CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 36/22
In the matter between:
CITY OF CAPE TOWN Applicant
and
INDEPENDENT OUTDOOR MEDIA
(PTY) LIMITED First Respondent
BODY CORPORATE OF THE OVERBEEK
BUILDING, CAPE TOWN Second Respondent
MINISTER OF TRADE, INDUSTRY
AND COMPETITION Third Respondent
and
OUT OF HOME MEDIA SOUTH AFRICA NPC Amicus Curiae
Neutral citation: City of Cape Town v Independent Outdoor Media (Pty) Ltd and
Others [2023] ZACC 17
Coram: Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J,
Mathopo J, Mbatha AJ, Mhlantla J and Rogers J
Judgment: Mbatha AJ (unanimous)
Heard on: 3 November 2022
Decided on: 23 June 2023
2
Summary: Declaration of constitutional invalidity — Section 29(8) of the
National Building Regulations and Building Standards Act 103
of 1977 — Minister’s supervisory role in making regulations for
matters falling within Part B of Schedule 4 of the Constitution
Section 15 1(2) of the Constitution — Legislative authority of a
municipality vests in the Municipal Council — section 1 56(2) of
the Constitution — a municipality has the power to make and
administer by-laws for the effective administration of matters over
which it has the right to administer — separation of powers
ORDER
On application for confirmation of an order of constitutional invalidity granted by the
High Court of South Africa, Western Cape Division, Cape Town :
1. The order of the High Court declaring section 29(8) of the National
Building Regulations and Building Standards Act 103 of 1977
inconsistent with the Constitution and invalid is confirmed.
2. The first respondent’s purported appeal is struck from the roll.
3. The first respondent must pay the applicant’s costs occasioned by its
purported appeal, including the costs of two counsel.
JUDGMENT
MBATHA AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J,
Mhlantla J and Rogers J concurring ):
MBATHA AJ
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Introduction
[1] This is an application by the City of Cape Town (City) for confirmation of an
order of constitutional invalidity of s ection 29(8) of the National Building Regulations
and Building Standards Act1 (Building Act) granted by the High Court of South Africa,
Western Cape Division, Cape Town. Section 29(8) of the Building Act requires
municipalities to obtain the approval from the relevant Minister before promulgating
by-laws “relat[ing] to the erection of a building” .2 The City’s application for
confirmation is unopposed. In this Court, Independent Outdoor Media (Pty) Ltd (IOM)
served a notice of appeal, purportedly in terms of section 172( 2)(d) of the Constitution.3
IOM’s ostensible appeal is opposed by the City.
The parties
[2] The City, a metropolitan municipality, is the applicant in the confirmation
proceedings and a respondent in the appeal. IOM is a company engaged in the display
and management of advertising signs and spaces on behalf of its clients. IOM is the
first respondent in the confirmation proceedings and the appellant in the appeal. The
second respondent is the Body Corporate of t he Overbeek Building (Overbeek), which
owns the building on which the two advertising spaces relevant to these proceedings
are erected. Overbeek abides the decision of this Court.
1 103 of 1977.
2 Section 29(8) of the Building Act, which is hea ded “[r]epeal of laws” reads:
“(a) A local authority which intends to make any regulation or by -law which relates to the
erection of a building, shall prior to the promulgation thereof submit a draft of the
regulation or by -law in writing and by registered post to the Minister for approval.
(b) A regulation or by -law referred to in paragraph (a) which is promulgated without the
Minister previously having approved of it shall, notwithstanding the fact that the
promulgation is effected in accordance with all other legal provisions relating to the
making and promulgation of the regulation or by -law, be void.”
3 Its grounds of appeal were that the High Court should have specifically addressed the retrospectivity of the order
of invalidity but failed to do so; the High Court incorrectly dismissed its counter -application premised on
section 29(8) of the Building Ac t impugned in the confirmation application; the High Court’s orders flowing from
the declaration of invalidity of section 29(8) were erroneous because the declaration did not make provision for
the validity of the relevant by -law pending this Court’s confi rmation of the order of invalidity; the High Court’s
costs orders in respect of its counter -application and supplementary challenges were incorrect; and the High Court
was incorrect that the relevant sign was not approved in terms of the Building Act.
MBATHA AJ
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[3] The third respondent is the Minister of Trade, Industry and Competition
(Minister), who is responsible for the administration of the Building Act and is
the Minister contemplated in section 29(8). The Minister abides the decision of this
Court but made submissions regarding the interpretation of the Building Act .
[4] Out of Home Media South Africa NPC (OHM SA) was admitted as an amicus
curiae and made written submissions. OHM SA is a non-profit company that represents
the interests of media owners in the outdo or advertising industry. Its members
collectively own and operate approximately 80% of all out door advertising signs in
South Africa.
Background
[5] The applications arise from a dispute relating to two billboards on the Overbeek
Building, a prominent buildi ng on Long Street in Cape Town. In 1999 and 2000,
Overbeek leased two billboards on the building’s facades to IOM. IOM describes the
billboards as follows:
“[T]he physical structure is a galvanised steel frame bolted onto galvanised steel
brackets, set into the plaster and brick of the building’s external walls using 1100 mm
long, 12 mm diameter expanding Rawl bolts. The changeable artwork [is affixed onto]
that.”
It is common cause between the parties that these structures are buildings under the
definition of “building” in the Building Act. 4
4 However, t he Ministe r, as explained later, submits that, in the context of section 29(8) , the word “building”
should be given its ordinary meaning and not the defined meaning. The word “building” is defined in the Building
Act as:
“(a) any other structure w hether temporary or of a permanent nature irrespective of the
materials used in the erection thereof, erected or used in connection with—
(i) the accommodation or convenience of human beings or animals;
(ii) the manufacture, processing, storage, display or sale of any goods ;
(iii) the rendering of any service;
(iv) the destruction or treatment of refuse or other waste materials ;
MBATHA AJ
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[6] The City authorised IOM to use these billboards for a period of five years, in
terms of the by -laws applicable at the time. These a uthorisations lapsed on
3 March 2004 and 5 November 2005 respectively. However, IOM continued to display
advertisements on the building without authorisation from the City.
[7] The City’s enforcement efforts against IOM’s unauthorised display of the
advertisements, which included imposing fines, initiating criminal proceedings a nd
issuing compliance notices, were fruitless . IOM would simply pay the fine or
temporarily remove the advertisements, but the advertising structures would remain in
place in defiance of the City’s enforcement measures, and a new advertisement would
go up.
Litigation history
High Court
[8] In March 2016, the City brought an enforcement application against Overbeek
and IOM for the removal of the advertisements . In March 2021 , Overbeek made an
application in which it sought an order directing IOM to remove the allegedly unlawful
advertisements on its building on the basis that they were not authorised in terms of the
Outdoor Advertising and Signage By -Law, 2001 (Advertising By -Law). The two
applications were consolidated. IOM, in opposing the City’s application , brought a
counter-application for a declaration that the Advertising By -Law is void for
non-compliance with section 29(8) of the Building Act because the City had not
obtained ministerial approval before promulgating the By-Law. IOM contended that
(v) the cultivation or growing of any plant or crop ;
(b) any wall, swimming bath, swimming pool, reservoir or bridge or any other structure
connected therewith ;
(c) any fuel pump or any tank used in connection therewith ;
(d) any part of a building, including a building as defined in paragraph (a), (b) or (c);
(e) any facilities or system, or part or portion thereof, within or outside but incident al to a
building, for the provision of a water supply, drainage, sewerage, stormwater disposal ,
electricity supply or other similar service in respect of the building.”
MBATHA AJ
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outdoor advertising in Cape Town was “completely unregulated”. In response, the City
deployed a collateral defence, arguing that section 29(8) of the Building Act is
constitutionally invalid. After engaging with the Minister in the spi rit of cooperative
governance, the City joined the Minister to the proceeding s and launched a direct
constitutional challenge to section 29(8) of the Building Act. The direct challenge ,
which was unopposed, displaced the collateral defence.
[9] The Minister did not oppose the constitutional challenge, but made submissions
on the interpretation of the provision and argued that, if his interpretation was correct,
the facts of the case did not warrant a declaration of constitutional invalidity.
The Minister pursued the same argument in this Court, but did not oppose the
confirmation application.
[10] The High Court held that section 29(8) of the Building Act is constitutionally
invalid and, consequently, dismissed IOM’s counter -application to declare the
Advertising By -Law void for non -compliance with section 29(8). It reasoned that
section 29(8) violates the independent and exclusive legislative authority of
municipalities by requiring the Minister’s approval before a by -law that “relates to the
erection of a building” may be validly promulgated, 5 and that section 29(8) violates the
mutual respect provisions in the Constitution that require each sphere of government to
respect the constitutional status of the other spheres. 6
[11] The High Court held that municipal auto nomy ensured by the mutual respect
provisions in the Constitution must inform the interpretation of municipal powers 7 and
5 Body Corporate of the Overbeek Building, Cape Town v Independent Outdoor Media (Pty) Ltd 2022 (4) SA 167
(WCC) (High Court judgment) at para 21.
6 Id at para 22. See for example section 41(1)(e) and (g) of the Constitution . Section 41(1)(e) reads: “All spheres
of government and all organs of state within each sphere must respect the constitutional status, institutions, powers
and functions of government in the other spheres”. Section 41(1)(g) reads: “All spheres of government and all
organs of state within each sphere must not assume any power or function except those conferred on th em in terms
of the Constitution .”
7 Id at para 24.
MBATHA AJ
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it endorsed the City’s argument that the effect of section 29(8) is to grant the Minister
a constitutionally impermissible veto power over by-laws that relate “to the erection of
a building”.8
[12] The High Court reasoned that, although Parliament may legislate on “building
regulations” because it is a Schedule 4 functional area, 9 these powers are limited in
nature and cannot be interpreted as concurrent with municipal legislative powers.10 The
national government may only regulate a municipality’s executive authority, not its
legislative authority. 11 It held that the national government’s powers are limited , in
relation to municipalities, to a “monitoring, supervising and support function”. 12
Section 29(8) exceeds this function and was accordingly constitutionally invalid. 13
[13] In respect of the separation of powers, the High Court held that the Minister’s
veto power “imposes a different legisla tive process and a different legislator from that
8 Id at para 25.
9 Section 44(1)(a)(ii) of the Constitution reads:
“The national legislative authority as vested in Parliament confers on the National Assembly the
power to pass legislation with regard to any matter, including a matter within a functional area
listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area
listed in Schedule 5”.
10 High Court judgment above n 5 at para 26.
11 Id at para 27. S ection 155(7) of the Constitution reads: “The national government, subject to section 44, and
the provincial governments have the legislative and executive authority to see to the effective performance by
municipalities of their functions in respect of matters listed in S chedules 4 and 5, by regulating the exercise by
municipalities of their executive authority referred to in section 156(1) ”.
12 Id at para 28.
13 Id at paras 29-30.
MBATHA AJ
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which is constitutionally envisioned”. 14 This was held to be contrary to the scheme set
out in section s 43(c),15 151(4) ,16 and 160(2)(a) 17 of the Constitution.18
[14] Although it is not in issue in this case, th e High Court noted that section 29(8)
creates the possibility that the Minist er will have veto power over by -laws covering
functional areas of exclusive municipal competence. 19 Further, citing Tasima, the
High Court held that, by giving the Minister the ability to determine the validity of
by-laws, section 29(8) unconstitutionally ousts the courts’ role as the “sole arbiters of
legality”.20
[15] The High Court rejected the Minister’s argument that billboards and publ ic
advertisements are not covered by section 29(8), instead preferring the i nterpretation of
the High Court in SAPOA21 and Independent Outdoor Media (Pty) Ltd .22 It reasoned
that, in any event, interpreting section 29(8) so that it does not apply to billboa rds and
public advertising is unhelpful because the provision will “jeopardise [the City’s]
current and future law -making, as well as a number of other by -laws of other
municipalities, countrywide” in spheres other than public advertising that “relate to t he
14 Id at para 31.
15 Section 43(c) of the Constitution provides that “the legislative authority of the local sphere of government i s
vested in the Municipal Councils, as set out in section 156.”
16 Section 151(4) of the Constitution provides that “[t]he national or a provincial government may not compromise
or impede a municipality’s ability or right to exercise its powers or perform its functions .”
17 Section 160(2)(a) of the Constitution provides that “a Municipal Council may not de legate the passing of by -
laws.”
18 Id at para 31 fn 16.
19 Id at para 33. Schedule 5 Part B of the Constitution .
20 Id at para 32. See Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC) ;
2017 (1) BCLR 1 (CC) at para 147.
21 South African Property Owne rs Association v City of Johannesbur g Metropolitan Municipality unreported
judgment of the High Court of South Africa, Gauteng Local Division, Johannesburg, Case No 19656/18, undated
at para 63.
22 High Court judgment above n 5 at para 34. See City of Cape Town v Independent Outdoor Media (Pty) Ltd
unreported judgment of the High Court of South Africa, Western Cape Division, Cape Town, Case No
A9346/2009, 23 December 2011.
MBATHA AJ
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erection of a building”. 23 The High Court further rejected the contention that the
doctrine of avoidance found application in this matter and held that it only applies if the
dispute is “capable of being decided differently in its entirety”. 24 The High Court
commented that, if the constitutional validity of section 29(8) was not decided, the
validity of a number of municipal by -laws would be uncertain.25
[16] Consequently, the High Court dismissed IOM’s counter -application and
supplementary challenges. The H igh Court also ordered that the impugned
advertisements, which were unauthorised under the Building Act and the Advertising
By-Law, be removed. IOM was ordered to pay the City’s costs in relation to the
counter-application and the supplementary challenges to the lawfulness of the
Advertising By-Law.26 IOM appeals these costs orders in this Court.
Proceedings in this Court
[17] These are confirmation proceedings in terms of s ection 167(5) of the
Constitution. The order to be confirmed is the High Court’s declaration of
constitutional invalidity of section 29(8) of the Building Act . In terms of
section 172(2)( d) read with section 167(5) of the Constitution, this Court must make the
final decision and confirm any order of constitutional invalidity made by the High Court
before that order has any force or effect.
[18] In respect of the appeal , section 172(2)(d) of the Constitution provides that
“[a]ny person or organ of state with a sufficient interest may appeal, or apply, directly
to the Constitutional Court to confirm or vary an order of constitutional invalidity”. To
the extent that IOM’s appeal arises from the High Court’s order of constitutional
invalidity, it is properly before this Court . Therefore, those elements relating to IOM’s
23 High Court judgment id at para 36.
24 Id at para 40.
25 Id at p ara 42.
26 The supplementary challenges repeated arguments that had been previously dismissed by the Supreme Court
of Appeal in Independent Outdoor Media v City of Cape Town [2013] ZASCA 46; [2013] 2 All SA 679 (SCA).
MBATHA AJ
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counter-application and supplementary challenges, for example, which are discrete
from the confirmation orders , should have been brought by means of an application for
leave to appeal. Those elements are not properly before this Court.
City of Cape Town ’s submissions
[19] The City submits that section 29(8) is unconstitutional for several reasons . First,
it infringes on the legislative autonomy of municipalities, as it impedes a municipality’s
ability and right to exercise the legislative powers assigned to it in Schedule 4 Part B
and Schedule 5 Part B of the Constitution by requiring prior ministeria l approval for the
making of by-laws regarding “the erection of a building”.
[20] Second, the Building Act is old-order legislation passed during the era of
parliamentary sovereignty and fails to recognise that Parliament has limited authority
in matters relating to building regulations under the constitutional order . Parli ament
can only play a supportive role but has no power to regulate the passing of municipal
legislation.
[21] Third, t he City submits that s ection 29(8) infringes upon the doctrine of
separation of powers because the making of by-laws falls exclusively within the terrain
of municipal councils. However, s ection 29(8) empowers the Minister to veto
municipal legislation and replaces a legislature with an executive functionary in a
different sphere of government.
[22] Fourth, the City contends that Parliament is not c ompetent to legislate in respect
of a Schedule 5 functional area . The relevant functional area, the City argues, is
“billboards and the display of advertisements in public places”, which is the subject of
the Advertising By-Law. Section 44(1)(a)(ii) of t he Constitution empowers Parliament
to legislate on any matter , excluding a matter within a functional area listed in
Schedule 5.
MBATHA AJ
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[23] Fifth, s ection 29(8) usurps the powers of the courts in that it provides that a
by-law which does not comply with its terms is void. The City argues that o nly a court
of law has the constitutional authority to declare an exercise of public power invalid
and determine the consequences of invalidity, including whether it is void .
[24] Lastly, section 29(8) applies in respect of any by-law that “relates to the erection
of a building”. It is of wide application and incorporates many municipal competencies
which relate to the erection of a building, including “billboards and the display of
advertisements in public places” , “amusement facilities” , “facilities for the
accommodation, care and burial of animals”, “fencing”, “local amenities” and
“municipal abattoirs” . This does not only affect the City but impacts negatively on all
municipalities with by-laws containing provisions that “relate to the erection of a
building”.27
Minister ’s submissions
[25] The Minister does not oppose the confirmation proceedings. However, he
submitted an explanatory affidavit in which he argued that s ection 29(8) can be
interpreted in such a way that a constitutional challenge is not necessary on the facts of
this case.
[26] The Minister is of the view that the High Court did not engage in the
interpretative exercise to determine whether the Building Act, correct ly interpreted,
applies to the City’s by-law in respect of “billboards and the display of advertisements
in public places”. The Minister submits that the facts of this case do not warrant a
declaration of constitutional invalidity.
[27] The Building Act , contends the Minister, is intended to promote uniformity in
the law relating to the erection of buildings in municipalities across the country. He
27 In the City of Cape Town alone, these include the Community Fire Safety By -Law, 2002 and the Coastal
By-Law, 2020.
MBATHA AJ
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submits that the Act (and specifically section 29(8)) does not apply to “billboards and
the display of adv ertisements in public spaces” and, therefore, does not encroach on
municipalities’ Schedule 5 Part B competence. The Minister submits that s ection 29(8)
is only constitutionally offensive if a billboard or outdoor advertisement signage is a
“building” for the purposes of the Act. The Minister concedes that if section 29(8)
applies to the Advertising By -Law, the section would be non -compliant with th e
Constitution.
[28] The Minister argues that where a court can avoid declaring national legislation
inconsistent with an exclusive municipal competence, it should do so by reading the
provisions harmoniously and purposively. He argues that there is no confli ct between
the Building Act and the Advertising By -Law because the purpose of the Act is to
regulate buildings, which do not include billboards and advertisements in public spaces.
[29] On remedy, the Minister argues that there is no need for an order regulati ng
retrospectivity because Parliament is in the process of drafting new legislation to
regulate building norms and standards that will be scrutinised for constitutional
compliance in the parliamentary process. The Minister also submits that the order need
not be suspended.
The City’s response to the Minister
[30] In response to the Minister’s arguments on interpretation, the City submits that
the proposed interpretation does not address any of the grounds of constitutional
invalidity beyond the Schedule 5 Part B argument and even then it does so only in
respect of one by-law (i.e. the Advertising By -Law). The suggested interpretation does
not cure any of the following defects: (a) infringement on municipalities’ power to
legislate autonomously; (b) exceeding Parliament’s competence; (c) infringement of the
separation of powers; (d) infringement of th e powers of the courts; and
(e) impermissible regulation of Schedule 5 Part B matters other than “billboards and the
display of advertisements in public spaces ”. The City submits that section 29(8) is “too
extensively riddled with constitutional invalidity to be saved by a restrictiv e
MBATHA AJ
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interpretation”. It argues further that the doctrine of constitutional avoidance, on which
the Minister’s argument is based, is no longer part of our law. 28 The City points out
that its direct constitutional challenge was made not only in respect of the Advertising
By-Law, but concerned section 29(8) , to the extent that it affects all by-laws relating to
the “erection of a building”.
IOM’s submissions
[31] IOM’s main contention in support of its purported appeal in terms of section
172(2)(d) is that the High Court failed to determine whether the declaration of invalidity
of section 29 (8) of the Building Act was retrospective and , if so, to what extent.
Therefore, IOM submits that the declaration is not retrospective and that, for this reason,
the Advertising By -Law remains void for fail ure to comply with section 29(8 ) of the
Act. In other words, in the absence of retrospective i nvalidation, section 29(8) was in
force at the time the Advertising By -Law was enacted, and non -compliance with
section 29(8) thus invalidated the By -Law.
[32] IOM also argues that, because the High Court’s order of constitu tional invalidity
has no force or effect until confirmed by this Court, the High Court was wrong in two
respects. First, the High Court incorrectly dismissed its counter-application, which was
premised on the fact that the Advertising By-Law remains void until this Court confirms
the declar ation of constitutional invalidity with retrospective effect. Second, the
High Court should not have granted the order declaring IOM’s signage unlawful and
directing IOM to remove it. IOM submits that in order to keep the Advertising By-Law
alive, a suspended order of invalidity should have been made and the removal order
should have been granted as temporary relief .
[33] IOM also takes issue with the fact that the High Court ordered it to pay the City’s
costs in respect of its failed counter -application and supplementary challenge s.
28 Jordaan v Tshwane Metropolitan Municipality [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370
(CC).
MBATHA AJ
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It contends that the counter -application and supplementary challenges were
constitutional in nature and thus, according to Biowatch, each party should bear its own
costs.29 It submits further that the High Court ought to have found that the signage had
been approved as required under the Building Act and, thus, no order for it s removal
was warranted.
[34] In addition, IOM submits that the impact of the retrospectivity of the order
should be limited in respect of criminal liability . It does not object that section 29(8),
if confirmed to be invalid, should be invalid retrospectively from 4 February 1997, the
date that the Constitution came into force , provided that the Advertising By -Law is not
applied in criminal proceedings. IOM argues that it should not bear the adverse criminal
consequences of an ambiguity created by the legislative scheme. IOM’s argument is
that, until now, the Advertising By -Law has been invalid due to non -compliance with
section 29(8). If section 29(8) is d eclared invalid with retrospective effect, the
Advertising By -Law will acquire retrospective validity. In the absence of some
qualification, this will expose IOM and similarly placed advertisers to criminal liability
for failure to comply in the past with the retrospectively validated Advertising By -Law.
On this aspect, they are supported by the amicus curiae, OHMSA.
The City’s response to IOM
[35] Though the City pointed out that the appeal was not properly before this Court ,
it made submissions in response to IOM. The City argues that there is no basis for the
contention that the Advertising By -Law should not be applied in criminal proceedings
pending at the date of the order. It submits that the criminal sanctions in the Advertising
By-Law are constitutionally valid and serve an important public function. The City
submits that if IOM wished the High Court to depart from the default position on
retrospectivity, it should have adduced evidence in support of such a prayer. IOM did
not do this. The City ar gues that the present proceedings are not concerned with
29 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10) BCLR
1014 (CC).
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reviving the Advertising By-Law, but recognising that it has always had legal force
because it was never voided by section 29(8). It argues that the declaration of invalidity
should be given its ordinary legal effect, in accordance with the doctrine of objective
constitutional invalidity, namely, that it be declared invalid from 4 February 1997,
when the Constitution came into force.
OHMSA’s submiss ions
[36] OHMSA accepts that section 29(8) is constitutionally invalid. Like IOM,
OHMSA submits that its members have arranged their affairs on the basis that various
by-laws regulating outdoor advertising acros s the country were void for
non-compliance with s ection 29(8). As a result, they submit that the declaration of
invalidity should be suspended to enable outdoor advertisers to regularise their
activities. Regarding the retrospective effect of the order of invalidity, OHMSA
submits that the by -laws were void at the time they were promulgated and cannot be
made valid by an order of constitutional inv alidity of section 29(8).
[37] OHMSA argues that it has, for a long time, taken the position that outdoor
advertising by-laws across the country are void due to the lack of ministerial approval ,
as required by section 29(8). Thus, it s members have not been applying for various
approvals required in terms of those by-laws. It argues that, if this Court confirms the
High Court’s order, with the declaration of inva lidity taking immediate effect and
applying retrospectively, it will validate a by-law that was previously void, leaving
outdoor advertisers in a position of not having the approvals required in terms of the
Advertising By-Law. This will render their advertising structures immediately illegal,
opening them up to criminal prosecution and severely hampering their ability to
continue doing business.
[38] OHMSA also submits that the entire Building Act is unconstitutional because its
subject matter is a Schedu le 4 Part B functional area (“building regulations”) . These
submissions are beyond the scope of the present application.
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[39] OHMSA argues that the High Court did not take cognisance of the consequences
of a finding that section 29(8) is constitutionally inva lid for those in the industry.
According to OHMSA, an order of this kind requires a remedy that provides time for
parties to arrange their affairs as a consequence of the finding – for example, a
suspension of the declaration of invalidity for a period of time and a limitation on the
retrospective effect of the declaration.
[40] OHMSA submits that the finding of constitutional invalidity should be
confirmed, but that the matter must be referred back to the High Court with guidelines
from this Court as to what should be taken into account in order for the High Court to
consider the appropriate remedy. They contend that an order limiting the retrospectivity
of the declaration of invalidity needs to be carefully crafted to ensure there is no period
in which the industry at large would operate without regulation.
[41] The City’s response to OHMSA’s submissions is similar to its response to IOM.
It is superfluous to restate that response.
Issues
[42] Three issues arise for this Court’s determination :
(a) Should the order of in validity be confirmed?
(b) Is the Minister’s interpretation of s ection 29(8) of the Building Act
correct? If so, does this preclude this Court from considering the validity
of section 29(8) ?
(c) Lastly, what is the appropriate remedy in the event that the order of
invalidity is confirmed ?
The legal framework
[43] Section 151(2) of the Constitution v ests the executive and legislative authority
of a municipality in its Municipal Council. The powers and functions of a municipality
MBATHA AJ
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are regulated by the provisions of sec tion 156 of the Constitution , which provides as
follows:
“(1) A municipality has executive authority in respect of, and has the right to
administer–
(a) the local government matters listed in Part B of Schedule 4 and Part B
of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by -laws for the effective
administration of the matters which it has the right to administer.
(3) Subject to section 151(4), a by -law that conflicts with national or provincial
legislation is invalid. If there is a conflict between a by-law and national or
provincial legislation that is in operative because of a conflict referred to in
section 149, the by-law must be regarded as valid for a long as that legislation
is inoperative.
(4) The national government and provincial government s must assign to a
municipality, by agreement and subject to any conditions, the administration
of a matter listed in Part A of Schedule 4 or Part A of S chedule 5 which
necessarily relates to local government, if–
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of its
functions.”
[44] Section 156 (2) provides that a municipality may make and administer by -laws
for the effective administration of the matter s which it has the right to administer.
Section 160(1)(a) of the Constitution empowers a Municipal Council to make decisions
concerning the exercise of all the powers and the performance of all the functions of the
municipality.
[45] In considering the impugned provision, one needs to consider the empowerin g
provisions of s ection 43(c) of the Constitution , which provides that the legislative
authority of the local sphere of government is vested in the Municipal Councils, as set
MBATHA AJ
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out in section 156. This entitlement connotes a regulatory and policy -making role more
than a mere authority to administer and implement prescripts. 30 This position was
confirmed by this Court in Fedsure , where it was held that municipal councils are
deliberative, legislative assemblies with constitutionally guaranteed legislative
powers.31
[46] Notwithstanding the powers outlined above , municipal authority is not
boundless. A m unicipality’s right to govern is subject to n ational and provincial
legislation.32 The responsibility to ensure that municipalities adequately perform their
functions inheres in the national and provincial spheres .33 Subject to section 151(4) of
the Constitution, b y-laws that conflict with national o r provincial legislation are
invalid.34 In respect of original legislative powers, municipalities are only competent
to legislate on those areas enumerated in Part B of Schedule 4 and 5, save where national
or provincial legislation devolves additional legislative competence to local
government.35
[47] National and provincial governments are not authorised to legislate for the
minutiae of Part B of Schedule 4 and 5 competencies but are instead limited to enacting
minimum standards and frameworks for municipa l legislating and enabling the
monitoring of municipal functions ( that is, a hands-off or indirect governing role). In
30 Steytler and de Visser “Local Government” in Constitutional Law of South Africa Service 1(2007) at 44.
31 Fedsure Life Assurance Ltd. v Greater Johannesburg Tran sitional Metropolitan Council [1998] ZACC 17;
199 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 26.
32 Section 151(3) of the Constitution provides : “A municipality has the right to govern, on its own initiative, the
local government affairs of its community, subject to national and provincial legislation, as provided for in the
Constitution. ”
33 Section 155(7) of the Constitution reads: “The national gov ernment, subject to section 44, and the provincial
governments have the legislative and executive authority to see to the effective performance by municipalities of
their functions in respect of matters listed in Schedules 4 and 5, by regulating the exerci se by municipalities of
their executive authority referred to in section 156(1)”.
34 Section 151(4) of the Constitution provides: “ The national or a provincial government may not compromise or
impede a municipality’s ability or right to exercise its powers or perform its functions .”
35 Part B of Schedules 4 and 5 read with sections 155(6) and 156, reveal the following: Schedule 4 Part B
enumerates competencies shared by national, provincial and lo cal spheres of government; and S chedule 5 Part B
lists competencies vesting jointly in the provincial and local spheres .
MBATHA AJ
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Premier, Western Cape , this Court stated that “[l]ocal governments have legislative and
executive authority in respect of certain matters but national and provincial legislatures
both have competences . . . for overseeing its functioning”.36
Constitutionality of section 29(8)
[48] Section 29(8) overshoots the national government’s supervisory role. Exercising
a veto or being empowered to block legislation not only interposes the Minister into the
legislative process, but also gives the Minister authority over the minutia e of local
government competencies – something this Court has determined to be reserved for
municipalities. That is a far cry from a “broad managing or controlling rather than direct
authorisation function ”.37 None of the parties dispute that s ection 29(8) is
unconstitutional.
[49] On a proper reading , section 29(8) usurps the powers of the municipality to
exercise its original legislative powers by requiring that prior ministerial approval is
given for the making of by-laws relating to the erection of a building. Parliament has
no power to cross this constitutional boundary as the exercise of such powers by the
municipality is not delegated legislation. Section 29(8) goes even further to state that a
by-law which does not comply with its terms is void.
[50] In the light of the aforemention ed constitutional provisions, section 29(8)
encroaches on the sacrosanct functional areas in Schedule 5 Part B of the Constitution,
which are the preserve of a municipal coun cil insofar as those functional areas relate to
the erection of a building . Parliament is barred from legislating Schedule 5 matter s,
except in certain exceptional circumstances. The impugned se ction 29(8) provision
displays the typical traits of old-order legislation which are reflective of an era in which
legislative powers were cen tralised to Parliament. Municipalities have original
36 Premier, Western Cape v President of the Republic of South Africa [1999] ZACC 2; 1999 (3) SA 657 (CC);
1999 (4) BCLR 382 (CC) at para 51 (emphasis added ).
37 Ex Parte Chairperson of the Con stitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa, 1996 [1996] ZACC 26; 1996 (4) 744 (CC), 1996 (10) BCLR 1253 (CC) at para 377.
MBATHA AJ
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legislative competence to make and administer by -laws on matters listed in Part B of
Schedule 4 and 5 of the Constitution. Sections 43(c), 151( 2) and 156(1)(a) of
the Constitution support this position. It is impermissible for the Minister to legislate,
control and veto legislation that is the sole preserve of the Municipal Councils.
[51] The scenario envisaged in section 29(8) infringes the doctrine of separation of
powers, as it gives the Ministe r powers relating to the legislative process – the
Minister’s approval is a necessary component for enacting a by-law that “relates to the
erection of a building”. It is impermissible for one arm of government to exercise the
powers of another sphere of g overnment. Executive Council held that the legislature
may delegate the power to make regulations. 38 However, it emphasised the distinction
between delegation of authority to make subordinate legislation within the framework
of the statute and assigning p lenary power to another body. 39
[52] A municipality enjoys constitutio nally entrenched powers in a co -operative
government in terms of section 151(4) of the Constitution. The national and provincial
spheres of government may not intrude on its terrain. This Court affirmed this position
in Robertson :
“The Constitution has moved away from a hierarchical division of governmental power
and has ushered in a new vision of government in which the sphere of local government
is interdependent, ‘inviolable and possesses the constitutional latitude within which to
define and express its unique character ’ subject to constraints perm issible under
our Constitution. A municipality under the Constitution is not a mere creature of statute
otherwise moribund save if imbued with power by provincial or national legislation. A
municipality enjoys ‘original’ and constitutionally entrenched powers, functions, rights
and duties that may be qualified or constrained by law and only to the e xtent the
Constitution permits. Now the conduct of a municipality is not always invalid only for
38 Executive Council of the Western Cape Legislature v President of the Republic of South Africa [1995] ZACC 8;
1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC) at para 51.
39 Id.
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the reason that no legislation authorises it. Its power may derive from the Constitution
or from legislation of a competent authority or from its own laws.”40
The Minister’s interpretation
[53] The single jurisdictional requirement of section 29(8) – “erection of a
building” – brings the Advertising By -Law within the ambit of the Building Act. The
Minister accepts that, if section 29(8) of the Act applies to the Advertising By-Law, the
provision would be non-compliant with the Constitution. The Minister also accepts that
the billboards fall within the definition of “building” in the Building Act. 41 However,
the Minister argues that section 29(8) can be interpreted in a constitutionally compliant
manner by giving the word “building” in section 29(8) its ordinary grammatical
meaning and not the technical and broad meaning of the word “building” as defined in
the Building Act.
[54] However, even if the restrictive interpretation advocated for by the Minister was
correct (and this is most doubtful), it does not prevent the infringement of municipal
powers to legislate autonomously, the infringement of the separation of powers and the
encroachment on Schedule 5 Part B functional areas in spheres others than advertisi ng
signage. The mischief still remains. The purpose of the Building Act is to regulate the
erection of buildings in municipalities across the spectrum. Its impact is felt beyond
the ere ction of billboards and display of advertisements.
40 City of Cape Town v Robertson [2004] ZACC 21; 2005 (2) SA 323 (CC) at para 60.
41 In City of Cape Town v Independent Outdoor Media above n 19 the High Court held at para 17 that —
“the connection between a sign erected and used to advertise goods or services to the public is
sufficiently close for it to be said that such sign is ‘erected or used for or in connection with the
display or sale of the goods or the rende ring of any service’, within the extended definition of
‘building’ in the Building Act .”
In SAPOA, above n 18, the High Court commented that large advertising signs affixed to the tops or sides of tall
structures are buildings for the purposes of the Act. Billboards as described by IOM are so firmly affixed to the
exterior walls of the building that they could be regarded as “part of the building” for purposes of the definition.
However, and because it is not in dispute in this case that the billboard str uctures are “buildings” as contemplated
in the Building Act, it is unnecessary to determine the precise basis on which this is so.
MBATHA AJ
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[55] The applicability of section 29(8) to advertising signs has no bearing on its
constitutionality. The City launched a direct challenge to section 29(8) to the extent
that it impacts all by-laws that relate to the “erection of a building”, and not only in
relation to the Advertising By -Law. The Minister contends that his interpretation is
“dispositive of the constitutional harm”. The interpretation argument misses all of the
grounds of unconstitutionality advanced by the City , save for the argument that
section 29(8) unconstitutionally encroaches on the Schedule 5 Part B functional area of
“[b]illboards and the display of advertisements in public places” . The Minister ’s
argument fails to appreciate that section 29(8) deprives municipalities of their
legislative autonomy in respect of all by-laws that relate to the erection of a building.
[56] The High Court correctly acknowledged the inadequacy of the Minister’s
proposed interpretation as follows:
“[T]his approach helps little because the result would be that an unconstitutional law
would simply be allowed to rem ain in force with potential far -reaching and harmful
consequences for municipal governance. . . . The interpretation chartered for by the
[Minister] does not decide all the constitutional issues raised by the [City].”42
[57] The Minister’s submission that the declaration of invalidity was not the primary
relief sought by the City is incorrect. When the City’s direct challenge was launched,
it was clear that the challenge was not limited to the Advertising By -Law but also
concerned the extent of s ection 29(8) ’s impact on all by-laws that relate to the erection
of a building. The Minister’s interpretation does not save the unconstitutional
provisions of the Building Act. It remains constitutionally offensive.
IOM’s notice of appeal
[58] IOM filed a notice of appeal in terms of s ection 172(2) (d) of the Constitution.
The City objected to it on the basis that the appeal was not properly before this Court,
among others, because IOM had not sought leave to appeal directly to this Court.
42 High Court judgment above n 5 paras 39 -40.
MBATHA AJ
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Furthermore, the issues raised by IOM as grounds of appeal do not fall within the scope
of section 172(2)(d). The provisions of section 172(2)(d) only apply to the confirmation
or variation of an order of constitutional invalidity. The submission by counsel for IOM
that section 172(2)(d) is of wider application is incorrect. The arguments relating to the
demolition order and other order s that IOM purported to appeal cannot be entertained
without IOM having sought leave to appeal. Counsel for IOM grudgingly conceded
that the purported appeal was not before this Court. Consequently, the purported appeal
should be struck off the roll.
Remedy
[59] In line with the doctrine of objective constitutional invalidity, section 29(8) was
invalid from the date that the Constitution came into effect. This Court explained the
doctrine as follows:
“In the context of declaring a statutory provision invalid for its inconsistency with a
constitution that means that the declaration proclaims the finding that the inconsistency
exists. It also means that the inconsistency is proclaimed to have arisen and subsisted
since first it arose. Thus, in the case of an inconsistent statute antedating
the Constitution, the inconsistency arose on 4 February 1997, when the Constitution
came into force and its norms were superimposed on the existing legal system. If a
statute enacted after the inception of the Constitution is found to be inconsistent, the
inconsistency will date back to the date on which the statute came into operation in the
face of the inconsistent constitutional norms. As a matter of law, therefore, an order
declaring a provision in a statute such as that in question here invalid by reason of its
inconsistency with the Constitution, automatically operates retrospectively to the date
of inception of the Constitution. As will be shown in the next two paragraphs, however,
courts are given the power to qual ify this effect of their orders of invalidation.” 43
(Emphasis added.)
43 Ex parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Lo cal Council [2001] ZACC 2;
2001 (4) SA 1288 (CC) at para 11.
MBATHA AJ
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[60] The retrospective effect of the constitutional invalidity of section 29(8) is
necessary for the validity of various by-laws that enable municipal governance .
However, unqualified retro spective effect gives rise to unfair criminal consequences.
[61] Section 172(1)(b) provides that a court may make a just and equitable order to
accommodate potentially harsh effects of the operation of the doctrine of objective
constitutional invalidity. This was the approach taken by this Court in Walters .44
Walters involved a constitutional challenge to a provision of the Criminal
Procedure Act45 that permitted the use of force, including lethal force, in making an
arrest. Although in law, conduct that was justifiable under the impugned provision was
criminal at the time of commission by operation of the doctrine of objective invalidity,
an unqualified striking down “in effect retrospectively criminalise[s] conduct that was
not punishable at the time it was committed”.46 The Court struck down the part of the
provision that justified the use of lethal force in making an arrest, subject to the
qualification that the str iking down is prospective only.
[62] However, we need not resort to section 172(1)(b). The doctr ine of objective
constitutional invalidity should be interpreted harmoniously with the Constitution as a
whole. Section 35(3)(l) of the Constitution guarantees the right of an accused person
“not to be convicted for an act or omission that was not an offe nce under either national
or international law at the time it was committed” . In Savoi , this Court held that the
interpretation of section 35(3)(l) must be informed by the right’s rationale. 47 The
purpose of the rule against retrospectivity in respect of criminal liability is to enable the
public to arrange their behaviour so as to avoid falling foul of a criminal proscript .48
44 Ex Parte Minister of Safety and Security: In Re S v Walters [2002] ZACC 6; 2002 (4) SA 613 (CC); 2002 (7)
BCLR 663 (CC) ( Walters).
45 51 of 1977.
46 Walters above n 41 at para 74 (emphasis added ).
47 Savoi v National Director of Public Prosecutions [2014] ZACC 5; 2014 (5) SA 317 (CC); 2014 (5) BCLR
606 (CC) at para 75.
48 Id.
MBATHA AJ
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The retrospectivity occasioned by the doctrine of objective constitutional validity,
therefore, cannot include retrospective crimin al consequences.
[63] Further, unlike in Walters , limiting the retrospective effect of the invalidity in
totality is not tenable in this case. The effect of a wholesale limitation on retrospectivity
is that section 29(8) would have been valid in the period between the Constitution
coming into effect and the order of invalidity and, therefore, would have the effect of
voiding a raft of by -laws ac ross the country that relate to “the erection of a building”
for want of ministerial approval. I place no qualification on the retrospective effect of
the order of invalidity because the operation of the doctrine of constitutional invalidity
cannot retros pectively create crimes in the face of section 35(3)(l) of the Constitution.
[64] In respect of suspension, it is clear from IOM and OHMSA’s submissions that a
number of outdoor advertisers, throughout the country, have been flouting various
outdoor advertising by -laws. Suspension is typically ordered to avoid disruption of a
legal system. 49 In J v Director General, Department of Home Affairs , this Court said
that, when contemplating suspension, “the Court must consider, on the one hand, the
interests of the s uccessful litigant in obtaining immediate constitutional relief and, on
the other, the potential disruption of the administration of justice that would be caused
by the lacuna”.50 The immediate effect of the order of constitutional invalidity , in this
case, is not of such a destabilising nature as to require this Court to limit the prospective
effect of its order. As is evident from OHMSA’s participation in this matter, outdoor
advertisers are aware of the developments surrounding the constitutionality of
section 29(8) of the Building Act and are in a position to act to regularise their conduct
soon after this judgment is handed down. If a short time must inevitably pass from the
date of this order until outdoor advertisers are able to regularise their pos itions, the
authorities will no doubt bear in mind the maxim that the law does not compel the
impossible.
49 Bishop “Remedies” in Woolman et al (eds) Constitutional Law of South Africa Service 5 (2013) at 113.
50 J v Director General , Department of Home Affairs [2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR
463 (CC) at para 21.
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Costs
[65] In respect of the confirmation proceedings in this Court , there is no order as to
costs, since the challenge was not opposed by any parties. In respect of the appeal, IOM
is ordered to pay the City’s costs because its appeal was not properly before this Court .
IOM did not, as it should have, apply for leave to appeal the High Court’s orders based
on non -compliance with the Building Act or the High C ourt’s dismissal of its
counter-application or the cos ts order made by the High Court in respect of the
counter-application. Those purported appeals were not covered by the automatic right
of appeal conferred by section 172(2)(d) of the Constitution. IOM is not entitled to
Biowatch protection – it raised no constitutional issues .
Order
[66] The following order is made:
1. The order of the High Court declaring section 29(8) of the National
Building Regulations and Building Standards Act 103 of 1977
inconsistent with the Constitution and invalid is confirmed.
2. The first respondent’s purported appeal is struck from the roll.
3. The first respondent must pay the applicant’s costs occasioned by its
purported appeal, including the costs of two counsel .
For the Applicant:
For the First Respondent:
For the Third Respondent:
For the Amicus Curiae:
R Paschke SC and A Pillay instructed by
QJ Williams & Associates Incorporated
Attorneys
H J de Waal SC instructed by Ashersons
Attorneys
I Jamie SC and K Perumalsamy
instructed by State Attorney,
Cape Town
A C Botha SC and W Krog instructed by
Smit Sewgoolam Incorporated