City of Cape Town v Independent Outdoor Media (Pty) Limited and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J and Rogers J |
| Judgment Date | 23 June 2023 |
| Citation | 2023 JDR 2257 (CC) |
| Hearing Date | 03 November 2022 |
| Docket Number | CCT 36/22 |
| Court | Constitutional Court |
Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring):
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
Introduction
This is an application by the City of Cape Town (City) for confirmation of an order of constitutional invalidity of section 29(8) of the National Building Regulations and Building Standards Act [1] (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
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 the 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.
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
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.
Out of Home Media South Africa NPC (OHMSA) was admitted as an amicus curiae and made written submissions. OHMSA is a non-profit company that represents the interests of media owners in the outdoor advertising industry. Its members collectively own and operate approximately 80% of all outdoor advertising signs in South Africa.
Background
The applications arise from a dispute relating to two billboards on the Overbeek Building, a prominent building 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]
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
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 authorisations lapsed on 3 March 2004 and 5 November 2005 respectively. However, IOM continued to display advertisements on the building without authorisation from the City.
The City’s enforcement efforts against IOM’s unauthorised display of the advertisements, which included imposing fines, initiating criminal proceedings and 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
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
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
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 spirit of cooperative governance, the City joined the Minister to the proceedings and launched a direct constitutional challenge to section 29(8) of the Building Act. The direct challenge, which was unopposed, displaced the collateral defence.
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.
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]
The High Court held that municipal autonomy ensured by the mutual respect provisions in the Constitution must inform the interpretation of municipal powers [7] and
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
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]
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]
In respect of the separation of powers, the High Court held that the Minister’s veto power “imposes a different legislative process and a different legislator from that
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
which is constitutionally envisioned”. [14] This was held to be contrary to the scheme set out in sections 43(c), [15] 151(4), [16] and 160(2)(a) [17] of the Constitution. [18]
Although it is not in issue in this case, the High Court noted that section 29(8) creates the possibility that the Minister 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]
The High Court rejected the Minister’s argument that billboards and public advertisements are not covered by section 29(8), instead preferring the interpretation of the High Court in SAPOA [21] and Independent Outdoor Media (Pty) Ltd [22] It reasoned that, in any event, interpreting section 29(8) so that it does not apply to billboards 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 the
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Mbatha AJ (Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J and Rogers J concurring)
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]
Consequently, the High Court dismissed IOM’s counter-application and supplementary challenges. The High 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...
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