Durban - The city has conceded that laying criminal charges against those who break some building by-laws is not worth the time or effort - and the paltry fine of R500 on conviction often makes it worthwhile for offenders to simply take the risk.
This admission was made by legal adviser Mazo Maphumulo in a Durban High Court application brought by the eThekwini Municipality against a beachfront shareblock building which had allowed a massive billboard to be erected on one side.
In spite of pleas for more time to oppose the application, Judge Dhaya Pillay ordered that the billboard be removed immediately.
“They have had enough time,” she said, noting that the application against Fairhaven Shareblock in OR Tambo (Marine) Parade had been launched almost a year ago.
According to documents before the court, the shareblock had initially been informed of the contravention of the bylaws in April 2013, but all warnings that they must take the billboard down or apply for permission for it had been ignored.
The shareblock also did not file any opposing affidavit in the court application, although it attempted to do so on Sunday, claiming the outdoor advertising company had lodged an application with the city in July last year but had not received either approval or rejection.
Maphumulo, in her affidavit, said criminal charges would take time to prosecute. And the fine might seem worthwhile when considering the income probably being earned.
“It may well transpire that the shareblock will pay admission-of-guilt fines which would be wholly disproportionate to the income derived,” she said.
The huge sign - the content of which has changed more than once since being erected - was first observed by an inspector in April 2013 who checked city records and determined that no permission had been sought or granted.
A notice had been served, setting out the breach of the bylaws and directing that the sign - on the north side of the building and lit by a single lamp - be removed. There was no response.
Maphumulo said media companies usually rented space from property owners in return for a percentage of profits derived or a fixed rental.
“It is standard practice for the name and contact details of the media company responsible to be displayed. This has not occurred in this case, so we have no knowledge of the involvement of any other parties.
“The shareblock, however, would be responsible for permitting the erection of the billboard because it owns the property.”
She said another notice had been sent in January this year and “this too was ignored”.
She said the beachfront was a “maximum control zone” and outdoor advertising was prohibited. “In its efforts to promote the city internationally and locally, the council is doing all things necessary to ensure there is no illegal advertising. This is a popular tourist attraction and the conduct of the respondent tarnishes this and cannot be allowed.
“The respondent cannot complain of economic consequences because it has acted unlawfully from the outset.”
But attorney Daryl Francois, acting for the shareblock, said the advertising company had applied for permission in July last year.
He conceded this was after the structure had been erected but denied it had been put up in April 2013, saying it had gone up in April 2014.
“Previously, there was a round Coca-Cola sign on the building for decades. In fact, it was noted on mariners’ charts.”
He said 80% of the residents in the building were pensioners and the city had, in the past, encouraged the erection of these signs to make buildings more financially viable.
“The shareblock has been informed that the lease of the land from the city comes up for renewal and it wants the building to buy it. The last price being bandied about was more than R5 million. They want to use the advertising income to build up a fund for this.”
He said the advertising company would now push for a decision about its application and if it was rejected, it would appeal.
Approached about the issue of fines, Tozi Mthethwa, the head of communications at the municipality, said the city could not arbitrarily increase them.
“A fine for a particular transgression may serve as a deterrent to some and not to others. We have the option of laying criminal charges or applying for a high court interdict. In this case, the order we obtained was based on the bylaws,” said Mthethwa.
The Mercury