On Friday 15th January a colossal poster with a simple, three-worded message appeared on the side of the Overbeek Façade in Kloofstreet, Cape Town. The message?
The message is undoubtedly controversial and politically outspoken. But is this banner illegal?
The City of Cape Town has declared the erection of this banner illegal. As such the matter has been handed over to the National Prosecuting Authority. The alleged illegality of the banner is not based upon the content of the banner but rather the failure to follow the correct procedure.
Any party wishing to advertise outdoors in Cape Town must apply to the Municipality in writing. It is the submission of the City of Cape Town that the erection of the banner was effected without the necessary approval of the Municipality, as is required by the Outdoor Advertising and Signage By-Law.
Section 1 of the Outdoor Advertising and Signage By-Law stipulates as follows:
“(…)no person shall display any advertisement or erect or use any sign or advertising structure for advertising purposes without the Municipality’s approval in terms of this By-Law and any other applicable legislation.”
Non-compliance with any provision of this By-Law is considered an offence which could lead to a fine or imprisonment. The City of Cape Town issued an official statement in which they emphasized that they will not tolerate any contraventions of by-laws.
When asked about the banner’s message, Priya Reddy, representative of the City of Cape Town, said the following:
“The by-law does not make provision for pre-approval of the content/messages of outdoor advertising and signage on receipt of an application.”
The By-Law focuses on the technicalities of outdoor advertising with due consideration of the locality of the signage and the impact of such signage on the surrounding area. However, the following factor for the disapproval of signage applications is included in the list of criteria contained in the By-Law under Section 10.8.2:
“will display any material or graphic which, whether in form, content or both, may reasonably be expected to cause offence to the public or an identifiable class of persons;
The contentious message of the banner will, however not be the basis of the National Prosecuting Authority’s conviction of the anonymous private party. This is due to the fact that the non-compliance of the By-Law lies in the failure to submit an application to the Municipality. Consequently the interpretation of Section 10.8.2 will not be placed under scrutiny just yet. This does not mean that it won’t be relevant to potential future litigation surrounding the issue of freedom of expression.
The company which erected the billboard, Independent Outdoor Media, submits that it acted on instructions by a “private initiate” who claimed the act was for the sake of freedom of speech. This modern day George Orwell shall remain unidentified prior to the hearing. The #ZUMAMUSTFALL movement, being the obvious suspect, has denied any involvement in this particular banner (to their disappointment.
Whether in the realms of politics or other propaganda, take heed of our laws relating to outdoor publications and plan your actions within the allowed parameters, to avoid comebacks.