South Africa: High Courts - Gauteng

CASE NO ; A 5033/04

         SATCHWELL J:

         Introduction

1.      

I have had the opportunity of reading the judgment of my brother Goldstein J and regret that, with respect, I cannot agree with the conclusion which he has reached on the question before us. I have had the opportunity of reading the judgment of my brother Tsoka J and agree with his conclusion. The following are my reasons for the aforegoing.

Preservation of the 1999 approval granted to the appellants
2.      

The appellants were granted written approval by the Eastern Metropolitan Council to display a sign on Portion 2 of Erf 6, Buccleuch Township. Such approval was granted in terms of the provisions of the Sign and Advertising Hoardings By- Laws These by laws were published in the Provincial Gazette of 4^th January 1995. (hereafter called the ‘1995 By -Laws’). The approval was dated 1^st July 1999 and was made subject to no less than fourteen conditions. One such condition reads:

“Approval shall be for a 3 (Three) year period only – renegotiable three months prior to expiry.”

It is common cause that such approval or consent was to operate for the period 1^st July 1999 to 30^th June 2002.

3.      

Subsequent by laws repealed the 1995 by laws in 1999 and 2001 ( to be known as the ‘1999 by laws’ and ‘2001 by laws’) The Eastern Metropolitan Local Council Advertising Signs and Hoardings By laws published in the Provincial Gazette on 29^th September 1999 and the Advertising Signs and Hoarding By laws for the City of Johannesburg published in the Provincial Gazette of 28 November 2001 and made operative from 1^st December 2001.. Common to both the 1999 and the 2001 by laws was a sub clause which reads:

“Anything done under or in terms of any provision repealed by the subsection (1) shall be deemed to have been done under the corresponding provisions of these By-Laws and such repeal shall not affect the validity of anything done under the By-Laws so repealed.” (my underlining). (Clause 38(2) of the 1999 By-Laws and sub clause 43(2) of the 2001 By-Laws)

4.      

It follows from the underlined words in the 1999 and 2001 By-Laws that the approval or consent given on 1^st July 1999 remained operative. The validity of that which was done by the predecessor to the City of Johannesburg, the Eastern Metropolitan Local Council, was not affected by the subsequent repeals of the enabling 1995 By-Laws. The purpose of this sub clause was clearly to preserve existing rights. The rights so preserved are such as those granted to the appellants – namely, that they may erect an advertising sign subject to those conditions set out in the written approval or consent of 1^st July 1999. Accordingly, the approval or consent granted to appellants endured until 30^th June 2002.

2001 prohibition of certain signage –appellant’s sign no longer compliant with By-Laws
5.      

The 2001 By-Laws had introduced a new designation to the class of prohibited signs Clause 5 of the 2001 By-Laws has certain commonality with its predecessor By –Laws.. 5(26) now provided that no person shall erect or cause or permit to be erected or maintained,

“Any third party advertising sign on any property zoned “Residential” in terms of the relevant Town Planning Scheme whether secondary rights or not have been granted by Council and which are exercised on the erf”.

6.      

It is common cause that the sign erected by the appellants is on property zoned ‘Residential’ and that the erection of the sign is now struck by the prohibition contained in sub clause 5(26). Accordingly, on expiration of the three year period of approval or consent, the sign would not be capable of lawful erection. That was the attitude of the respondent when, on 19 November 2002, appellants made application for approval of the erection of the same sign on the same premises. On 26 November 2002 the relevant authority advised that the application “cannot be considered” stating that “Neither the designated official functioning in terms of the designated authority, nor the tribunal has the authority to approve or refuse an application for a sign, which is prohibited in terms of the By-Laws”. Letter of 26 November 2002 being Annexure AMW8 to the papers.

7.      

The respondent launched proceedings for an order interdicting the appellants from the unlawful use of the property in contravention of the 2001 By-Laws, from unlawfully advertising on the property and to remove all signs erected thereon The orders were granted by Cachalia J and it against those orders that the appellants are appealing..

Exemption for non-compliant signs
8.      

Appellants contended then, as they do now, that sub clause 4(3) of the 2001 By-Laws comes to their aid.

9.      

The relevant portion of Clause 4 must be read in conjunction with Clause 2. Sub clause 2 (1) provides that no person shall display or erect any advertising sign or use any structure as an advertising sign without first having obtained the written approval of the Council. It is specifically provided that the provisions of sub clause 2(1) shall not apply to the signs contemplated in clause 4.

10.     

Clause 4 deals with “Exempt Signs”. Sub clause (1) specifies a number of signs which are exempt from the provisions of clause 2 but which are required to comply with all other provisions of the 2001 By -Laws. These signs are provided for in further sub-clauses (a) to (l) and are identified by reference to location and/or size. Sub clause 4(3) provides:

“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 Sub Clause 2(2).” The predecessor By-Laws contained identical subclauses 4(3)

11.     

Appellants argue that, by virtue of the approval or consent granted in 1999, their signage was lawfully displayed on the day immediately prior to the respondent’s By-Laws coming into effect (the 1^st December 2001). Accordingly, they submit that their signage falls within the ambit of the exemption granted in terms of sub clause 4(3) read with sub clause 2(1).

12.     

The result for which the appellants contend is that sub clause 4(3) would have granted to appellants and any other prohibited sign lawfully erected on the one relevant day (30^th November 2001) an unlimited exemption forever from the requirement to obtain written approval from the Council in terms of sub clause 2(1). There is, contend appellants, now no time limit whatsoever on their display of their prohibited sign provided they do not alter, move or re-erect it.

13.     

The court a quo found that such construction could not be sustained “as the effect of such an interpretation would be to perpetuate a legal fiction that the signage was lawful ad infinitum even though its continued display “was clearly unlawful”. Cachalia J held:

In effect for all practical purposes it would render the present bylaws ineffective in respect of every prohibited sign if such sign was lawful prior to the commencement of the present bylaws. This would fall foul of a principle of statutory interpretation applicable to subordinate legislation as well, that a court must not interpret a statutory provision in such a way which renders it invalid or ineffective if the language of the statue is capable of an interpretation which does not render it ineffective.
In my view it appears to be clear that what the legislature intended with sub clause 4(3) was to protect, for a limited period only, any existing advertising sign and hoarding which had been erected and displayed lawfully under the previous bylaws but which had become unlawful by virtue of the promulgation of the present bylaws.
In the case of the signage erected and displayed by the respondents, that period would have expired at midnight on 30 June 2002. The window period allowed to the respondents by the legislature has ended, so has their right to continue to display their sign.”’

The Import of sub clause 4(3)

14.     

By reason of sub clause 43(2) of the 1999 and 2001 By-Laws the approval of 1^st July 1999 remain effective. This sub clause has done no more than preserve the limited rights which the appellants acquired in 1999. The result was that, by reason of sub clause 43(2), on 1^st December 2001, the approval granted to the appellants continued to be operative and subject to the specified conditions contained therein, including that of the duration of the approval.

15.     

However, the 2001 By-Laws were not mere repetition of that set out in the predecessor 1999 and 1995 By-Laws. Of critical importance to the appellants is that they had ceased to be compliant with the Municipal by laws with effect from 1^st December 2001 onwards because the sign had been erected on ‘residential’ ground and any erection of signs thereon is now prohibited The newly introduced Clause 5(26)..

16.     

Accordingly, the appellants would have been obliged to remove their sign and cease display thereof on 1^st December 2001 notwithstanding that they had been granted permission for such display until 30^th June 2002. The enactment of sub clause 43(2) would have been rendered a nullity because the original approval would have been deemed to be valid but the erection and display of the sign on ‘residential’ ground was now prohibited.

17.     

The intention of the Legislature in enacting sub clause 43(2), and it’s predecessors, was to preserve existing rights. To ensure such preservation in the face of changing requirements for display or signs, the Legislature enacted sub clause 4(3) and it’s predecessors. Sub clause 4(3) is the Legislature’s attempt to resolve the conflict between 2001 law as it currently stands and the 1999 right previously granted and still extant.

18.     

Sub clause 4(3) clearly contemplates and expressly refers to the apparent contradiction between deeming a previous approval to be valid when that approval no longer meets with current requirements for erection and display of signs. The sub clause opens by reference to the apparent anomaly where there is, on the one hand, a sign which “does not comply with the provisions of the by laws” and, on the other hand, a sign which is “lawfully displayed”.

19.     

Sub clause 4(3) reconciles these two obviously repugnant states by granting an exemption to any sign which complies with both these competing jurisdictional facts: a previously lawful status quo and a current contravention of the by laws. The sub clause is thus not mere legislative surplusage but provides an essential bridge between the past right granted to the signholder and the new powers to be exercised by the Council.

20.     

Sub clause 4(3) is applicable when these two competing jurisdictional facts are established. In the present instance the sign “does not comply with the provisions of the by laws” and it was “lawfully displayed” on the day immediately preceding commencement of the by laws i.e. 31^st November 2001.

21.     

Accordingly, the appellants were entitled to an exemption from the provisions of sub clause 2(1) of the by laws which prohibits the erection and display of a sign or hoarding without written approval of the Council and which approval the Council could not grant after 30th^th November 2001 by reason of the enactment of sub clause 5(26).

Does sub clause 4(3) create an indefinite exemption for signs which were lawful on 30^th November 2001 but non-compliant with the by laws on 1^st December 2001?
22.     

As one views the chronology of events the position is as follows: On 30^th November 2001 the appellants were “lawfully” displaying by reasons of the approval (subject to conditions) granted on 1^st July 1999 Which approval has been preserved by the 1999 predecessor of clause 43(2)). On 1^st December 2001 the appellants were not compliant with the By-Laws of that date. They are thus caught betwixt and between the earlier approval and the now operative By-Laws Which By laws now prohibit the erection and display of such sign – vide clauses 2(1) and 5(26).. They are saved by the second jurisdictional fact in sub clause 4(3) which allows their earlier lawful (and conditional) approval to obtain for them an exemption from the written approval which they cannot now be granted.

23.     

But they may be saved only for so long as they are “lawfully” displaying their sign. At midnight of 30^th June 2001 the appellants’ approval terminated. The display then ceased to be lawful. At midnight of 30^th June 2001 The date until which the validity of the approval of 1^st July 1999 endured. the appellants therefore immediately ceased to trigger the second jurisdictional fact which had, until that date, granted them an exemption.

24.     

The appellant has argued that their exemption from the requirement of compliance with the now operative by laws is subject to no time limitation. It is submitted that the restriction on their approval, that it would endure until midnight on 30^th June 2001, has fallen away. The sign, though erected and displayed on ‘residential’ ground and thus incapable of now obtaining written approval of the Council, may continue to be so erected and displayed without any time limits or restriction. The appellant relies on the wording of sub clause 4(3) which formulates the second jurisdictional fact as “which was lawfully displayed on the day immediately preceding the date of commencement of these By-Laws”. The appellant submits that because the sign met both these requirements – noncompliance and lawfulness – on the one day specified, namely the 30^th November 2001, the sign is exempt from the provisions of the by laws for evermore.

25.     

Appellants have argued that the wording of the sub clause is clear and unambiguous and should be given effect to, as it stands See Rossouw v Sachs 1964(2) SA 551 A; Ebrahim v Minister of the Interior 1977(1) SA 665 A.. However, the intention of the Legislature is also clear and regard must be had thereto See Secretary for Inland Revenue v Sturrock Sugar Farm (Pty) Ltd 1965(1) SA 897 A at 903.

26.     

The preamble to the 2001 by laws refers to the “legitimate interests” of the “community of the City of Johannesburg” in ensuring that signs “do not constitute a danger or nuisance to members of the general public”, “that signage or advertising ….is aesthetically pleasing…” . The preamble also refers to the “legitimate interests” of “individual businesses” in the proper advertising of their businesses and products. The preamble states that “it is the duty of the Council of the City of Johannesburg to balance the competing interests in a fair, equitable, flexible and responsible way”. Sub clause 2(1) states in no uncertain terms “No person shall display or erect any advertising sign or hoarding ….. without first having obtained the written approval of the Council…..”.

27.     

Quite clearly the Legislature envisages that ‘competing interests’ will be ‘balanced’ in accordance with certain criteria. The Legislature has expressed its command that no signs shall be erected or displayed without the written approval of the Council. The Legislature has imposed the duty upon the Council both to balance the interests pertaining to the erection and display of signs and to grant or withhold approval thereto. The Legislature has, however, given no discretion to the Council in respect of ‘prohibited signs’ which are detailed in clause 5. No person shall permit such signs to be erected or displayed. That now includes the appellant’s sign.

28.     

It would be an absurdity for the Legislature to enact by laws which control the erection and display of advertising signs and hoardings and then to allow a permanent exemption from such by laws to a sign which is specifically identified as being in contravention of such by laws. It would be absurd because then the Council would not be able to comply with its duty to ‘balance’ ‘competing interests’. It would be inconsistent because all the other signs on zoned residential property are expressly prohibited except for this one sign . It would be anomalous for an exemption to be granted on a permanent basis in circumstances where the sign was only ever approved for a limited period under earlier, now repealed, legislation. It would visit hardship upon those members of the ‘community’ of Johannesburg who find this sign in a residential area where the Legislature has determined that a total ban on such signs will apply to residential areas.

29.     

In short, the reading of sub clause 4(3) for which the appellants contend must yield to the intention of the Legislature because such meaning would lead to “some absurdity, inconsistency, hardship or anomaly which, upon consideration of the enactment as a whole, the Court is satisfied the Legislature could not have intended” per Stratford JA in Bhyat v Commissioner for Immigration 1932 AD 125 at 129.

30.     

Sub clause 4(3) grants an exemption in order, as this judgment has attempted to show, to reconcile two contradictory and destructive legal states – non compliance versus lawfulness. If sub clause 4(3) did not exist then, in certain circumstances such as this, sub clause 43(2) would be a “nonsense” See R v Shoolman 1937 CPD 183 at 186. This exemption contained in sub clause 4(3) enables sub clause 43(2), which is itself a validating sub clause, to be validated.

31.     

I am satisfied that sub clause 4(3) was intended to assist in the preservation of existing rights which, in the present case, endure from 1 July 1999 to 30^th June 2002 . I am satisfied that sub clause 4(3) was, in it’s context, a sub clause “calculated to preserve existing rights during the transitional period” .

32.     

Sub clause 4(3) was not enacted to grant new rights. It could therefore never have been intended by the Legislature to grant to the appellant a number of new rights all of which are antagonistic to the very nature of the by laws themselves. To agree with the submissions of the appellant would be to grant new rights to appellant greater than those granted by the Council on 1^st July 1999.

33.     

Firstly, the 1999 three year approval would be extended before it had even expired. Secondly, whereas the 1999 approval was subject to no less than fourteen different conditions, now permission to display the sign would be subject to no restrictions save that it not be moved, altered or amended. Thirdly, the 1999 written approval was granted for a specified period of three years only but would now be subject to no limitation as to time save only the desires of the appellants and the endurance of the sign. Fourth, appellants had previously, like all persons desiring to erect and display signs which were not expressly prohibited, been required to make written application to the Council for permission but would now never again be required to make application for approval.

34.     

The result would be that this sign would become completely incapable of regulation by the Council which would only be able to ensure that it was maintained and not moved, altered or re-erected. Permission to display a sign for a period of three years only has, so it is argued by the appellants, been transformed into a blanket exemption from the need to obtain approval for time and all eternity. The only reason that this sign is to be treated in this manner is because this sign is one which is expressly prohibited by the current by laws. If this had not been the case then the provisions of sub clause 4(3) would never have been applicable thereto. The new rights would, on this argument, therefore be created in favour of a sign only because it is one which is non compliant with and totally repugnant to the current by laws .

35.     

However, the wording of the second proviso or jurisdictional fact in sub clause 4(3) is instructive. What was required was that the sign be “lawfully displayed” on the 30^th November 2001. The appellants’ display of the sign on that date was lawful only because it was in accordance with the law See the definitions of “lawfully” in the Oxford English Dictionary.. That which rendered the display of the sign lawful or permissible and justified was the specific approval granted on 1^st July 1999.

36.     

The 1999 approval was carefully circumscribed by a number of conditions including the three year time period. Lawfulness is by definition a status acquired by adherence to certain boundaries. For the appellants’ to ‘lawfully’ display the sign could only mean that they displayed the sign subject to the full kaleidoscope of the law which they sought to invoke – the fourteen conditions creating and regulating their approval of 1^st July – including the time period. Inherent in the lawfullness of the display was the limitation of time – from the 1^st July 1999 to 30^th June 2001.

37.     

It is unfortunate that the sub clause made reference to the one date only, ie “the day immediately preceding the date of commencement of these by laws ” and failed to spell out that the exemption endured only for the period that the sign was lawful, i.e. the duration of the lawfulness. The respondent has asked the court to read into sub clause 4(3) the additional words “for so long as the sign is lawfully displayed”.

38.     

I am satisfied that it is possible for this court to read sub clause 4(3) in a manner which gives effect to the intention of the Legislature to preserve rights during the transitional period, to grant no greater rights than already existed and to empower the Council as envisaged by the Legislature in enacting these by laws Such reading requires the court to ascribe value and efficacy to the word “lawfully” on the 30^th November 2001 and all days thereafter. The wording suggested by the respondent achieves this.

39.     

Such interpretation satisfies the purposive approach to interpretation of statutes.

Conclusion
40.     

In the result the appeal is dismissed with costs.

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K SATCHWELL