphasis of his argument is that the City, by framing
the refusal exclusively within the four corners of the by-law and ignoring the broader
discretionary powers afforded under the National Building Act , they have effectively
closed the doo r on any meaningful administrative assessment, rendering their
decision-making process predetermined and irrational.
[53] The thrust of this argument is that the City should not treat these circumstances
as a simple illegal act requiring punishment. Instead, t he City should adhere to its
own election: allowing the owner to remedy the situation through the regularisation
process from the outset.
[54] According to Jinja’s argument, the City possessed three distinct enforcement
[54] According to Jinja’s argument, the City possessed three distinct enforcement
options under the by-law. Without having followed such a course, or considering any
alternatives, so the argument ran, the City jumped the gun by pursuing the most
extreme measure. Even though the sign was incompl ete, having been erected
without its panels ; and remained within the overall dimensions permitted by the by -
laws, the City refused to engage with Jinja’s attempts to resolve the matter.
Furthermore, the City’s conduct was procedurally flawed: they launched their legal
application without even responding to Jinja’s correspondence, effectively ignoring
the very regularisation path that is provided for by their own regulations.
[55] Mr Botha SC developed these submissions in the course of his argument and
stated that th e impression of the City's irrationality is bolstered by the fact that the
client obtained formal approval for the electronic sign; the sole allegation is that the
resulting structure is larger than initially approved. He submitted that c rucially, even
on the City’s own version, the dimensions remain within the limits of the applicable
by-laws. During oral argument Mr Botha SC stressed that the failure to consider a
'fix-it' approa ch for a structure that fundamentally meets by -law standards further
underscores the disproportionate nature of the City's enforcement action.
[56] A billboard structure that is not yet displaying advertisements does not warrant
tearing the whole thing down . To demand its immediate demolition while an
application for regularisation is being considered is procedurally irrational. There is
no justification for the permanent destruction of a substantial asset when a clear
statutory path to compliance exists and is currently being pursued.
[57] Mr Botha SC submitted that he bears it in mind that Mr De Waal SC repeated
contended that Jinja’s review is premature. However, he also notes that the City
confirmed that even if Jinja were to follow the City's prescribed process, the approval
would be refused regardless. According to him, this position renders the prematurity
argument a mere obstruction and reduces the administrative process to an exercise
in futility.
[58] It is further submitted that Jinja’s challenge is in no way pre-emptive; it is a direct
and necessary reaction to the City’s formal position. Jinja argues that t he City has
and necessary reaction to the City’s formal position. Jinja argues that t he City has
stated under oath that they are legally incapable of considering an application for
amended plans until the existing structure is demolished. It is the contention of Jinja
that i n effect, the City contends that once a sign is erected, the right to seek
regularisation is permanently forfeited. According to Jinja, t his demolish -to-apply
requirement is procedurally irrational and creates an administrative impasse that
leaves Jinja with no remedy other than this reactive challenge to the City's
enforcement action.
[59] According to Jinja, a s established by the Constitutional Court, the law does not
require a party to engage in a process where the outcome has been predetermined,
and where the decision -maker is merely being obstructive. According to Jinja, t he
City's own building plan refusa l specifically citing the 18 m2 as an absolute,
unwaivable barrier proves that they have already closed their minds to the merits of
their application. To insist on exhausting a remedy that the City has already declared
dead on arrival is a waste of judicial and administrative resources.
[60] Mr Botha SC submits that the City’s position is that once a sign has been
erected, it must be summarily demolished before any application for regularisation
can even be considered.
[61] Finally, Mr Botha SC argues that should the Court find the City’s decis ion to
enforce removal under sections 19(2)(b) and (c) to be irrational, that decision must
be set aside. In such an event, the billboard cannot be classified as illegal in a way
that warrants demolition. Rather, it remains a structure eligible for retrosp ective
approval, transforming the matter from an enforcement dispute into a standard
administrative application for compliance.
[62] Jinja accuses the City of selective enforcement and competitor bias that
undermines the City's impartiality.
[63] Jinja contends that its counterclaim constitutes a defensive challenge aimed at
the underlying administrative acts. Mr Botha SC submits that the hallmark of a
collateral challenge is that an aggrieved party is not required to litigate in advance.
Instead, the party is entitled to wait until the administrative action is sought to be
enforced before raising the validity of that action as a defence. According to Jinja, the
reactive challenge goes to the heart of the enforcement proceedings, asserting that a
reactive challenge goes to the heart of the enforcement proceedings, asserting that a
person cannot be legally compelled to comply with an invalid or irrational
administrative act.
[64] Jinja argues that the City cannot seek to enforce an act that is itself the s ubject
of a legality challenge. According to Mr Botha SC, to suggest otherwise is to ignore
the established jurisprudence that allows a citizen to test the validity of a decision as
a primary defence in enforcement proceedings.
[65] Jinja, a seeks a declarator y order to provide necessary judicial guidance on the
interpretation and application of the by-law. Such relief is appropriate and necessary
for two reasons: should this Court find Jinja’s interpretation of the by-law incorrect
but the by-law itself unconstitutional, it ought to strike down the provision. Doing so
would provide essential clarity not only to the parties but to all residents and entities
within the City in a similar position.
The law
[66] The letter app roving the application for the sign reads, in relevant part, as
follows:
“. . . Your application submitted on . . . for a freestanding electronic billboard measuring 18m2
to be erected at the above-mentioned premises, refers.
Decision
After considering the merits of the application and the information furnished in the application,
the application is approved in terms of Schedule 17 read with Schedule 2 of the Outdoor
Advertising By-law, 2023, subject to conditions imposed in terms of section 10 of the By-law.
The approval is limited to an illumination are of 18m2 only, where the display is west – facing,
targeting the eastbound traffic along N2. . .
Reasons for the decision
This application has been assessed . . . and found compliant and desirable . . .
• This sign type is allowed in an area of Maximum Control.
• The sign is appropriate in this Area of Control.
• The addition of the proposed sign in this area is not excessive and will not create
clutter.
• This sign does not obscure any previous approved signs.
• Public consultation was concluded with no objections.
National Building Regulations applicability
National Building Regulations applicability
As this s ign, including the sign structure exceeds the size, height and weight according to
Table 1 of the By -law, such sign structure is deemed to be a temporary building and an
application must be submitted and an approval obtained in terms of the National Building
Regulations and Building Standard Act, . . .
Conditions
1. . . .
18. The City may, at any time, withdraw an approval granted in terms of this By - Law or its
predecessor or amend any conditions or impose a further condition in respect of such
approval, if a sign or advertising structure does not comply with any of the provisions set out
in Section 10 (3) (a-e) of the By -law . . .”
[67] Section 19 of the by-law which is a key provision in these proceedings provides
the following:
“19. ENFORCEMENT AND REMOVAL OF SIGNS (1) If any sign is displayed or is in the
process of being erected in contravention of this Bylaw, or any provision, condition,
requirement or condition of approval imposed or deemed to have been imposed in terms of
this By-law, the City may serve a written compliance notice on one or more of the following
persons: (a) the sign owner or lessee of the sign; (b) the land owner or tenant on whose land,
building or premises the sign is erected; (c) a person whose products or services are
advertised on the sign; (d) a person whose name or image appears on the sign; (e) a person
or company who erected the sign; (f) the media agent, authorised agent; or (g) any other
party responsible for or who benefits from the display of the sign.
(2) The City shall call upon such persons to (a) obtain approval for the said unauthorised sign
subject to the applicable administrative penalty being paid; (b) cease the erection of such
sign; or (c) remove such sign or carry out any alteration thereto.”
Evaluation
[68] Before dealing with the City’s application, in the circumstances of this case I
consider it prudent to deal first with the counterclaim.
(a) Jinja’s counterclaim
[69] The thrust of Mr Botha SC’s argument [counsel on behalf of Jinja], centres upon
the interpretation to be given to Section 19 of the by-law.
[70] The City’s Outdoor Advertising by-law is aimed at tightening up on the regulation
and enforcement of unauthorised signs. The objects of the by -law are stated as
follows:
“The purposes of this By-law are to—
follows:
“The purposes of this By-law are to—
(1) regulate outdoor advertising in the jurisdiction of the City of Cape Town to ensure that it
respects the integrity of any site on which it is displayed, and does not negatively impact on
the character of the locality in which it is displayed. In this regard, the protection of visual,
tourist, traffic safety, environmental and heritage characteristics are key considerations;
(2) create economic opportunities by improving the ease of doing business with the City,
reducing red tape and providing for a number of signs that do not require applications to be
submitted before they are erected;
(3) address the regulatory gap created by the introduction of digital and
electronic signage technologies and promote the use of such creative technologies;
(4) determine areas of control to deal with the dynamics between the type of the sign, the sign
itself and where it is to be located; and
(5) set out the procedures to be followed and the criteria to be used when seeking approval
for a sign constituting outdoor advertising in the City of Cape Town.”
[71] It is evident that the primary objectives of the by -law are to establish an efficient
administrative framework for sign approval, while ensuring effective regulation of
outdoor advertising. These measures are designed to safeguard public welfare by
promoting traffic safety and preserving the aesthetic integrity of the community.
[72] In the present case, t he billboard in question violates the approved plan.
Adherence to the plan is essential for regulating and enforcing standards regarding
unauthorised signs. The City is responsible for managing billboards according to the
by-laws and the approved plan.
[73] As one would expect, a plan can only be approved if it is consistent with the by -
law. As such, a sign is considered displayed without permission [unauthorised] if it
fails to meet the specific requirements of the Outdoor Advertising By-law
[74] Jinja’s defence in the counter application is therefore proceeded principally on
three related but distinct strands.
1. The Defensive (Collateral) Challenge;
2. Legality vs. PAJA; and
3. Futility of internal remedies.
2. Legality vs. PAJA; and
3. Futility of internal remedies.
[75] As I have already indicated that, while the material facts are not in dispute as to
size and capability of the as-built sign, i t is common cause and Jinja effectively
concedes that the as-built sign fails to comply with the City’s approval in two material
respects. First, regarding dimensions: while the approval was strictly limited to 18m²,
the structure has been built to accommodate a 36m² display. Secondly, the height
exceeded the approved 7,5 metres by ±3m2. There is no factual dispute that the sign
significantly exceeds its authorised specifications.
[76] Notwithstanding that, Jinja wants to portray the deviations as minor necessary
technical deviations that do not justify the City’s extreme response.
[77] Jinja is arguing that the purpose of the restriction is to limit the visual impact of
the advertising. The corollary of Jinja’s assertion is that: the sign is the advertisement
itself, not the steel frame. Furthermore, Jinja holds the view that as long as they only
use half the frame [18m²], they believe they are staying within the spirit of the
approval.
[78] Jinja lodged an application to the City containing stipulated dimensions for the
proposed structure and received approval for construction of 18m². The flipside of
this point is that the application submitted by Jinja was unequivocal and deliberate in
its specifications. As such, t he approval l etter dated 25 Fe bruary 2025, that
conveyed the approval of Jinjas application was couched in the following terms:
“Your application submitted on 23 .01.2025 under case number 110025968 for one
freestanding electronic billboard measuring 18m2 to be erected at the above premises, refers.
Decision
After considering the merits of the application and information furnished in the application, the
application is approved in terms of schedule 17 read with Schedule 2 of the Outdoor
Advertising By-law, subject to conditions imposed in terms of Section 10 of the By-law.
The approval to an illumination area of 18m 2 only, where the display is west -facing, targeting
the eastbound traffic along N2 . . .
Taking into consideration the General Factors as set out in Section 6(5) of the By -Law, this
application was found to be acceptable for the following reasons:
• This sign-type is allowed in an area of Maximum Control.
• This sign-type is allowed in an area of Maximum Control.
• The sign is appropriate in this Area of Control.
• The addition of the proposed sign in this area is not excessive and will not create
clutter.
• The sign does not obscure any previously approved signs.
Public consultation was concluded with no objections...”
[79] Pursuant to a complaint and a visit to the site by Ms Mohlapi [from the City ], it
was found that the billboard materially and substantially deviates from the sign
structure approved by the City , in that it exceeded the approved 18m 2 in size and
7.5m in height on the approved plans. The approximate size was 36m2 (almost
double the size) and the height was approximately 10.5m (3m higher than the height
depicted on the approved plan).
[80] In the circumstances, it is wrong for Jinja to effectively treat the sign approval as
creating a limit only on usage rather than a limit on the entire construction. I do not
think that by any fair construction of Jinja’s application and t he City’s approval, Jinja
is correct in their assertion. The safety standards for structures such as signage are
governed by a framework comprising national legislation, technical engineering
codes, and local municipal by -laws. Under this framework, the Municipalities are
tasked with regulating the physical foot print and bulk of structures to ensure safety,
structural integrity against wind-loading, and aesthetic compliance.
[81] Clearly, a 36m² frame has a different wind resistance and structural requirement
than an 18m² frame. For that matter, n o specialis ed expertise is required to
understand this. Even if the display is small, the oversi zed structure remains an
unauthorised building work under Section 4 of the National Building Act. Moreover, it
bears noting that Jinja seeks to draw a distinction between usage and infrastructure.
They contend that compliance is determined by the operational use of the sign’s
surface area [the 18m² display ] rather than the physical dimensions of the structure
[the 36m² frame ]. The City’s posit ion is that this distinction is legally flawed, as a
building permit regulates the physical infrastructure itself, regardless of its ultimate
usage. I tend to agree with the City on this point . This conclusion is fortified by a
usage. I tend to agree with the City on this point . This conclusion is fortified by a
consideration of the precise words employed in the approval letter. A fair reading of
Jinja’s submissions compels the conclusion that Jinja in this regard attempts to move
the goal posts and recast the approval in focus solely to their interest. And away from
the law.
[82] An even closer scenario to our case was addressed in Bouley, supra, where the
sign was defined by its physical presence. This case is more instructive in the
present circumstances. I gather that t he City's approval is tied to the specifications
of the application . Where an application specifies 18m² but the resulting structure is
36m², the as-built design or structure is unlawful because it was never sanctioned by
the City.
[83] Jinja asserts that the sign’s structure is safe and that an engineering expert has
confirmed this. However, this assertion does not override the requirement for
municipal approval, nor can it be accepted at face value without a formal inquiry to
test the validity of Jinja’s claim . From the facts as set forth, it clearly appears that
Jinja’s submissions reflect a calculated attempt to re -characterise the regulatory
framework to serve its private interests moving the focus away from statutory
compliance and toward personal convenience.
Regularisation
[84] I am stating this at the cost of repeating myself, Jinja in paragraph 15.2 and 15.3
of Jinja’s answering affidavit in respect of Part B , states that the City’s application is
premature and unjustified because it failed to follow the By -law’s mandatory
procedure. Specifically, the City should have issued a compliance notice allowing the
Respondents to regularise the sign. According to Jinja this is a step that is
particularly necessary given that the modifications were made to ensure economic
viability and resolve traffic safety concerns. Jinja further states that the City’s refusal
to approve the subsequent building plan application is procedurally and substantively
flawed. Specifically, the decision to reject the regularisation of the structure under the
National Building Regulations (NBR) Act based on purported non-compliance with a
local by-law is legally reviewable. This extends to the validity of the by-law provisions
themselves and the City's underlying decision to initiate this application, both of
which are subject to review in terms of Promotion of Ad ministrative Justice Act 3 of
2000 (“PAJA”).
[85] Mr. Botha SC [on behalf of Jinja] contends, whilst drawing an analogy to the
[85] Mr. Botha SC [on behalf of Jinja] contends, whilst drawing an analogy to the
City’s own position. He argues that, rather than treatin g the matter as a 'speeding
ticket' offence, the City should have first issued a 'fix -it notice,' providing Jinja with a
formal warning and a meaningful opportunity to remedy the defect . As correctly
pointed out by the City’s counsel that it is unlawful for any person to construct a
building or structure in violation of an approved plan. It should be noted that t he
issue of regularisation, the whole question is, ultimately, to be judged in the light of
the particular case.
[86] Paragraph 30 of the Jinja’s answering affidavit in respect of part A, states that
under the NBR Act and associated regulations, the sign is classified as a temporary
building subject to less stringent requirements . Furthermore, Jinja submits that
Regulation A25(6) allows for as-built plans to be approved by the municipality before
the issuance of an occupancy certificate, which Jinja has already submitted.
[87] To reinforce this, Jinja alleges that the possibility of regularising a structure
through as-built approval or amending conditions is present in both national and local
frameworks.
[88] It is however significant to note that notwithstanding these submissions, the City
retains exclusive statutory authority over the administration and enforcement of all
applicable building codes and by -laws. As an organ of State with autonomous
executive powers, the City’s constitutional functions cannot be subverted by the
unilateral demands of a private party. The City is entitled to, and indeed mandated to,
insist upon strict adherence to its duly promulgated by-laws.
[89] Notably, Jinja’s defences appear inconsistent, relying simultaneously on
Regulation A25(6) of the NBR Act and Section 19 of the By -law, it does not follow a
single clear legal path. The central issue, therefore, is whether the existing legal
framework provides Jinja with the protection it claims under these circumstances.
[90] Jinja argues that in the circumstances of this case t hey are entitled to
regularisation from the outset . Without meaning to be disrespectful to Mr Botha SC,
that argument makes no sense to me. It is, I think, worthwhile pausing at this point to
note that it is indeed a criminal offence to deviate from an approved plan . This is so
note that it is indeed a criminal offence to deviate from an approved plan . This is so
because a p erson is expected to obtain an official approval from the municipal
authority for any proposed deviation from the approved plan before the person may
deviate from the plan. Moreso, if the deviations are substantial as in the instant case.
On the facts of t he instant case, however, I am in no doubt whatsoever that the
deviations involved in this case cannot be characterised as inconsequential.
[91] To put a billboard without permission may include the following:
• Failure to obtain prior written approval;
• Deviation from approved plans [As in the present case];
• Lapsed permits;
• Unauthorised alterations.
[92] In considering the competing submissions I believe the starting point must be
recognising that s ection 19(2) of the by-law outlines three distinct options the City
may exercise when demanding compliance from a non -compliant person. Thus, the
City may serve a written notice on a non -compliant person demanding one of the
following three actions:
(a) obtain approval for the said unauthorised sign subject to the
applicable administrative penalty being paid;
(b) cease the erection of such sign; or
(c) remove such sign or carry out any alteration thereto.
[93] In my view, Jinja’s argument, that the City was obliged to serve a notice
specifically in terms of section 19(2)(a), faces fundamental difficulties. Plainly, the
words of the by - law do not warrant such a narrow construction. I bear very much in
mind that r egularisation of an unpermitted structure is primarily a municipality
administrative matter. Furthermore, as the City asserts, it would be absurd to prohibit
the municipality from preventing the display of an unauthorised sign.
[94] Hence, the City argues that at best, Jinja’s submissions might support an
application for a stay of proceedings, allowing for a period of regularisation before
the City enforces the notice.
[95] In my mind, it is very clear that section 19(2) is unambiguous; it merely grants
the City the clear discretion to choose any of the three prescribed actions based on
the specific circumstances of the non -compliance, to regulate the contents of the
notice.
[96] Additionally, the City has some pecuniary interest in ensuring that there is
always full compliance with the by-law. Hence, t he City in this case exercised its
discretion under the by-law by selecting options (b) and (c) as the required actions.
Consequently, Jinja was mandated to comply with these specific directives to
remedy the non-compliance. Options (b) and (c) are clearly complementary, as both
actions seek to bring the sign into alignment with the approved plan. Here it is quit e
plain that the notice issued by the City directed Jinja either to desist from certain acts
or to take specified affirmative actions to ensure compliance.
[97] As previously noted, Mr De Waal SC, [for the City] argues that since the
issuance of the notice is not an administrative action, neither PAJA nor the
Constitution requires a hearing at that stage. The notice issued under section 19(b)
and (c) therefore did not violate Jinja’s right to due process, even though it lacked a
prior opportunity for regularisation. Ultimately, the absence of such an opportunity at
the preliminary stage did not deprive Jinja of the hearing to which it was entitled. A
special and ev en more difficult problem for Jinja, is that in this instance, the City’s
election was rational and appropriate, as the extent of the deviation from the
approved plan necessitated a direct order to [remove the sign/cease work] rather
than a mere request for minor alterations.
[98] I find no merit in Jinja’s argument that they ought to have been given an
opportunity to regularise before the issuance of the notice. I reject that submission in
its entirety.
[99] Surely, the City is not legally mandated to offer regularisation as a prerequisite to
enforcement; rather, it possesses the statutory discretion to select the most
appropriate enforcement mechanism based on the specific nature of the
appropriate enforcement mechanism based on the specific nature of the
contravention. A contravening party cannot assert a right to regularise an un lawful
structure as a means to oust the City’s enforcement powers. The authority to permit
regularisation is a discretionary power vested in the municipality, not an entitlement
held by the non-compliant party.
[100] The By -law empowers the City to initiate proceedings to correct or halt
contraventions where it determines that public safety and welfare so require. This is
consistent with Section 17(4), which, while providing a procedural mechanism for an
owner to apply for rectification upon payment of a penalty, does not divest the City of
its ultimate discretion to refuse such an application in favour of direct enforcement.
The application is a right, but the approval remains at the City’s discretion.
[101] In an apparent last-ditch argument, Jinja urges that this Court interprets section
19. Jinja’s argument violates a basic rule of statutory construction, namely, that in
construing legislative enactments the Court is not permitted to isolate single phrases
but must consider them in the context in which they are found. As I have already
mentioned, there is no ambiguity in the construction of section 19.
Relief to review the NBR refusal to approve as built building plan refusal
[102] The high-water mark of the City’s opposition is that Jinja has failed to exhaust
the internal remedies available to it. Consequently, Jinja is barred from seeking
judicial relief as it cannot bypass the mandatory provisions of Section 7(2) of PAJA.
Review of compliance notices
[103] Considering the court's earlier finding, regarding the regularisation argument,
this specific ground of review cannot be sustained. In this regard, I am inclined to
agree that the issuance of the notice does not, in itself, constitute administrative
action. Consequently, it does not fall within the ambit of PAJA, as it lacks the
requisite direct, external legal effect and finality required by Section 1 of PAJA.
Bias
[104] The allegation of bias is entirely unsubstantiated. Jinja has failed to provide any
objective evidence to support such a claim, let alone meet the high threshold of a
reasonable apprehension of bias required for judicial review.
Review of stop work order
[105] This ground of review has been addressed concurrently with the regularisation
argument. Having found that the City was entitled to enforce compliance through its
statutory powers, the challenge to the stop -work order is similarly without merit and
must fail.
Declarator to compel the City to consider a waiver of height restriction
[106] The prayer that this Court should compel the City to waive height restrictions is
legally untenable. Under the constitutional doctrine of the separation of powers, the
authority to grant or refuse a waiver is a discretionary executive function reserved
exclusively for the municipality. Once it is established that the City was correct in its
enforcement duty, a court cannot interf ere with that discretion by substituting its own
decision for that of the City. To do so would be to impermissibly arrogate to the court
a planning function that belongs solely to the local authority.
[107] For that matter, Jinja has failed to establish a clear or protectable right that
would warrant the granting of a declaratory order. A declarator is not a remedy for a
mere hope or a commercial preference; it requires a legal interest in an existing or
prospective right. Given that the sign remains a non -compliant structure, Jinja
possesses no legal entitlement to a waiver of height restrictions.
[108] Jinja’s application constitutes an impermissible attempt to achieve through the
back door what ought to be secured through the proper administrative channels. In
the circumstances of this case, b y seeking a declarator to bypass the City’s
discretionary waiver process, Jinja effectively seeks that this Court should condone a
clear contravention of the By-laws and subvert the City's constitutional authority.
[109] It does not follow either that a hypothetical future circumstance cures the
current, admitted contravention. Furthermore, as I have already mentioned, the
current, admitted contravention. Furthermore, as I have already mentioned, the
power to grant such a waiver resides exclusively within the City’s discretion .
Moreover, a discretion that cannot be pre-empted or dictated by this Court. Similarly,
Jinja cannot rely on a speculative administrative outcome to shield itself from the
immediate consequences of its unlawful conduct. Such a strategy is legally
untenable. Even if Jinja applies for a waiver, the City has the discretion to refuse it. It
is my view that these factors weighs in favour of not granting the waiver.
[110] A court cannot grant relief based on a speculative application that hasn't
happened yet. Jinja is essentially asking the Court to protect an illegal structure now
because they might get permission for it later.
[111] The City is thus correct in asserting that Jinja’s contention that the 7.5m height
requirement in Schedule 2 might be waived in a future regularisation application is
legally irrelevant to the present proceedings.
Remitting the building plan refusal with the direction that no-compliance with
the by-law cannot be taken into account
[112] The request for remittal with a direction that the City ignore by -law non -
compliance is legally untenable. This is particularly so due to section 7(1) of the NBR
Act that creates a mandatory duty for the City to ensure compliance with any other
applicable law, a category that includes duly promulgated municipal by -laws. A court
order compelling an official to bypass these statutory requirements would constitute
an impermissible intrusion into the City's exclusive executive domain and a violation
of the principle of legali ty. Unless the relevant by -law is formally challenged and set
aside, it remains binding on both the City and the court.
[113] Finally, I agree with Mr De Waal SC that the NBR and the By -law cannot be
treated as independent, parallel tracks.
Declaring that non-profits are not restricted to 18m 2 Billboards and that they
may display 36m2 Billboard, Declaring item 2 (C) and 2 (D)of schedule 17 of
the By-law to be invalid as it limits the rights of non-profits
[114] In the context of this matter, the abovementioned declaratory reliefs sought by
Jinja are legally incompetent. A court cannot grant a declarator that effectively
Jinja are legally incompetent. A court cannot grant a declarator that effectively
bypasses the City’s legislative authority or grants rights that directly contravene
existing, valid by-laws. Furthermore, absent a successful direct challenge to the
constitutionality of the by-law itself, the Court lacks the jurisdiction to write -in new
dimensions or compel the City to ignore its own regulatory framework.
[115] The above reasoning applies with equal force to the prayer for a mandamus to
compel the City to consider a height waiver. Jinja’s request that the Court direct a
specific waiver of up to 10.8m for the Star College sign is legally incompetent. It is
not the function of the Court t o pre -empt the City's executive discretion by
prescribing a specific height; to do so would constitute an impermissible substitution
of the Court’s opinion for that of the designated regulatory authority.
[116] The interim relief sought by Jinja pending a hypothetical regularisation, is
fundamentally flawed as it fails to address the City’s primary application for
enforcement. By focusing exclusively on its own commercial interests, Jinja ignores
the City’s statutory mandate and seeks to suspend the operati on of valid By -laws
without a proper legal basis. Significantly, effectively, Jinja requests this Court to stay
the City's enforcement powers while it attempts to remedy a self-created illegality.
[117] The point that has troubled me most [with the counter -claim] is the underlying
and persistent theme that runs through Jinja’s application ; which is the erroneous
assumption that the City’s statutory obligations should be subordinated to Jinja’s
commercial preferences. This position is fundamentally incompatible w ith the
principle of legality, which requires all parties , regardless of their commercial
objectives, to operate within the bounds of the law.
[118] This then leads me to the primary application brought by the City. It is right to
point out and emphasise again that given the facts of this matter, i t was procedurally
efficient and convenient for this Court to first address Jinja’s counter -application, as
efficient and convenient for this Court to first address Jinja’s counter -application, as
the merits of th e counter claim serve to illuminate the strength of the City’s main
case.
The main application
[119] I have already indicated (in paragraph s 3 and 10 above) that the material facts
and circumstances underpinning the City’s application are largely common cause
between the parties. By this I mean, of course, that the primary points of contention
are limited to the legal consequences of Jinja’s non -compliance. However, it is to be
noted that when it comes to the application by the City, the City merely seeks a
declaratory order and an order directing Jinja to alter the sign.
[120] The following photos in my mind clearly depict a structure that exceeds the
permissible height restrictions and was erected in open defiance of the City's
regulatory framework. They demonstrate that the violations were not merely
technical or procedural but constitute a substantive and ongoing breach of the law
that necessitates immediate judicial intervention.
Conclusion
[121] I can find no reason as to why this Court should not grant the reliefs sought by
the City. I am thus satisfied that the City has presented a case that warrants the
granting of the of the orders they are seeking. Save for the scale of the costs. I am
not convinced that the circumstances of this case warrant a punitive cost order. The
appropriate scale in this case is scale C.
[122] In the result I make the following order:
Order
1. The counter claim is dismissed;
2. It is declared that the sign structure erected by the first respondent at Erf
167[...], T[...], on the second respondent’s property, contravenes:
a. The approval granted by the City under the Outdoor Advertising By -law,
2023 (“the By-law”) and sections 16(1) (a), (b)and (c) read with Schedule 2
item 4 and schedule 17, item 2 (c) of the By-law itself; and
b. the approval granted under the National Buildin g Regulations and the
Building Standards Act 103 of 1997 (“the NBR”) and section 4 (4) read with
NBR Regulation A25 (5) itself.
3. The first respondent is directed to alter the sign structure within seven (7) days
of the granting of this Order to bring it in line with the approvals applicable at
the time of the Order, or to remove the sign structure, failing which the applicant
is authorised in terms of section 19 (5) of the By -law to remove the said sign
structure.
4. In terms of section 19 (8) of the By -law, it is directed that any cost incurred by
the City in doing alteration or other works required in terms of compliance
notice to the said sign structure may be recovered from the first and second
respondent, whose liability in this regard is joint and several.
5. The first and the second respondent are to pay the costs of this application and
the counter claim application, on scale C, jointly and severally, one paying the
other to be absolved. Such cost to include the costs of two counsels where so
employed.
_________________________
CN NZIWENI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for Applicant : Advocate J de Waal SC
Instructed by : Fairbridges Wertheim Becker
Counsel for Respondents : Advocate A Botha SC
Instructed by : Smit Sewgoolam Incorporated