McGregor and Another v City of Johannesburg (A5033/04) [2005] ZAGPHC 98 (27 September 2005)

IN THE HIGH COURT OFSOUTH AFRICA(WITWATERSRANDLOCAL DIVISION)CASE NO:5033/04

IN THE HIGH COURT OF

SOUTH AFRICA

(

WITWATERSRAND

LOCAL DIVISION)

CASE NO:

5033/04

In the matter between:

McGREGOR, BRUCE EUVRARD

First Appellant

CORPCOM OUTDOOR (PTY) LTD

Second Appellant

and

THE CITY OF

JOHANNESBURG

Respondent

________________________________________________________________

JUDGMENT

GOLDSTEIN J:

[1] The appellants appeal, with the leave of the Supreme Court of Appeal, against an order of Cachalia J in this Division on 6 November 2003, in terms of which the appellants were, on ground in Buccleuch, Johannesburg, to cease advertising by means of a sign or hoarding (“ the sign”), and were to remove the sign.[2] The appellants were originally on 1 July 1999 granted written consent to display the sign by the Eastern Metropolitan Local Council, a predecessor –in– title of the respondent, in terms of the provisions of the Sign and Advertising Hoardings: By Laws, published in Local Authority Notice 37 of the Municipality of Sandton, in the Provincial Gazette of 4 January 1995, at page 92. I shall refer to these by–laws as “the first by–laws”. The consent was to operate for a period of 3 years.[3] The first by–laws were repealed by Notice 6271 of 1999, containing the Eastern Metropolitan Local Council Advertising Signs and Hoardings: By– Laws, and published in the Provincial Gazette of 29 September 1999 at page 136. I shall refer to these by–laws as the “second by–laws.” Section 38 of the second by– laws reads as follows in so far as it is relevant:

“(1) Subject to the provisions of the subsection (2) …. Local Authority Notice 37 published in the Provincial Gazette dated 4 January 1995 ...:. (is) hereby repealed.(2)Anything done under or in terms of any provisionrepealed by the(sic)subsection (1) shall be deemed to have been done under thecorresponding provisions of these By–Lawsand such repeal shallnot affect the validity of anything done under the By–Laws sorepealed.”

Anything done under or in terms of any provision

repealed by the

subsection (1) shall be deemed to have been done under the

corresponding provisions of these By–Laws

and such repeal shall

not affect the validity of anything done under the By–Laws so

repealed.”

It follows from the words I have italicised that the consent of 1 July 1999 must be deemed to have been furnished in terms of the second by–laws, and from the words I have underlined, that the consent of 1 July 1999 remained operative, and of course, that it remained so for the period of 3 years stipulated therein.[4] By Notice 7170 of 2001, appearing in the Provincial Gazette Extraordinary of the Province of Gauteng on 28 November 2001, Advertising Signs and Hoarding By–Laws for the City of Johannesburg were published and made operative from 1 December 2001. I shall refer to these by–laws as “the third by–laws.” Section 43 of the third by–laws repealed the second by–laws.[5] Section 43 of the third by–laws reads as follows in so far as it is relevant:

“(1) Subject to the provisions of sub-clause (2): Outdoor Advertising By–LawsCounsel are agreed that the Outdoor Advertising By–Laws are the Eastern Metropolitan Local Council Advertising Signs and Hoardings: By–Laws referred to in para [3] above.

Counsel are agreed that the Outdoor Advertising By–Laws are the Eastern Metropolitan Local Council Advertising Signs and Hoardings: By–Laws referred to in para [3] above.

Anything done under or in terms of any provision of the By–

l

aws repealed by sub-clause (1) shall be deemed to have been done under the corresponding provisions of these

B

y–

aws

and such

repeal shall not effect the validity of anything done under the By–

aws so repealed

It follows from the words I have italicised, and from those italicised in section 38 of the second by–laws, that the consent of 1 July 1999 must be deemed to have been furnished in terms of the third by–laws, and from the words I have underlined, and those underlined in section 38 of the second by–laws, that the consent of 1 July 1999 remained operative, and of course, that it remained operative for 3 years from such date.[6] Accordingly, applying the provisions referred to above, by 1 July 2002 the consent of 1 July 1999 was no longer operative, and the respondent brought an application against the appellants in the Courta quowhich led to the order referred to in para [1] above. The ground concerned was zoned “residential” and, in terms of section 5 (26) of the third by–laws, the erection of the sign on such ground was prohibited.[7] The defence proffered by the appellants relies upon section 4(3) read with sections 2(1) and (2) of the third by–laws. Section 4(3) reads:

a quo

“Any sign which does not comply with the provisions of these By–laws and which was lawfully displayed on the day immediately preceding the date of commencement of these By–laws shall be exempt from the requirements of these By–laws if the sign in the opinion of the Council is properly maintained and is not altered, moved or re-erected as contemplated in Clause 2(2).”

And sections (or Clauses) 2(1) and 2(2) of the third by–laws read:

“(1) No person shall display or erect any advertising sign or hoarding or use any advertising sign or hoarding or use any structure or device as an advertising sign or hoarding without first having obtained the written approval of the Council; provided that the provisions of this Clause shall not apply to signs contemplated in Clause 4,

(2) No sign erected displayed (sic) with the approval of the Council shall in any way be altered, moved, re-erected nor shall any alteration be made to the electrical wiring system of such sign except for the purposes of renovating or maintenance, without the further approval of the Council in terms of sub-clause (1).”

[8] The sign does not comply with the provisions of the third by–laws because it contravenes section 5(26). It was lawfully displayed on 30 November 2001 – the day immediately preceding the date of commencement of the third by–laws. There is no suggestion that it has not been properly maintained in the opinion of the Council, or that it has been altered, moved or re-erected. It accordingly satisfies all the requirements of section 4(3) and is exempt from the requirements of the third by–laws. Mr Both who appeared for the respondent contended that this result was absurd, or anomalous, or, if I understood the argument correctly, clearly in conflict with the intention of the law-maker. Mr Both referred in this regard to the preambleThe portion of the preamble relied upon by counsel reads:“Whereas the community of the City ofJohannesburghas legitimate interest in ensuring:-1.

The portion of the preamble relied upon by counsel reads:“Whereas the community of the City of

Johannesburg

has legitimate interest in ensuring:-

1.

that signs or advertisements do not constitute a danger or nuisance to members of the general public whether by way of obstruction, interference with traffic signals or with the visibility of such signals, light nuisance or otherwise;2.the signage or advertising displayed in its living environment is aesthetically pleasing, appropriate and placed at appropriate sites with an uncluttered effect;3.that its environment for tourism is characterised by a high standard of user friendly signage and advertising satisfactorily integrated into the environment;

2.

3.

AND WHEREAS individual businesses have legitimate interests in the proper advertising of their businesses, wares and products;AND WHEREAS it is the duty of the Council of the City of Johannesburg to balance the competing interests in a fair, equitable, flexible and responsible way;…”

excludes

R v Shoolman

1937 CPD 183.

de facto

Casely NO v Minister of Defence

quo

_____________________________

E L GOLDSTEIN

JUDGE OF THE HIGH COURT

For the appellants:

Jasper DanielsInstructed by:

Wertheim Becker IncFor the respondent:

J BothC B McEwanInstructed by:

Weakley – Mojela IncorporatedDate of hearing:

1 September 2005Date of judgment:

27/09/2005