South Africa: High Courts - Gauteng

[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[3]      The first by–laws were repealed by Notice 6271 of 1999, containing the Eastern Metropolitan Local Council Advertising Signs and Hoardings: By– Laws, and published in the Provincial Gazette of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 (is) hereby repealed.
         (2)      Anything done under or in terms of any provision repealed by the         (sic) subsection (1) shall be deemed to have been done under the         corresponding provisions of these By–Laws and such repeal shall          not affect the validity of anything done under the By–Laws so    repealed.”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 Section 43 of the third by–laws repealed the second by–laws.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–Laws published under Local Authority Notice 6271          published in the Provincial Gazette No 80 dated 29 September     1999 …..(is) hereby repealed.
         (2)      Anything done under or in terms of any provision of the By–laws          repealed by sub-clause (1) shall be deemed to have been done     under the corresponding provisions of these By–laws and such     repeal shall not effect the validity of anything done under the By–      laws 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 Court a quo which 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:

         “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 preamble to the third by–laws which showed, he contended, that the law-maker intended to regulate signage in the city comprehensively. In my view the preamble is by no means as clear as counsel contends. Section 2(1) is of much greater importance and clarity in regard to the problem we are confronted with. It states the general rule that the Council is to oversee and control all advertising signage, but subject to the proviso which excludes the signs described in section 4, including, of course, those covered by section 4(3).
[9]      It is instructive to compare the provisions of section 4(3) with those of section 43(2). The effect of the latter section is to preserve a consent granted in the past subject to the terms and conditions thereof, including its duration. Section 4(3) allows of the indefinite use of a sign which was erected on the day before the third by–laws became operative, provided it is properly maintained and not altered, moved or re-erected. The two provisions may overlap in some cases, but may also operate independently of one another. Thus, a consent granted in terms of the second by–laws, but not yet given effect to by the erection of the sign concerned, would result in all the terms and conditions of the consent, including its duration, being preserved. Where, however, erection of a signs has occurred lawfully on the date before the third by–laws became operative, the sign is excluded from the operation of such by–laws. Is this result anomalous or absurd? I think not. The law-maker may have taken the view that it did not wish to interfere with signs which had been lawfully erected, sometimes at great trouble and expense. The first and second by–laws clearly relate to a smaller area than does the third by–laws, and, possibly, certain areas covered by the third by–laws were not governed by any signage rules in the past. If this is so, section 4(3) would operate to preserve the lawfulness of signs in such areas, in accordance with the approach in the decision in R v Shoolman 1937 CPD 183.

[10]     Mr Daniels, who appeared for the appellants, argued correctly that if the respondent’s interpretation of section 4(3) were to be accepted, the section would be superfluous since it would be duplicating the effect of section 43(2). Of course, a court must attempt to avoid an interpretation that renders words in a statute superfluous. Whilst section 43(2) preserves the effect of legal acts performed in terms of previous by–laws, section 4(3) preserves de facto situations which were lawful on the day before the third by–laws became operative. There is a measure of overlapping and tautology between the two. But that is not unacceptable – Cf Casely NO v Minister of Defence 1973(1) SA 630 (A) at 639 A-D.

[11]     In the result I would make the following order:
         1.       The appeal is upheld;
         2.       The respondent is ordered to pay the appellants’ costs of appeal;       
         3.       The order of the Court a quo is amended to read: “The application         is dismissed with costs.”

        

For the appellants:               Jasper Daniels
Instructed by:            Wertheim Becker Inc
For the respondent:               J Both
                                    C B McEwan
Instructed by:            Weakley – Mojela Incorporated
Date of hearing:                  1 September 2005
Date of judgment:                 27/09/2005