The City of Joburg and the Industry, represented by SAPOA and OHMSA, have reached an agreement to suspend the enforcement of the 2018 by-laws until a court case challenging various aspects of the by-laws has been heard by the Johannesburg High Court. This agreement was made an order of court by Deputy Judge President Majapelo of the High Court on Tuesday 29 May 2018.
The by-laws were adopted in March this year by CoJ. The South African Property Owners Association (SAPOA) and OHMSA joined by Abland, a property owner and Jinja Outdoor issued urgent court papers challenging the adoption of the 2018 By-laws.
In the court papers which is over 500 pages long, it is contended that:
- there was no proper public participation process done by CoJ as it ignored important objections raised by the industry;
- certain provisions of the By-laws are unconstitutional as it infringes certain rights contained in the Bill of Right enshrined in the Constitution;
- No approval of the Minister of Trade and Industry, as required by the National Building Regulations, was obtained prior to the promulgation.
The City agreed to suspend the enforcement of the 2018 by-laws until the case is heard. The case will be heard on 15 and 16 October 2018.
The legal challenge is based on the following:
- The promulgation of the by-laws will immediately and retrospectively criminalize hundreds of private property owners with unapproved advertising signs on their property. This will happen without them having the opportunity of arranging their affairs to try and comply with the new by-laws. It should also be considered that the same sanction does not hit the city itself who also, by its own admission, has hundreds of unapproved billboards on its property.
- The city, as a commercial role-player in the outdoor advertising arena, is conflicted between its regulatory function and its commercial interests, therefore the regulatory control should be divested to an impartial decision-making body and not to an official.
- The enforcement measurements, which are severe, can be imposed arbitrarily by the officials playing the role of investigative, prosecutorial, adjudicative, and sheriff’s functionaries. This is anemic to the rule of law.
- Furthermore, the inclusion of the National Building Regulations Act of 1977 in the by-laws will require, in terms of Section 28(9) of the said Act, that the Minister of Trade and Industry must approve these by-laws and the absence of such an approval will render the by-laws void.
CoJ till has yet to file its answering papers which is due in July 2018.