Concourt confirms that signs were in fact illegal

THE Constitutional Court has confirmed a January 2022 Western Cape High Court ruling on the illegality of the outdoor advertising signs and structures on the façade of the Overbeek Building at the intersection of Long and Kloof streets and that it’s the City’s job to regulate such adverts.

The advertising structures and signs were installed some years ago and despite their approvals in terms of the City’s previous advertising and signage by-laws having lapsed in 2005, they continued to be displayed.

The Constitutional Court ruled on Friday that the City’s Outdoor Advertising and Signage by-law was constitutional and that the City was within its rights to regulate outdoor advertising as prescribed by the by-law.

The court also said the City’s administration did not need the authority of the National Minister of Trade, Industry and Competition before promulgating the by-law regulating outdoor advertising and signage.

In a unanimous judgment penned by the Constitutional Court’s Acting Judge Yvonne Mbatha, the appeal from Independent Outdoor Media (IOM), the owner of the Overbeek signs, was dismissed with a cost order, including the City’s costs of two counsel.

As a result of the Constitutional Court ruling, IOM was ordered by the court to remove the unlawful signs.

The City had approached the Concourt with an application for confirmation which IOM had opposed.

The constitutional challenge arose from a dispute between the City and IOM regarding advertisements on the Overbeek building in Cape Town.

In 1999 and 2000, the Body Corporate of the Overbeek Building leased two advertising spaces on the building to IOM.

The City authorised IOM to advertise on the two spaces for five years, in terms of the by-laws applicable at the time.

These authorisations lapsed in March 2004 and November 2005. However, IOM continued to display advertisements on the building in contravention of the City’s by-laws. The City took various steps to enforce compliance, but was unsuccessful.

In 2016, the City brought an application in the high court against the body corporate of the building and IOM for removing the unauthorised advertisements.

In 2021, the City’s application was consolidated with a similar application brought by the body corporate to remove the advertisements.

IOM brought a counter-application seeking a declaration that the City’s by-laws were void because they were promulgated without complying with Section 29(8) of the Act, which requires by-laws that relate to “the erection of a building” to be approved by the minister of trade, industry and competition before promulgation.

IOM argued that even if the section was declared invalid with retrospective effect to the date that the Constitution came into force, the Advertising by-Law should not be applied in criminal proceedings because the right to a fair trial included the right not to be convicted for conduct that was not an offence at the time of its commission.

During the high court matter the judge ruled that the minister’s veto was “constitutionally impermissible” and the Constitutional Court agreed.