Case CCT36/22
[2023] ZACC 17
Hearing Date: 03 November 2022
Judgement Date: 23 June 2023
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Friday, 23 June 2023, the Constitutional Court handed down judgment in an application for confirmation of a declaration of constitutional invalidity made by the Western Cape High Court, Cape Town. The Constitutional Court confirmed the order of constitutional invalidity, holding, as did the HighCourt, that section 29(8) of the National Building Regulations and Building Standards Act 103 of 1977 (Act) is constitutionally invalid because it requires a municipality to submit by-laws relating to “the erection of a building” for ministerial approval before they can be validly promulgated.
The application for confirmation was brought by the City of Cape Town (City) and opposed by Independent Outdoor Media (Pty) Ltd (IOM), a company engaged in the display and management of advertising signs. The Minister of Trade, Industry and Competition (Minister), responsible for the administration of the Act, did not oppose the application, but made submissions on the interpretation of the Act. Out of Home Media South Africa NPC (OHMSA), a non- profit company that represents the interests of media owners in the advertising industry, was admitted as amicus curiae and made written submissions.
The constitutional challenge arose from a dispute between the City and IOM regarding advertisements on the Overbeek building in Cape Town. In 1999 and 2000, the Body Corporate of the Overbeek Building leased two advertising spaces on the building to IOM. The City authorised IOM to advertise on the two spaces for five years, in terms of the by-laws applicable at the time. These authorisations lapsed in March 2004 and November 2005 respectively. Notwithstanding, IOM continued to display advertisements on the building, in contravention of the City’s by-laws. The City took various steps to enforce compliance, but they were unsuccessful.
In 2016, the City brought an application in the High Court against the Body Corporate of the Building and IOM for the removal of the unauthorised advertisements. In 2021, the Body Corporate brought a similar application in the High Court for IOM to remove the advertisements. These applications were consolidated. IOM brought a counter-application seeking a declaration that the City’s by-laws are void because they were promulgated without complying with section 29(8) of the Act, which requires by-laws that relate to “the erection of a building” to be approved by the Minister before promulgation. The City challenged the constitutionality of section 29(8) of the Act.
The High Court held that section 29(8) grants the Minister a constitutionally impermissible veto power over by-laws that relate to the erection of a building. It held that section 29(8) violates the independent and exclusive legislative authority of municipalities and the mutual respect provisions of the Constitution. It further held that Parliament’s competence in respect of Schedule 4 Part B functional areas (in this case, building regulations) is limited to a monitoring, supervising and support function. Section 29(8) exceeds this function and is, accordingly, inconsistent with the Constitution.
In this Court, the City argued that section 29(8) is unconstitutional for various reasons including: that it infringes the legislative autonomy of municipalities to make and administer by-laws on matters listed in Part B of Schedules 4 and 5 of the Constitution; that it exceeds Parliament’s competence in respect of building regulations; and that it offends the separation of powers doctrine because the making of by-laws falls within the exclusive terrain of the legislative branch of government (in this case, a municipal council), and the Minister’s power to veto by-laws is an unconstitutional infringement by the executive into the municipal legislative sphere.
IOM argued that even if section 29(8) is declared invalid with retrospective effect to the date that the Constitution came into force, the Advertising By-Law should not be applied in criminal proceedings because the right to a fair trial includes the right not to be convicted for conduct that was not an offence at the time of its commission. The Minister argued that the Act can be interpreted in a constitutionally compliant manner and, therefore, a declaration of invalidity can be avoided. He submitted that section 29(8) is only constitutionally offensive if ‘billboard or outdoor advertisement signage’ is a “building” for purposes of the Act. He reasoned that if “building” in the Act is interpreted more restrictively than the Act defines it, a declaration of constitutional invalidity is unnecessary on the facts of this matter. OHMSA supported the confirmation of the order of invalidity but goes further, arguing that the Act is unconstitutional in its entirety because it usurps municipalities’ legislative competence in relation to building regulations.
In a unanimous judgment penned by Acting Justice Mbatha, the Constitutional Court confirmed the order of constitutional invalidity, holding that section 29(8) of the Act is inconsistent with the Constitution and invalid. Much of the Court’s reasoning mirrors that of the High Court. The Constitutional Court held that the Constitutional framework, made up of section 151(2) of the Constitution, which vests the executive and legislative authority of a municipality in its Municipal Council; section 156(2) of the Constitution, which empowers a municipality to make and administer by-laws for the effective administration of matters falling within for Part B of schedule 4 and 5 of the Constitution, and section 43(c) of the Constitution, which provides that the legislative authority of the local sphere of government is vested in the Municipal Councils, makes it clear that Municipal Councils are authorized to legislate on matters falling within Part B of Schedule 4 and 5 of the Constitution, with the national government performing only a supervisory function in respect of these matters.
The Court held that section 29(8) of the Act gives the Minister the power to veto legislation that falls within the competence of local government. This, the Court held, goes beyond the constitutionally envisaged role of national government in matters falling within Part B of Schedule 4 of the Constitution, rendering the section constitutionally non-compliant. The Court added that this non-compliance would not be remedied were “building” to be interpreted restrictively, as argued for by the Minister. This is because section 29(8) deprives municipalities of their legislative autonomy in respect of all by-laws that relate to the erection of a building, not only those pertaining to the display of advertisements.
The Court found it unnecessary to limit the retrospectivity of the order of invalidity due to the constitutional protection offered by section 35(3)(l) of the Constitution, which provides that a fair trial includes the right “not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed”. Similarly, the Court found it unnecessary to suspend the order of constitutional invalidity. It did so for two reasons. First, because several outdoor advertisers have been flouting various outdoor advertising by-laws for a period, and second, because the majority of outdoor advertisers are aware of the constitutional challenge to section 29(8), evidenced by IOM’s participation in the matter. Thus, the Court reasoned, advertisers are able to bring their conduct in line with this judgment soon after it is handed down.
The Court struck IOM’s appeal from the roll on the basis that it was not properly brought before the Court. IOM did not seek leave to appeal directly to the Constitutional Court and its attempt to locate its grounds of appeal within the Court’s section 172(2)(d) jurisdiction (the Constitutional Court’s jurisdiction to vary and/or confirm orders of constitutional validity) was unsuccessful. IOM was held to pay the applicant’s costs in this purported appeal.
In the result, the High Court’s order of constitutional invalidity was confirmed, section 29(8) of the National Building Regulations and Building Standards Act was declared unconstitutional and invalid, IOM’s purported appeal was struck from the roll, and IOM was ordered to pay the applicant’s costs in respect of its purported appeal..
The Full judgment here
