The Western Cape High Court’s January 2022 decision that the outdoor advertising signs and structures on the Overbeek Building’s façade at the intersection of Long and Kloof Streets are unlawful and that it is the responsibility of the City to control them has been upheld by the Constitutional Court.
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In January last year, the Western Cape High Court ruled the outdoor advertising signs, at the top of Long Street, as unlawful after the owner of IOM, Brent Dyssel, erected them over the apartment building and argued that it was his freedom of speech.
The signs were erected on the building with the words “Stay Home” and “Mask Up” during the hard Covid-19 lockdown.
IOL reports that the city’s previous advertising and signage by-laws expired in 2005, but the advertising structures and signs had already been put up for a while. Nevertheless, they were still in place.
On Friday, the Constitutional Court ruled 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.
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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 counsels, in a unanimous ruling written by Acting Judge Yvonne Mbatha of the Constitutional Court.
IOM was mandated by the court to take down the illegal signs as a result of the Constitutional Court’s decision.
IOM had objected to a request for confirmation that the City had made to the Concourt.
A disagreement between the City and IOM over advertisements on the Overbeek building in Cape Town gave rise to the constitutional challenge.
The Overbeek Building’s Body Corporate leased two on-site advertising spaces to IOM in 1999 and 2000.
The City authorised IOM to advertise on the two spaces for five years, in terms of the by-laws applicable at the time.
These authorizations expired in November 2005 and March 2004. Despite this, IOM kept displaying advertisements on the building in violation of the City’s bylaws. The City attempted to enforce compliance in various ways without success.
In order to get the building’s body corporate and IOM to take down the unauthorised advertisements, the City filed a lawsuit against them in the high court in 2016.
A similar application filed by the body corporate to have the advertisements removed was combined with the City’s application in 2021.
IOM filed a counter-application in order to have the City’s by-laws declared invalid for not adhering to Section 29(8) of the Act, which mandates that by-laws relating to ‘the erection of a building’ must first receive approval from the minister of trade, industry, and competition.
IOM argued that the Advertising By-Law should not be applied in criminal proceedings even if the section was declared invalid with retroactive effect to the day the Constitution entered into effect. This is because the right to a fair trial included the right not to be convicted for conduct that was not unlawful at the time it was committed, according to IOM.
The judge ruled that the minister’s veto was ‘constitutionally impermissible’ during the high court case, and the Constitutional Court agreed.
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