Ethekwini Municipality v Swish Property Eight (Pty) Ltd (1071/2012) [2013] ZAKZDHC 15 (29 April 2013)

Ethekwini Municipality v Swish Property Eight (Pty) Ltd (1071/2012) [2013] ZAKZDHC 15 (29 April 2013)

The court found that the respondents erected advertising signage and related structures without the applicant's authority, in contravention of the applicant's advertising bylaws. The bylaws validly require written permission and the payment of prescribed fees for such signage. The respondents' constitutional...

Source-derived case information.

Citation
[2013] ZAKZDHC 15
Parties
Applicant: eThekwini Municipality; Respondent: Swish Property Eight (Pty) Ltd; Respondent: Wideopen Platform (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
29 April 2013
Case Number
1071/2012
Procedural Posture
Urgent Application / Opposed Application for Interdictory and Mandatory Relief
Outcome
Application granted. Mandatory and interdictory relief awarded in favour of the applicant.
Judges
Vahed
Legal Topics
Municipal Bylaws, Outdoor Advertising Regulation, Commercial Speech, Section 36 Limitation, Removal of Structures, Interdictory Relief
Administrative Law Constitutional Law Land and Property Municipal Bylaws Outdoor Advertising Regulation Commercial Speech Section 36 Limitation Removal of Structures +1 more

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Parties

eThekwini Municipality

Applicant

Swish Property Eight (Pty) Ltd

Respondent

Wideopen Platform (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Opposed Application for Interdictory and Mandatory Relief

Legal Issues

  1. 1 Whether the respondents' advertising signage and structures were erected without the applicant's authority.
  2. 2 Whether the applicant's advertising bylaws validly regulate the erection of outdoor advertising signage.
  3. 3 Whether the bylaws unlawfully limit the respondents' right to freedom of commercial expression under the Constitution.

Ratio Decidendi

The court found that the respondents erected advertising signage and related structures without the applicant's authority, in contravention of the applicant's advertising bylaws. The bylaws validly require written permission and the payment of prescribed fees for such signage. The respondents' constitutional challenge was not substantiated by evidence of the actual impact of the fees on their means or the revenue generated by the signage. The court distinguished the present case from Dawood, as the bylaws themselves do not prescribe the quantum of fees, which are set by regulation. The respondents failed to make out a genuine case that the fees were prohibitive or that their rights were...

Court Disposition

Application granted. Mandatory and interdictory relief awarded in favour of the applicant.

Orders

  • The first and second respondents are directed to forthwith remove all outdoor advertising signs and supporting structures erected and installed at the property located at 37 Braam Fischer (Ordnance) Road, Durban, KwaZulu-Natal.
  • If the respondents fail to comply within twenty-one (21) days, the Sheriff is authorised and directed to take necessary steps, including utilising the services of the applicant or its agents, to give effect thereto.