Despite this case being of an interim nature (i.e. an application for an interim interdict), the judgement has wide-reaching implications on our democracy. Political parties fulfil a pivotal role in a pluralist democracy. They provide a link between citizens and the government. This case, therefore, is important as it deals with the intersectionality of the right to engage in political campaigning on the one hand, against the autonomy of municipalities to exercise their constitutionally guaranteed statutory powers, on the other hand.

The facts

The EFF hung various political banners on poles and bridges around the city that encouraged citizens to vote for the party. On 1 October 2021, the City of Cape Town informed the EFF that the banners were hung in violation of the City’s poster rules i.e. the “Rules for posters during voting registration, general election, and election processes, 2021”. The Rules specifically relate to the election period. Ordinarily, the Outdoor Advertising and Signage By-law (the By-law) would regulate the use of banners and posters. However, the By-law does provide for the use of banners for political events which include a municipal election but do not, in a somewhat ironical manner, permit the display of banners that encourages citizens to vote for a political party.  

On 5 October 2021, the City informed the EFF that the City was going to remove the banners because they contravened its By-law. The City did not advise the EFF that they had an option to apply for exemption from the Rules. The EFF, under the belief that there was no internal remedy available to them, approached the Cape Town High Court on an urgent basis to obtain an interim interdict to prevent the City from removing its banners. The banners were argued to be instrumental in their campaign for the imminent municipal elections and thus an interim interdict was sought. The EFF also instituted legal action to challenge the constitutionality of the By-law.

Arguments of the EFF

The EFF did not challenge the City’s powers to enact by-laws that dealt with the issue of posters and banners for electioneering purposes. Its argument was grounded on the constitutionality and rationality of the City’s By-law on the display of banners. It averred that the prohibition of the use of banners during an election as opposed to posters was irrational. Further, the party questioned why the By-law prohibited the use of banners for elections and campaigns. It argued that the superficial distinction created by the By-law in permitting the use of banners for a political event but not for campaigning was arbitrary and artificial. For instance, the display of banners on city light poles for political parties to encourage the public to vote for a particular political party was not permitted.

The EFF argued that section 19(1)(c) of the Constitution affords citizens, and by extension political parties, the right to campaign for a political party or cause. Therefore, the EFF contended that the By-law infringed their constitutionally protected right and they needed protection from the Court against the City. The EFF maintained that it could not wait for the final determination on the constitutionality or not of the By-Law, as the banners serve to campaign and canvass votes for the 1 November 2021 local elections. Thus, the EFF prayed for an interim order interdicting the City from removing the banners until the determination of the constitutional challenge.

Arguments of the City of Cape Town

The City contended that the 2021 poster Rules only cater for posters and not banners. Furthermore, the City asserted that the EFF was not using the banners in compliance with the prescripts of the By-law. The Outdoor Advertising and Signage By-law (the By-law) regulates the use of banners and posters. As a consequence, the City argued that banners cannot be used during political campaigning but may be used in an event related to a municipal, provincial, or parliamentary election or referendum in terms of section 2 of Schedule 10 of the By-law.

The City also asserted that the EFF failed to meet the requirements for the interdictory relief sought. The City submitted that the relief is always discretionary and that the circumstances of this matter dictated that due to the iniquitous results that would arise by favouring the applicant over the other political parties, the relief should be refused. Lastly, the City argued that the EFF could have applied for an exemption as an alternative remedy before approaching the court.  

Legal Issue before the court

The Cape High Court had to determine two broad issues. Firstly, whether the requirements for interdicting a statutory power was met and secondly,  if all the elements required for granting an interim interdict were present which entail-

1. has a prima facie right been established that was infringed;
2. is there a reasonable apprehension of irreparable harm and imminent harm if the order is not granted;
3. does the balance of convenience favour the applicant; and
4. no alternative remedy is available.

The Court’s decision

On the first issue, namely, whether the statutory powers may be interdicted the Court found that it does have the jurisdiction to grant an interim interdict pending a constitutional challenge, without having to grant an order of unconstitutionality of the impugned provision of the By-law. This may only be done in exceptional circumstances. The Court also emphasised that due regard must be given to the democratic principle of the separation of powers.

With respect to the second issue, whether the requirements were met for awarding an interim interdict the Court provided a detailed exposition on each of the four elements. Simply put, the Court held that the EFF met all the requirements.

The Court intimated that the EFF had not only established a prima facie right but a clear right. Confirming that the EFF advanced factual allegations that supported how the City’s By-law will infringe its section 19(1)(c) constitutional right and why it needs protection. Moreover, the Court found that the threat to remove the banners of the EFF on the basis of a statute that is under constitutional attack threatens the EFF’s right to campaign and will lead to disenfranchisement. The Court, therefore, held that the EFF would suffer irreparable harm if the interim interdict was not granted.

The Court said the relief sought by the EFF was strictly necessary and clearly in the interest of justice.  On the balance of convenience, the Court pronounced that the operation of the By-law was subsidiary in nature and its operation is only interfered with for a short period of time. The Court pointed out that the City itself allows for a special dispensation during elections in respect of its poster rules. In addition, it questioned, why the same approach cannot apply in respect of banners during an election. Accordingly, the Court held that the interdict sought by EFF will hardly impact the operation of the City over the next three weeks up to the local elections. Thus, the Court ruled that the EFF must be allowed to campaign openly and effectively and this will promote the objects, spirit and purport of the Constitution.

Last, the Court held that no alternative remedy was available to the EFF.  The reason being that EFF was led to believe by the correspondence of the City that no internal remedy was available within the City of Cape Town and therefore the EFF approached the Court for protection.

Commentary

It is clear from this case that the City adopted a very rigid reading of the By-law and seemingly failed to give effect to the constitutional aspirations with regards to section 19(1)(c) of the Constitution that demands a broader interpretation rather than a narrow one.

The  By-Law does, empower the City to exempt an applicant from its terms. The approval process is also different during an election. As an example, no permit or payment is required from political parties during an election period to hang posters and banners. Still, the City submitted that schedule 10 of the By-law does not permit the display of banners for electioneering purposes.

The Court reaffirmed the important role that political parties fulfil in a pluralist democracy. It also emphasised the crucial role that the judiciary will continue to play by enforcing the values of our constitutional democracy. The Court rightly provided a broad interpretation of the meaning and parameters of section 19 of the Constitution. The Court underpinned the application of this provision with section 34 of the Constitution (which provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum).

In regard to the application of section 19 of the Constitution, the Court favoured an approach in which rights may not be limited without justification. It affirmed that legislation (by-laws) dealing with the franchise of political parties must be interpreted in favour of enfranchisement rather than disenfranchisement. On the basis of this reasoning, by-laws must be interpreted in a manner that would strengthen rather than limit political activity.

The principle to extract from this case is that the deepening of our pluralistic democracy demands that citizens’ political rights and by extension political parties are not limited unjustifiably. This means that, among other things, that municipal statutory powers must be exercised in a manner that gives expression to the objects, spirit and purport of the Constitution. A rigid and technocratic application of statutory powers will open municipal by-laws to court challenges.

At the same time, political parties are not free to act outside the legal framework. For instance, a political party must first ensure that it aims to abide by municipal by-laws that regulate the placement of posters and banners for electioneering purposes. If it becomes clear that the by-law in question is irrational, unjust or inappropriate, the relevant political party must first seek alternative remedies from the municipality. Only once all the internal remedies have been exhausted can a political party approach a court for relief. This is important to ensure that municipal legislative powers are not subverted.

By Dr Shehaam Johnstone, Postdoctoral Fellow