Clearing clutter, removing illegal or dangerous operators and retrieving revenues owed to it are the main aims of the City of Johannesburg, which wants to enforce its latest amended draft out of home bylaws. But several industry players who attended a recent workshop around the regulations have questioned whether they pass constitutional muster. Michael Bratt investigates.
One section of the amended bylaws in particular has some industry players concerned. The part in question states, “An authorised City official may order that a billboard be taken down, if they deem it to be illegal or a danger, without a court order.”
Jinja Outdoor’s Edward Vorster, speaking in his personal capacity, questioned just how constitutional this statement was and whether the City would change it, without a court battle, if they were challenged. A representative from the City’s legal department said national legislation needed to be considered when drafting bylaws, which cannot overlap with national legislation. Should anyone pick up anything contrary to national legislation, they should submit comments. If there were problems, the bylaws would be accordingly amended prior to promulgation.”
Not new regulations
The Media Online spoke to Jack Sekgobela, operations manager for outdoor advertising at the City of Johannesburg, and raised the question of the constitutionality of the bylaws. He echoed the sentiments of the legal department representative. “When you have got a municipality and the bylaws that come from the Systems Act, they flow from national law, so therefore they are not against the Constitution. And in fact these bylaws that are being amended, we’re talking about existing bylaws that have been there for many years. From 2009 up until now, there’s never been a challenge before concerning who should actually execute the mandate in regard to the bylaws. But we are in the right.”
He added, “When we talk about this bylaw, the intention really is that we cannot tolerate 78% of illegality in the City; something has to be done. The existing bylaws were never declared illegal. The existing bylaws were never challenged in a court of law. In fact, some of the media owners benefited from the very bylaw, they have been receiving approvals, and I don’t know why today they’ll turn around and say ‘well this law is unconstitutional’”.
Defining an authorised official
Some of the confusion could be around the lack of clarity on who actually qualifies as an authorised city official. “If I see a billboard that is falling I don’t need to look for a structural engineer. That is imminent danger. If I don’t do something about it that is going to endanger members of the public … The authorised official talks to someone who can actually be able to observe and report, but it can also talk to a building inspector, urban inspector, town planner, engineer etc,” Sekgobela explained.
Progress so far
Asked a couple of weeks after the workshop what action he had taken, Vorster said the company had presented its concerns with the draft bylaws to Council before the deadline of 30 June. “We have not had any response as yet,” he said.
Vorster is adamant the draft bylaws as currently read conflict with other “superior legislation”. And it seems that others share his view. “I’ve been approached by an individual who represents a number of big companies which are landlords that has created a fund and that wants to have the draft bylaws tested in court,” he said.
The courts are still the final arbiter
Not everyone is as outright as Vorster about their views on the constitutionality of the bylaws. Joyleen Mahanetsa, CEO and founder of Outsmart Outdoor Advertising, said the company did not in any way support or condone illegal advertising. “… as such we are in support of all lawful initiatives aimed at curbing and preventing illegal outdoor advertising. So while we accept that a duly appointed city official may be in a position, in certain specific circumstances, to issue a notice to remove, we similarly accept that if that decision is challenged then our courts need to be the final arbiter in terms of as to whether or not the decision of the City is legally and factually sound,” she said.
“In the circumstances we are not concerned as our understanding of the bylaws is that while the City has the right to lawfully regulate the outdoor advertising industry the City cannot, in the event of a decision being challenged, be both judge and jury and their decisions are always subject to being challenged in court,” said Mahanetsa.
She said the company held the view that issues of compliance should not be taken for granted. “We are, after all, an industry of professionals and as such media owners should be made to take full responsibility for any outdoor advertising that is ultimately found to be illegal.”
Mahanetsa said if their understanding of the bylaws is correct then they are not unconstitutional as they do not allow any City official to take the law into their own hands, as in the event of there being a dispute about the legality or illegality of the billboard. A billboard cannot simply be removed if the decision is challenged as it would fall to the Courts to determine its legality, or not. Asked if her company would support litigation challenging the bylaws Mahanetsa said, “Outsmart Outdoor Advertising is not in the business of litigation even it was to advance the interest of the sector, but where our personal interest is unduly threatened we shall always do the right thing.”
While she does not believe the bylaws are unconstitutional, Mahanetsa does have some concerns around them. She believes that the current draft bylaws do not go far enough in addressing many OOH market changes which includes innovation and technology, digital billboards, urbanisation and evolving commercial nodes in the townships. “The bylaws are also lacking insofar as to how they would assist SMMEs and engendered operators and provide them with easier access to the market,” she said.
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