On 11 September 2014, Mayat J Judge of the High Court of South Africa directed inter alia, that Continental Outdoor Media (“Continental”) reinstate the Palestine Advertising Campaign (“the Advertisement”) on the billboard erected by Continental alongside the highway near Empire Road on the M1 N, or to allocate to the applicants, a comparable alternative billboard, at a comparable site. The reinstated advertisement is to be maintained for a continuous period of 30days, against payment of the agreed rental in terms of the rental agreement concluded between the parties in 2012. In addition, Mayat J declared that certain provisions in Section 9h of the Outdoor Advertising by-laws of the City of Johannesburg (“the by-laws”) are inconsistent with the Constitution and is accordingly invalid. The Judge further ordered the City of Johannesburg to amend the by-laws, in order to render it consistent with the Constitution.
Continental’s argument in this application was premised on inter alia that it was entitled to remove the Advertisement as the Advertisement did not comply with, amongst other things, the by-laws, as required pursuant to the terms and conditions of the rental agreement concluded between the parties. In addition, in order to conduct its business, Continental enters into agreements with local authorities and private companies and individuals to lease land upon which its billboards are erected. These agreements invariably require Continental to comply with various obligations to the landlord, including the by-laws promulgated by the local authority in relation to any advertisements put up on a billboard. In relation to the agreement of lease concluded between Continental and the City of Johannesburg, such agreement provides that Continental, in the display of any advertising, must comply with the by-laws, i.e.: Section 9h in this respect.
Accordingly, at the time, not only did Continental in its bona fide opinion believe that there existed an impediment preventing it from flighting the Advertisement pursuant to the terms of the rental agreement, but this impediment, in Continental’s bona fide opinion , extended to, and resonated in, the agreement of lease concluded between Continental and the City of Johannesburg, vis-à-vis Continental’s obligations towards the City to ensure that display of any advertising, is compliant with the by-laws. Continental contended therefore, that as a result of the breach of the by-laws, the Advertisement had been flighted contrary to the terms and conditions of the lease agreement concluded between Continental and the City of Johannesburg.
In Continental’s former statement, Continental welcomed the fact that the matter of displaying the Advertisement was entering the court process. Consequently it welcomed direction from the courts on the display of the Advertisement, or any other advertising of a political nature not provided by a registered South African political party. To this end, whilst the Judgment as handed down was unexpected, Continental shall maintain the Advertisement at a comparable site for a continuous period of 30days (against payment of agreed rental) as the impediment(s) that previously existed preventing Continental from flighting the Advertisement, has now been removed, by virtue of the Judgement handed down by Mayat J Judge of the High Court on 11 September 2014.