A group of out of home media owners have joined forces and hired lawyers to rebut controversial comments made by the City of Johannesburg’s Jack Sekgobela. Sekgobela claimed the City had tightened up its advertising by-laws, accused outdoor media owners of illegally erecting billboards on hijacked buildings, claimed the City had scored a successful judgment against Samsung over an illegally-placed billboard and threatened to lay criminal charges against landlords and media companies, including media agencies and advertisers.
But Kuilman Mundell & Arlow Attorneys, lawyers for the out of home companies, accused council of conflict of interest and abusing the Public Access to Information Act, as well as peddling incorrect legal information in order to intimidate out of home media players.
They said the council’s conflict of interest led to its “aggressive stance to other outdoor advertising companies”.
“The City Council of Johannesburg is the largest landlord of outdoor advertising sites in the City and as such is the dominant player in the outdoor advertising industry. It finds itself in rather unusual situation of being a dominant player who is also responsible for regulating the industry and there is consequently a clear conflict of interest. It goes without saying that it is in the interests of the City of Johannesburg to prevent signs from being erected on other sites in the City in competition with its own advertising sites”, they said.
The fracas arose after out of home media trade website, Wonsa, published a story in mid March in which it quoted the City saying it had, “toughened up its bylaws to classify illegal signs as a serious crime, the same as hijacked buildings”. Wonsa was following up on several stories, one of which was published on the City of Johannesburg’s own Joburg.org.za, claiming new bylaws had taken effect. The Joburg.org.za story quoted Sekgobela, who is manager of outdoor advertising in the city’s planning department, saying Johannesburg loses millions annually due to out of home advertising. He said the city was “getting tough on several offending companies – including top international brands – in a new drive to avert loss of revenue and possibly recoup some of the lost revenue as well as ensure compliance”. The story went on to say, “He says with the old by-laws, the offenders were able to get away with infringements because of the loopholes and gaps which existed and were exploited by advertising companies”. And it quotes him saying, “The offenders would deliberately ignore our officials when approached to find amicable solutions. The court processes are lengthy, and even when the matter eventually gets to be heard, these companies get a slap on the wrist”.
He said with revised bylaws, the city could “now go the civil route and instituting civil claims against the offenders. The City has also started laying criminal charges against the landlord [of the premises on which the billboard is erected], the advertising agency, the company being advertised, and its directors and shareholders”. He also said his department was closing all the loopholes and “drawing up a list of the illegal signs, which we will hand over to the South African Revenue Service to check if they pay tax”.
Wonsa questioned Sekgobela’s claims, asking whether they were true. It asked Sekgobela for a copy of the by-laws and in return “only received a copy of the by-laws promulgated in 2009 – unchanged since its proclamation in 2009. Therefore there are no new advertising by-laws as claimed”. It also quashed the story on a successful claim against Samsung. “The other claim about a successful judgment in the Supreme Court of Appeal against Samsung could also not be verified,” Wonsa said. “The SAFLII database – the biggest database of judgments of the SCA and the SCA’s own database do not have judgments on outdoor advertising in the past six months leave alone anything against Samsung. Mr Sekgobela was asked for details but at publishing time nothing was forthcoming.”
Sekgobela says his facts have been “misinterpreted” by the media. He said the reason the Samsung case did not show up on SAFL11 database is that the City took the media owner – the owner of the site – to court, and won. “… the Samsung sign had to be removed as a result of the outcome of this case. Samsung did not erect the sign; they advertised on an illegal sign”. On the subject of “illegally erected signs”, he said this has been “itemised in a Committee run by CRUM, a division of the COJ, and the NPA, Hawks as well the SAPS have pledged support in the case where criminal charges are laid against transgressors”. He said” transgressors on problem properties are now dealt with in the same manner as illegal outdoor advertising contraventions”.
On Friday, lawyers Kuilman Mundell & Arlow issued a statement on behalf of various outdoor advertising companies saying they had been instructed to respond to Sekgobela and the City of Johannesburg.
The lawyers said there is nothing in Johannesburg by-laws “which in any way associates problem buildings with outdoor advertising and indeed it is difficult to understand any logical link between the two,” they said.
“The statement made by Mr Sekgobela regarding action in these circumstances appears to be an attempt to intimidate advertisers into believing that the Council has certain powers in terms of the Problem Building By-Laws which it intends exercising against advertisers whose advertisements are flighted on advertising signs which the Council believes are not legal. We confirm that the Council does not have any such power in terms of its Problem Building By-laws nor for that matter, its Outdoor Advertising By-laws.”
They said Sekgobela was “incorrect” that Council can institute criminal charges against landlords and advertisers. “Any prohibition contained in the by-laws (subject also to provisions relating to exemptions) only restricts the erection and maintenance of outdoor advertising signs and as such applies only to media owners, not advertisers nor media agencies who place advertisements with media owners,” they said.
“Any attempt by the Council to institute legal action against any other party will constitute malicious prosecution. Mr Sekgobela has already been informed that the municipality does not have such power to lay criminal charges nor institute legal action against advertisers and media agencies and again it appears that he is simply trying to intimidate such persons.”
The city has not reviewed its Outdoor Advertising By-laws since 2009, they said. “The Legal Department of the Municipality has indicated over the last few months that they intend publishing new by-laws for public comment but as yet, notwithstanding numerous enquiries, no such by-laws have been adopted by Council nor published for comment and as such the 2009 bylaws remain in place”.
They said while it was correct the Council obtained a judgment against a media company which had flighted a Samsung advertisement, it is “important to stress that Samsung were not cited in these proceedings and were consequently not party to such proceedings since, as stated above, there is no link between the advertiser and the prohibition contained in the by-laws”.
The lawyers said they were surprised that Sekgobela said all statement are cleared by the city’s legal department before being issued given the number of “glaring errors in law contained in Mr Sekgobela’s statement and his prior statements which gave rise to the original WONSA article. If it is indeed correct that Mr Sekgobela does consult with the Legal Department of then presumably he has already been advised by his Legal Department that the Council does not have the powers to prosecute nor institute legal action against advertisers and media agencies as threatened by him”.
They also said the council’s outdoor advertising department was in “disarray”.
“In May 2014 the city’s Virginia Zondi sent an email to the outdoor advertising industry apologising for the ‘lack of capacity’ that has ‘inadvertently given rise to a backlog in the processing and finalisation of applications’. A large portion of the blame for the extent of illegal advertising in the city must be placed on the
‘incapacity’ of the city’s Outdoor Advertising department to process outdoor advertising application competently and timeously”, they said.
“Members of the outdoor advertising industry shall shortly be challenging the municipality’s unscrupulous fee structure through litigation,” the lawyers said.
They warned out of home media players to be on the lookout for proposed new by-laws as the municipality would be in a position of “dominant player in the market as well as prosecutor, judge and jury insofar as enforcement of by-laws are concerned which will lead to an extremely unhealthy position and great unrestricted scope for abuse”. They also accused the council of abusing the Promotion of Access to Information Act as it has “repeatedly prevented certain outdoor advertising companies from gaining information to which they are legally entitled, no doubt in order to protect its dominant position in the market”.
IMAGE: Johannesburg street / Wikimedia Creative Commons
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