Billboards along Johannesburg’s M1 and M2 highways are illegal. Finish and klaar. That’s the opinion of Mayor Parks Tau’s senior legal advisor. Council has undertaken to review all its by-laws in early 2013.
“The advertising signs on the M1 and M2 highways are deemed illegal and the owners of such advertising mediums have already been informed, as per a Mayoral Committee Resolution, that it must be removed. Failing which, the City will initiate legal action,” Alwyn Nortje told TheMediaOnline.
The action throws into sharp relief the problems facing the out of home industry in Gauteng. The problem is that each municipality within the province has a separate set of by-laws relating to billboards.
“Johannesburg by-laws prohibit gantries whereas these are permitted in Tshwane. The Durban by-laws are extremely old and to not take into account new advertising formats,” says lawyer Patrick Mundell of Kuilman Mundell and Arlow.
“In addition to the by-laws, most municipalities have policies which determine areas of minimum, maximum and partial control which determine what signage opportunities are available in such areas. Certain municipalities (in particular eThekweni/Durban) have extremely restrictive policies and it is well nigh impossible to obtain approval of large third party advertising signs anywhere in Durban,” he says.
Mundell is currently handling a case for Primedia’s Wideopen Platform involving the Johannesburg City Council and a Samsung billboard near the off-ramp to William Nicol Drive. The Citizen recently reported that the Council had cited two billboards, the Samsung structure and another one, an ad for Capitec Bank erected by Pezulu Outdoor, near the on-ramp from the M1 to Grayston Drive, as flouting the city’s by-laws. Spokesman Dudu Lushabe accused Samsung and Capitec of being “some of the biggest transgressors of our rules”.
Nortje concurs. “The Samsung and Capitec boards are illegal as they don’t have approvals in terms of the by-laws. Plain and simple. The City also wants to make it clear that we don’t ‘target’ certain signs. If any sign is illegal for whatever reason within the City, law enforcement action is taken subject to available budget. This entails an application to the High Court for the necessary relief,” he says.
The local authorities normally enforce the by-laws by means of application to the High Court to obtain an interdict.
Lushabe also said the city was reviewing its advertising by-laws, which Nortje confirms. “The City will embark on a review process of its Outdoor Advertising By-laws early in 2013. This review process will not have a major amendment of the by-law as a result. The main intention is to strengthen the City’s law enforcement powers in terms of the by-law itself,” he says.
Wideopen Platform is disputing the City’s view that the Samsung board is illegal. “This sign is the subject of litigation between Wideopen Platform and the City of Johannesburg and the dispute centres around the interpretation of the structure erected on the property. The structure has been erected as a safety screen and the issue therefore is whether or not it falls within the scope of the by-laws since it is not a structure intended primarily as an advertisement. The matter is still undecided,” he says.
The sign is still standing.
Willem Krog, director of Pacific Breeze 353 and publisher of the WONSA newsletter, has years of knowledge of the outdoor industry. As the managing director of Ad Outpost (now retired) he understands the space, and its challenges.
He believes there is an important issue regarding Council’s policing of billboards that needs to be raised.
“The city councils are increasingly becoming referee and player. This is not constitutionally acceptable. How can the city by objective in my application on private property if they are actually viewing the pavement in front of the private property as a potential source of income themselves? This renders the stipulation in the by-laws that the city council is the approving authority possibly unconstitutional,” he says.
DA councilor Christo Botes last year accused Mayor Parks Tau of turning a blind eye to illegal billboards. He said the MD of the Johannesburg Property Company entered into lease agreements “with at least three companies that are worth R190 million. The lease agreements will allow these companies to extend the leases of current illegal and banned billboards, which are currently erected on Council property.”
Botes said in a statement that the ”Mayoral and the Development Planning Committees in January 2011 highlighted at least 200 illegal billboards in the city. The officials informed councillors at these meetings that the city did not have the funds or the capacity to enforce the by-laws. However, while there are no funds to enforce the by-laws, the Council seems to be very happy to derive continuous income from the illegal billboards”. Botes did not respond to emails from TheMediaOnline.
Nortje was not prepared to elaborate on or clarify the situation. “From the outset I am not entirely convinced that you are entitled to this information without going through the formal ‘access to information’ procedure and will, therefore, only divulge such information which I deem you are entitled too without going through a formal process,” he said.
It doesn’t seem as if the by-laws or enforced across the board. As Nortje says, the aim of the review is to strengthen the City’s ability to enforce the law – when the budget allows.
Krog says the by-laws are enforced, but that there are issues. “Remember Johannesburg sits with its fourth set of by-laws since 1997. Boards that were allowed in 1997 are no longer allowed. That might create the impression that the by-laws are not enforced because boards are in contravention of the current by-laws but it were approved in terms of a previous by-law. It is however confusing for a newcomer.
“The transgression of by-laws has become a bigger issue for competitors that it is for the city councils. Billboards are a minor thing in the life of the city council but competitors take the smallest transgression out of context and pressure is put on the city council to enforce. The sanctions are not severe and that is how it should be,” he says.
Mundell believes, however, that the City isn’t even-handed in its dealings with outdoor companies. “Application fees charged by municipalities are also exorbitant and bear no relation to the value of the service provided by the municipality in processing the application. It is far cheaper to have a building plan for a large complex building considered and approved than it is to have an advertisement on a simple scaffolding structure considered and approved (or refused) by the Council. The exorbitant fee discourages small players from entering the market and, in my opinion, encourages illegal signs,” he says.
What’s more, the turnaround time in processing applications takes too long. Mundell says the problems outdoor companies face lie “not so much with the content of the by-laws but rather the manner in which they are administered. Wideopen would like to see applications that are submitted to the municipality being considered timeously and consistency in the decisions in accordance with the principles contained in the Council policies and by-laws with proper reasons being given for refusal.
“Johannesburg has in the past had a tendency to simply quote extracts of by-laws for reasons for refusal of applications, without correlating the provisions of the by-laws specifically to the circumstances of the application. Consequently it is difficult for outdoor advertising companies to do proper planning as to where to submit applications, which are likely to receive Council approval. It is important for outdoor advertising companies to try and submit applications in the correct locations since they do not want waste application fees,” he says.
The last thing the industry wants is over-regulation, but clarity is needed, says Krog. He says there is no provision in the by-laws on the distance from the curb that billboards are allowed to be placed. “It is only in Cape Town where such provisions exist,” he says.
“The more fundamental question is: are the by-laws applicable to these roads (M1, M2)? This is a more vexing question at the moment. It is not automatic that the City Council has the jurisdiction over provincial and national roads, or airports and railway lines or stations, for that matter. This is an issue that needs either legislation or court case to clarify.”
Krog believes powers currently held by the Council should be transferred to an independent body, and that the industry is already over-regulated. “It’s ironic,” he says, “that the strictest city council – Cape Town – has the first bystander death in the history of South Africa as a result of an advertising sign collapsing.”
The laws in a box, by Patrick Mundell
What is the law relating to advertising signs on the on-and off ramps of the highways, gantries erected across the highways and other main roads, signs on traffic islands, and signs within close proximity of traffic signals and residential houses.
The by-laws have specific provisions relating to on and off ramps and in this regard I attach an extract from the by-laws, [see illustration] which reflects the prohibited areas in respect of on and off ramps of motorways.
There are other circumstances where distances between signs are prescribed. In terms of section 6.2(a) of the by-laws advertising signs need to be located a minimum distance of 100 metres away from each other on the same side of the road and in terms of section 6.3(c)(iii) of the by-laws advertising signs should be located at least 50 metres from the centre of an intersection except for advertising signs flat against a building and construction site advertisements.
Gantries are prohibited in terms of the Johannesburg by-laws but are permitted in Tshwane.
Advertisement signs are prohibited on traffic islands in Johannesburg and there are certain limitations in respect of the proximity of signs to traffic signals and residential houses, namely section 6.3(b) which provides that ‘no advertising sign may obscure or interfere with the traffic sign and section 6.1(g) which provides that a sign should not have detrimental visual impact on any residential property within the area.
It should be borne in mind that certain signs which would, on the fact of it, contravene the by-laws can be permitted in terms of the exemption clause namely, section 8.1(j) of the by-laws, if such signs are part of a Council-approved scheme which is deemed to be of local, provincial or national interest.
What is the distance from the kerb that billboards should be on major roads such as the M1 north and south, or the highway to OR Tambo?
I am unaware of the by-laws prescribing any particular minimum distance that billboards need to be from the verge of the road but they are not permitted to encroach into the roadway itself and again refer to the provisions relating to road traffic safety in particular, sections 6,3(b), 6.1(c) and 6.3. (c). Of the by-laws,