Van till Outdoor (Pty) Ltd and Another v City of Johannesburg Metropolitan Municipality and Others (2024/032964) [2025] ZAGPJHC 774 (8 August 2025)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE Numbers: 2024 – 032964

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED: YES/NO

8 August 2025

In the matter between:-

VAN TILL OUTDOOR (PTY) LTD

First Applicant

DOUBLE OPTION TRADING (PTY) LTD

Second Applicant

and

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY

First Respondent

THE MUNICIPAL MANAGER OF CITY OF

JOHANNESBURG METROPOLITAN MUNICIPALITY Second Respondent

HEAD OF DEPARTMENT: JOHANNESBURG

METROPOLITAN POLICE DEPARTMENT

Third Respondent

Summary: Declaratory relief – principles considered – direct interest in matter – Court having discretion to grant relief – applicants having proper interest in matter – grounds made out for Court exercising discretion – applicants entitled to declaratory relief

Declarator – rights of applicants considered – applicants entitled to lawful enforcement of By-laws – conduct of respondents

amount to unlawful enforcement – impoundment not provided for in bylaws – impoundment constitutes infringement of right of applicants to conduct business without unlawful interference – right to relief made out

Declarator – doctrine of ripeness – applicants providing proper factual substratum for relief sought – matter not premature – live dispute remains between parties – likelihood of prejudice should relief sought not be granted – dispute not moot – declaratory relief justified

Interdict – principles considered – applicants having clear right where it comes to lawful enforcement of By-laws – reasonable

apprehension of prejudice where it comes to infringement of rights – no alternative remedy available – interdict granted

By-laws – interpretation of By-laws – no provision made for impoundment as mechanism of enforcement – enforcement proceedings consisting of compliance notice and criminal prosecution – purpose of By-law enforcement is to ensure compliance and not punishment – impoundment unlawful

JUDGMENT

SNYMAN, AJ

Introduction

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

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

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

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

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

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

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

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

The relevant background facts

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

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

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

specific place, as it is less likely that all costs would be recovered.

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

[9] Currently the outdoor advertising industry in the area of jurisdiction of the City is regulated by the 2009 Outdoor Advertising By-laws (the Advertising By-laws). In terms of the Advertising By-laws no person may erect a sign or use a sign unless this has been approved in writing by the City. Where it comes to making applications for approval, it involves the proprietor of the sign (such as the applicants) making application to the City to have its advertising structure as well as the flighting of the sign approved by the City. However, material challenges arose on the part of the City where it came to the City processing these applications.

It became the norm that the City either simply refused to accept these applications, or never dealt with the same.

[10] The above state of affairs resulted in a virtually free for all where outdoor advertising companies would erect and / or flight outdoor advertising signs randomly and without any approval from the City. And where it came to enforcement of the Advertising By-laws, the authorised officials (the JMPD) would only randomly and selectively enforce such By-laws against arbitrarily selected companies, such as the applicants. The applicants in fact conceded they were part of the free for all, out of necessity, and have erected and flighted signs on private and public property without the required approvals by the City. Needless to say, this also compromised the City’s revenue steam where it came to these signs.

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

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

[13] The principal difficulty raised by role-players in the industry was that the approval of outdoor advertising cannot be left to an individual. An overhaul of the application and approval / refusal process was necessary. Further, an important objective of the transitional period would be to reconstruct the outdoor advertising landscape across all land to improve compliance with applicable laws and enhance its value.

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

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

thousands of applications were submitted.

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

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

[18] But once again, and unfortunately, the approval process turned out to be lacking. Only in August 2021, which is a substantial period after the initial applications were made in September 2019, the various advertising companies started receiving approvals / refusals from the City. However, these approvals / refusals still came in a trickle. By May 2022, this trickle dried up, and no further approvals / refusals were forthcoming from the City. It also turned out that the temporary mandate of the committee to approve or refuse applications was not renewed and such committee was thus unable to exercise their original mandate. To make matters worse, the delegated authority that was withdrawn from the individual officials in 2019 was never reinstated. This meant that the entire approval / refusal process stalled. Not only did this have a direct impact on all the amnesty applications that had been submitted by the role-players, but it also had an impact on any new applications that were submitted to the City for approval.

[19] Where it came to the applicants specifically, they submitted 8 applications in this time period for new advertising signs and had 21 amnesty applications still open, of which about half were not decided upon. Ordinarily, an advertising sign is only installed after the approval of the City is obtained, but with the material challenges in the process as referred to above, property owners were becoming frustrated and threatening to cancel lease agreements with the advertising companies due to the lack of progress. Effectively, what then happened was that there was simply a return to the free for all position as discussed above, and outdoor

advertising companies again started installing / flighting signs without approval from the City.

[20] The Advertising By-laws are enforced by what is termed an ‘authorized official’. In the case of the City, these officials would be the JMPD. On 15 February 2023, the JMPD in Sandton impounded a vehicle, stepladders

as well as the advertising banner which were supposed to be flighted on a billboard of the second applicant in Sandton Drive. One of the officers instructed the driver to drive the vehicle to the City impound yard.

[21] In conducting the impounding as aforesaid, the JMPD officer issued a document labelled an ‘impound notice’. In this notice, it is recorded that the reason for impounding was ‘in terms of outdoor advertising, advertising signs and hoarding by Laws of the City of Johannesburg for violating Section 9’. There is a handwritten annotation recording that it was for working on a billboard without ‘way-leave’. It was further indicated that the impounded property would be taken to ‘Marlborow’ (sic) pound and the release fee for the impounded property was set at R3 501.00.

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

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

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

[25] Because of these experiences, the applicants requested their legal advisors write a letter to the City, which was done on 20 February 2023. This letter was effectively a letter of demand raising a complaint about the impounding that had been experienced, and referred to the events set out above. It was contended that the said conduct by the JMPD was unlawful. The applicants when further and specifically recorded when the JMPD may conduct the impounding of property, as follows:

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

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

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

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

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

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

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

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

[30] After this meeting in August 2023, matters once again quieted down, with no further incidents of enforcement by the JMPD for several months. But this was a truce that did not last, despite the undertaking provided. On 30 November 2023, the JMPD conducted another impoundment at a sign at Corlett Drive, Melrose Arch, and inter alia impounded a vehicle. This time the impoundment notice was issued in terms of section 11(1) of the Informal Trading By-laws. However, the handwritten annotation on the impound notice referred to erecting a sign without a permit and having no ‘way-leave’. The immediate difficulty is that this has absolutely nothing to do with the Informal Trading By-laws, which simply do not find application, whilst the handwritten annotation refers to the Advertising By-laws. The impound release fee was R3 687.07 plus

R150.00 storage. Again, the applicants were compelled to pay the fees to have the property released.

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

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

Analysis

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

[34] Before I turn to the reasoning given for the order I have made as set out in the introduction to this judgment, I need to make one thing pertinently clear. Nothing I say or decide in this judgment can be considered and construed by the applicants or any other business in the outdoor advertising industry to be any kind of condonation, endorsement or approval for such a party to erect and / or flight a sign unlawfully, and in particular, without the approval of the City as required by the Advertising By-laws. I reiterate, at all times these By-laws, as they read, must be complied with. And added to that, the City is not only entitled to, but in fact obliged to, enforce these By-laws against all that transgress.

[35] It is simply not open to the applicants to say that because the City may have ulterior motives in not dealing with approval applications, or are simply not dealing with such applications because of its own operational challenges, they can proceed to simply erect and / or flight signs. This appears to be the suggestion in the founding affidavit. It is an unacceptable suggestion, and nothing else but a form of impermissible self-help, which must be discouraged in strong terms.[3] If the applicants believe their rights are being infringed in this regard, this would constitute unreasonable administrative action that would be actionable under section 6(2)(g) as read with section 6(3) of PAJA[4]. Also, the fact that there may be a ‘transitional period’ by virtue of the memorandum of 1 March 2019 does not detract from the application of the Advertising By-laws and that the same must be complied with. Just like the applicants expect of the City, they must similarly follow the law.

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

[37] Fortunately, this issue of justification for unlawfully erected signs was largely disposed of when the applicants’ counsel, at the commencement of argument, conceded that the case of the applicants is not that they believe they are somehow entitled to erect signs because the City, simply put, either fails or refuses to do its job where it comes to the processing of approval applications, or that there exists some kind of exemption as a result of the ’transitional period’. He submitted that the applicants’ case is actually based on the assumption that the signs were elected without approval and that the By-laws requiring approval had thus been infringed. The concession was properly made, and made my job in deciding this matter easier.

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

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

[40] Before deciding the question as to whether the impounding by the JMPD is lawful or unlawful, two preliminary issues raised by the City must first be dealt with. The first point made is that the declaratory relief sought by the applicants in this case is not competent, because in a meeting between City officials and the applicants in August 2023, the City undertook not to conduct further impounding and thus the declaratory relief is sought in the absence of a true lis between the parties and is of academic interest only. The second point relates to the interdictory relief sought by the applicants, in respect of which the City contends that there is no reasonable apprehension of prejudice as one of the requirements that must be met for an interdict to be granted. I will now deal with these two points in turn.

[41] The requirements for declaratory relief are settled. Section 21(1)(c) of the Superior Courts Act[5] reads: ‘A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power – ... in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination’. In Gensinger & Neave CC and Others v Minister of Mineral Resources and Energy and Others[6] the Court applied these provisions as follows:

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

[42] In considering section 19 of the Supreme Court Act[7], the predecessor to section 21 of the Superior Court Act in very similar terms, the Court in Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd[8] had the following to say:

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

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

[43] Specifically in the context of declaratory relief, and where it concerns the exercising of the Court’s discretion in granting the declaratory relief sought once it is established the necessary interest exists, the Court in Queen Sibongile Winnifred Zulu v Queen Buhle Mathe and Others[9] appositely held that:

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

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

[45] It is in the context of contending that the Court should not exercise its discretion by granting the applicants the declaratory relief sought, that the City argued that there is no active dispute, for the want of a better description, because of what transpired at the meeting in August 2023 and the fact that after that meeting, there was no further reoccurrences of the same issue. The suggestion was in effect that the matter was not ripe for determination, as something further had to happen after that meeting, before the applicants would be entitled to take action in seeking is to obtain a declarator. I believe that these contentions of the City are unsustainable, both in fact and in law, for the reasons to follow.

[46] Where it comes to the facts, the City has the chronology all wrong. The evidence clearly shows that despite the undertaking given in August 2023, there were further instances of the conduct of impounding / attempted impounding in November 2023 and January 2024. It would certainly seem the City cannot be held at its word where it comes to this issue. But more importantly, such an internal

undertaking in what is nothing but a meeting between two parties would often be insufficient to convince individual JMPD officers

seeking to conduct enforcement in the manner they deem fit to do, not to proceed as they intend. Something more concrete is needed, in the form of a pronouncement by this Court, as sought by the applicants. I am satisfied that the applicants, on the facts, have shown the existence of a live issue in dispute, that remains unresolved, and whilst it remains unresolved, it could likely lead to the same kind of conduct by the JMPD the applicants are complaining of.

[47] Dealing next with the legal issue, counsel for the City further argued that since the bringing of the application in March 2024, the applicants have not filed any further evidence of impounding activity by JMPD officers. It was contended that if the conduct continued, the applicants could have raised it in supplementary affidavits. Or alternatively, the applicants have to wait for another more current impoundment event to happen, and then seek relief. There is however simple answer to this contention. When an applicant seeks to make out a case for even prospective relief, that case is established on the basis of retrospective facts. In simple terms, a factual foundation must be established based on facts as they exist, at the point when the application is brought, to substantiate why future relief is necessary. This is commonly known as a factual substratum.[10] The Court assesses the case based on those facts in deciding whether to grant relief, as no one really knows what will actually happen in the future. This is known as the doctrine of ripeness. In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others[11], Kriegler J, in a minority judgment, said: ‘… Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones …’. This dictum has been applied in several instances since.[12]

[48] A further consideration is whether prejudice has already resulted or is reasonably likely to result, even if some action may still need to come going forward. This was made clear in Rhino Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms (Pty) Ltd and Another[13] as follows:

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

[49] An apposite illustration would be the judgment in Afriforum NPC v Nelson Mandela Foundation Trust and Others[14]. This case concerned the continuing displaying as the old South African flag as being unlawful and constituting hate speech. On the facts, the event relied on was the actual display of the flag at an earlier ‘Black Monday’ protest, and part of the case to be decided was whether declaratory relief for such conduct going forward was appropriate. The Supreme Court of Appeal accepted that the decision of the High Court was based on a proper factual substratum by considering what had already happened,[15] with such Court further deciding:[16] ‘… It follows that there was nothing abstract, academic or hypothetical about the NMF's complaint. It was based on actual contraventions of the Equality Act, and grounded in concrete events at which the old flag was displayed …’. The Court concluded:[17]

‘The old flag is displayed from time to time. It was again displayed at the Black Monday protests. There is a public controversy about the lawfulness of doing so. The purpose of the application by the NMF and the SAHRC was to resolve that very controversy for the benefit of all. Declaratory orders by their very nature, are often directed at conduct that has not yet occurred. But they are vital in the right context, specifically to address issues of public importance or involving a compelling public interest. The Constitutional Court has held that declaratory orders 'can bring clarity and finality to disputes that may, if unresolved, have far-reaching consequences for each party'.

[50] Similarly in casu, the factual substratum of the relief sought by the applicants can be found in what had already transpired, more or less up to the point when the application had been brought. If the applicants’ case that the complained of conduct by the JMPD in this regard is unlawful is upheld, and that the JMPD is thus not entitled to exercise impounding powers under the Advertising By-laws,

then there would be an actual contravention of the By-laws as a live and continuing dispute. And certainly, there is some controversy,

with other businesses in the industry making common cause with the applicants by way of confirmatory affidavits to the founding

affidavit as to their dissatisfaction with the same conduct meted out towards them as well.

[51] This leaves the only counter to retrospective facts being used to obtain prospective relief, to consider, which is what is commonly known as mootness. In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others[18], the Court said that: ‘A case is moot and therefore not justifiable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law’. Specifically in the context of declaratory relief, the Court in J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others[19] held:

‘I interpose that enquiry because a declaratory order is a discretionary remedy, in the sense that the claim lodged by an interested party for such an order does not in itself oblige the Court handling the matter to respond to the question which it poses, even when that looks like being capable of a ready answer. A corollary is the judicial policy governing the discretion thus vested in the Courts, a well-established and uniformly observed policy which directs them not to exercise it in favour of deciding points that are merely abstract, academic or hypothetical ones.’

And in Siemens Energy (Pty) Ltd and others v City of Cape Town and Others[20], the Court had the following to say:

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

of mootness. ...’

[52] So can it be said the current matter is moot, because it is merely abstract and / or hypothetical? In my view, certainly not, considering the facts as a whole. There is very much a live dispute in existence as to what the JMPD is entitled to do in enforcing the Advertising By-laws, which is far from resolved. If there was any doubt about this, the City’s own answering affidavit made it clear, in that the City remained adamant that the JMPD was well within its rights to enforce such By-laws by way of impounding property, in direct contradiction to the view adopted by the applicants. The City also never said in answer it was going to stop doing this. The issues are important, and involve an interpretation of a By-law that would be applicable throughout the outdoor advertising industry. As such, the issue of prejudice remains, and the granting of the declaratory relief sought will therefore have a real and practical effect. That effect would be that the City is not entitled to impound the property of the applicants, and thus prevent all the adverse operational and financial consequences associated with it. Accordingly, it is therefore simply not a case where, as described in Legal Aid South Africa v Magidiwana and Others[21]:

‘... however the appeal turns out, the position of the respondents will remain unaltered and the outcome, certainly as far as this case is concerned, will be a matter of complete indifference to Lasa. What Lasa really seeks is to have this court express a view on a legal conundrum that it hopes to have decided in its favour without in any way affecting the position between the parties ...’

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

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

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

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

[55] But, and as touched on above, the City had another arrow in its quiver. Accepting for the moment that the applicants are able to illustrate a clear right to the relief sought by convincing the Court to grant declaratory relief in their favour, the City opposes the interdictory part of the relief sought. According to the City, there is no reasonable apprehension of an injury in this case, as one of the essential requirements to obtain an interdict. In Setlogelo v Setlogelo[25] the Court explained the requirements of an interdict as follows: ‘... The requisites for the right to claim an interdict axe well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy …’.

[56] What then qualifies as a ‘reasonable apprehension of injury’? The Court dealt with this in V & A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and Others[26]. In that case, the argument was that a breach of a grounding order to operate a helicopter did not constitute 'injury' for purposes of the second essential requirement for a final interdict, because 'injury' in that context had necessarily to entail physical harm or pecuniary loss.[27] The Court reasoned as follows, in rejecting this argument:[28]

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

right. Subsequent judicial pronouncements have variously used 'infringement' of right and 'invasion of right'. ...’

[57] There can be little doubt, concerning what is set out above, that what is involved here is the infringement of the rights of the applicants. They have the right to conduct their business without undue or unlawful interference.[29] They further have the right that actions taken against them by the City, as an arm of the State, must be in compliance with the

Constitution and be lawfully exercised.[30] And lastly, on the facts, it can be said the possibility of future harm / prejudice can be reasonably apprehended, considering how the City has conducted itself so far, as well as the fact that it considers such conduct to be entirely permissible and lawful. I am satisfied that the applicants have shown the requisite reasonable apprehension of injury to exist, as the second essential requirement for obtaining interdictory relief.

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

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

And as held in Tau v Mashaba and Others[32]:

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

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

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

‘3(1) No person may erect any advertising sign or use or continue to use any advertising sign or any structure or device as an advertising

sign without the prior written approval of the Council.

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

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

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

specified in the notice, within a period so specified.’

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

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

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

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

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

relating to the implementation and enforcement of these By-laws, between 08:00 and 17:00, on any day other than a Sunday or public

holiday, carry out an inspection of any advertising sign.’

[66] And finally, where it comes to continued contravention, section 38 provides that: ‘the person in contravention shall be guilty of an offence, and shall liable on conviction to a fine or in default of payment to

imprisonment for a period not exceeding 12 months, or in the case of a continuing offence, to a further fine not exceeding R1 000, or in default of payment to imprisonment not exceeding one day, for every day during the continuance of such offence after a written notice has been served on him or her by the Council or an authorised official requiring the discontinuation of such offence’.[36]

[67] When interpreting all these provisions contained in the Advertising By-laws, the following principles, as set out in Chisuse and Others v Director-General, Department of Home Affairs and Another[37] apply:

‘In interpreting statutory provisions, recourse is first had to the plain, ordinary grammatical meaning of the words in question. Poetry

and philosophical discourses may point to the malleability of words and the nebulousness of meaning, but, in legal interpretation,

the ordinary understanding of the words should serve as a vital constraint on the interpretative exercise, unless this interpretation

would result in an absurdity. As this court has previously noted in Cool Ideas, this principle has three broad riders, namely —

'(a) that statutory provisions should always be interpreted purposively;

(b) the relevant statutory provision must be properly contextualised; and

(c) all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso to the general principle is closely related to the purposive approach referred to in (a).'

Judges must hesitate 'to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation.'

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

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

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

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

[72] There is another illustration to indicate the fallacy of what the City is doing. As is apparent from the applicants’ affidavits, when the City impounds the property, and the applicants are then forced to collect the property and pay the impound fee, what then happens is that the personnel concerned almost immediately returns to the sign and flights it. So, and honestly, what is the point? The point must always be that in the end, non-compliant signs must be removed. That is not achieved by impounding what is at best ancillary property. It seems to me that the City is using a short cut to harass outdoor advertisers into compliance through operational nuisance and financial prejudice. That is simply not on. Whilst the City, as said, is entitled and obliged to enforce compliance, it must do so in compliance with its own By-laws.

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

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

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

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

‘The bylaws and property rates policy referred to above also do not contain a provision, either expressly or by necessary implication,

that a successor in title who is not a debtor of the municipality with regard to the property concerned, shall be liable for the

payment of historical debts. They refer, by implication, to the person who is the consumer, customer, occupier or owner of the

property when the debt was incurred. A new or subsequent owner, who is not a debtor in this regard, can therefore not be held liable for the payment of these debts, neither should the municipality be entitled to refuse the rendering of services to such a person. Doing so would mean that the municipality is not only disregarding its constitutional duty to ensure the provision of services to a member of the community who is entitled thereto, but is also exercising a public power without any legal authority.

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

[75] I turn in conclusion to the provisions of the South African Police Service Act.[45] In terms of section 64E, the functions of a municipal police service (such as the JMPD) are (a) traffic policing, subject to any legislation relating to road traffic; (b) the policing of municipal by-laws and regulations which are the responsibility of the municipality in question; and (c) the prevention of crime. Therefore, the JMPD is undoubtedly statutorily empowered to police the Advertising By-laws. But nothing in this provision affords the JMPD a general power of impounding property in conducting such policing, especially considering that the By-laws that are sought to be policed has its own enforcement provisions which does not include such power. If there was power to impound, the By-laws needed to specifically stipulate this. This is further evident from section 64F(2), which provides that even of the power to seize has been conferred to a member of a municipal police service in general, then the member of the municipal police service must immediately deliver the article seized to the SAPS. It is not permissible to take such article to the Municipal pound and demand payment for its release, where it comes to any article seized for a contravention of the Advertising By-laws, by virtue of a general power to seize under the South African Police Service Act.

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

[77] Where it comes to the interdictory relief, I am satisfied that the applicants have demonstrated a clear right, in the form of the right not to be subjected to unlawful conduct where it comes to their business activities. The reasonable apprehension of injury where it comes to the realistic prospect of a continuation of the violation of such right by the City satisfies the second requirement of harm / prejudice. And finally, it is clear that the applicants have no realistic alternative remedy to their disposal. As such, the applicants are also entitled to the interdictory relief sought.

Costs

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

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

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

SNYMAN AJ

Acting Judge of the High Court of South Africa

Gauteng Division, Johannesburg

Appearances:

Heard on:

29 July 2025

For the Applicants:

Advocate A Botha SC together with

Advocate W Krog

Instructed by:

Goodes & Co Attorneys

For the Individual Respondents: Advocate T J Makgate

Instructed by:

Polela Maake Attorneys

Attorneys Judgment:

8 August 2025

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

[2] Unreported Case number 19656 / 18 per Dosio AJ.

[3] See Public Servants Association obo Ubogu v Head, Department of Health, Gauteng and Others 2018 (2) SA 365 (CC) at paras 66 – 67; Chief Lesapo v North West Agricultural Bank and Another [1999] ZACC 16; 2000 (1) SA 409 (CC) at para 11.

[4] The Promotion of Administrative Justice Act 3 of 2000.

[5] Act 10 of 2013.

[6] 2025 (4) SA 84 (SCA) at para 31.

[7] Act 59 of 1959. Section 19(1)(a)(iii) reads: ‘A provincial or local division shall have jurisdiction over all persons residing or being in and in relation to all causes arising

and all offences triable within its area of jurisdiction and all other matters of which it may according to law take cognisance,

and shall, subject to the provisions of ss (2), in addition to any powers or jurisdiction which may be vested in it by law, have power … in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future

or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination

…’.

[8] 2005 (6) SA 205 (SCA) at paras 17 – 18.

[9] 2024 JDR 1017 (SCA) at para 12. See also West Coast Rock Lobster Association and Others v Minister of Environmental Affairs and Tourism and Others [2011] All SA 487 (SCA) para 45.

[10] See Association for Voluntary Sterilization of South Africa v Standard Trust Limited and Others2023 JDR 1983 (SCA) at para 13

[11] 1996 (1) SA 984 (CC) at para 199.

[12] See Public Protector v Chairperson, Section 194(1) Committee and Others 2025 (4) SA 428 (SCA) at para 40; Akani Retirement Fund Administrators (Pty) Limited and Others v Moropa and Others 2025 JDR 0776 (SCA) at para 26; Lueven Metals (Pty) Ltd v Commissioner for the South African Revenue Service 2023 JDR 4268 (SCA) at para 27; Clear Enterprise (Pty) Ltd v The Commissioner for The South African Revenue Services 2011 JDR 1243 (SCA) at para 17.

[13] 2019 (6) SA 400 (SCA) at para 33.

[14] 2023 (4) SA 1 (SCA).

[15] See para 25 of the judgment.

[16] Id at para 26.

[17] Id at para 27.

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

[19] [1996] ZACC 23; 1997 (3) SA 514 (CC) at para 15.

[20] 2024 JDR 3133 (WCC) at para 24.

[21] 2015 (2) SA 568 (SCA) at para 18.

[22] POPCRU v SACOSWU and Others 2019 (1) SA 73 (CC) at para 44; Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another [2004] ZACC 24; 2005 (4) SA 319 (CC) at para 22; President of the Republic of South Africa v Democratic Alliance and Others 2020 (1) SA 428 (CC) at para 17; Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC) at para 9.

[23] [2007] ZACC 24; 2008 (2) SA 472 (CC) at para 29.

[24] In Normandien Farms (supra) at para 50, it was held: ‘Moreover, this court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include (a) whether any order which it may make will have some practical effect either on the parties or on others; (b) the nature and extent of the practical effect that any possible order might have; (c) the importance of the issue: (d) the complexity of the issue; (e) the fullness or otherwise of the arguments advanced …’.

[25] 1914 AD 221 at 227. See also Masstores (Pty) Ltd v Pick N Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) at para 8.

[26] 2006 (1) SA 252 (SCA).

[27] See para 20 of the judgment.

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

[29] See section 22 of the Constitution. In Rafoneke and Another v Minister of Justice and Correctional Services and Others 2022 (6) SA 27 (CC) at para 75, it was said that the right to regulate business activity by law is permissible: ‘… as long as the power to regulate is exercised in an objectively rational manner related to a legitimate governmental purpose …’.

[30] See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC) at para 58; Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA) at para 1; Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others 2021 (3) SA 593 (SCA) at para 5.

[31] Id at para 23.

[32] 2020 (5) SA 135 (SCA) at para 26.

[33] Section 2(3) reads: ‘The owner of an advertising sign and any person who has applied for approval of an advertising sign in terms of these By-laws must comply with any provision of these By-laws relating to that sign and must ensure that such provisions are complied with, subject to anything to the contrary contained in such provision …’.

[34] The application approval process and requirements are set out in section 3(3).

[35] Sections 37(3) and (4).

[36] Section 38 inter alia applies to any person that: (a) contravenes or fails to comply with any provision of these By-laws or (b) refuses or fails to comply with any notice served on him or her in terms of or for the purposes of these By-laws.

[37] 2020 (6) SA 14 (CC) at paras 47 – 48.

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

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

[40] [2006] ZACC 9; 2007 (1) SA 343 (CC) at para 68. This is a dictum from the minority judgment of Langa CJ, however such dictum has been applied in Lester (supra) at para 26; Roux v Health Professions Council of South Africa 2011 JDR 1132 (SCA) at para 31; Minister for Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC) at para 27.

[41] 2017 (2) SA 295 (GP).

[42] Id at para 72.

[43] Id at para 76 – 77.

[44] This reasoning was upheld in Jordaan and Others v Tshwane Metropolitan Municipality and Others 2017 (6) SA 287 (CC) at para 78.

[45] Act 68 of 1995.