City of Johannesburg v Ad Outpost (Pty) Ltd

Ad Outpost (Pty) Ltd operated two billboards (Sandown and Kelvin View) alongside major roadways in Johannesburg under authority granted in 2001 under the 1999 by-laws for a three-year period. The authority lapsed in 2004, but the respondent continued using the billboards until November 2006 when the City of Johannesburg drew attention to the lapse and invited the respondent to apply for renewal. In March 2007, the respondent submitted renewal applications under the 2001 by-laws (which had replaced the 1999 by-laws). The City refused the applications in September 2007, citing safety standards requiring signs to be 200m from overhead traffic signs, though this prohibition did not exist in the 2001 by-laws. The City Manager dismissed the appeals in January 2008. By the time the respondent launched a review application in September 2008, the 2001 by-laws had been replaced by the 2008 by-laws, which re-introduced prohibited areas near ramps and overhead signs. The 2008 by-laws were themselves repealed in December 2009 by the 2009 by-laws, which continued similar prohibitions and provided that pending applications must be dealt with under the new by-laws.

• Whether the City's decisions refusing the applications and dismissing the appeals were validly taken
• Which by-laws (2001, 2008, or 2009) should apply to the reconsideration of the renewal applications
• Whether the respondent had acquired rights under the 2001 by-laws before their repeal
• Whether applications can be considered 'pending' when invalid decisions are retrospectively set aside
• Whether the court can exercise a discretion on behalf of the administrative authority in granting the permission sought

The appeal succeeded with costs, including costs of two counsel. The order of the high court was set aside and substituted with an order that: (a) the decisions of the City and the City Manager to refuse the applications and dismiss the appeals were reviewed and set aside; and (b) the applicant (Ad Outpost) was to pay the costs in the high court, including costs of two counsel.

Where an administrative decision is set aside as invalid, it is retrospectively regarded as never having been made. Consequently, applications subject to such invalid decisions must be considered as having been continuously 'pending' since they were originally lodged. Where by-laws contain transitional provisions requiring pending applications to be dealt with under new by-laws, such applications must be considered under the by-laws in force at the time of reconsideration, not under the by-laws in force when the application was originally made. An applicant does not acquire an accrued right to have an application determined under particular by-laws merely by submitting the application before those by-laws are repealed; at most, this creates a hope or expectation falling short of an accrued right protected by section 12(2)(c) of the Interpretation Act.

The court observed that the situation where successive sets of by-laws were promulgated without the parties or the high court being aware of the current position was 'lamentable'. The court also noted that it would be pointless to direct the City to reconsider the renewal applications when the applicable by-laws imposed an absolute prohibition that obliged the City to refuse the applications. While not strictly necessary for the decision, the court indicated that even if clause 39(3) had not been included in the 2009 by-laws, the respondent would not have had accrued rights under the 2001 by-laws by virtue of section 12(2)(c) of the Interpretation Act, following the reasoning in Gunn, Volkswagen, and Edcon.

This case is significant for clarifying the application of successive by-laws to pending applications in administrative law. It reinforces the principle from Oudekraal that invalid administrative decisions, while operative until set aside, are retrospectively treated as never having been made once declared invalid. The judgment provides important guidance on when applications are to be considered 'pending' and how transitional provisions in successive legislation should be applied. It also confirms that courts should not exercise discretions on behalf of administrative authorities but should rather remit matters for reconsideration where appropriate, unless such reconsideration would be futile. The case demonstrates the interplay between administrative law principles, statutory interpretation, and the Interpretation Act in the context of repealed legislation.