By Stefano de Gouveia, Candidate Attorney and Keane Robertson, Partner
Background:
The applicant in this matter, Vumacam (Pty) Ltd (“Vumacam“) has over time sought wayleaves from the first respondent, the Johannesburg Road Agency (“JRA“). More recently, however, Vumacam has been unable to secure any wayleaves due to the JRA refusing to consider Vumacam’s wayleave applications.
Section 2 of the City of Johannesburg Metropolitan Municipality Public Road and Miscellaneous By-Laws (the “Bylaws“) precludes any person, without prior written consent from the Metropolitan Municipality of the City of Johannesburg (the “Counsel“), from placing “a rope, wire or pole on, under or across any public road“. Although there are stringent requirements required to be met, once they are duly met, the Bylaws make it clear that the JRA has no discretion in issuing the wayleaves.
Over time, the process by which Vumacam went about securing these wayleaves had become increasingly difficult. The JRA began to increase and change the prerequisites required to be met on an ad-hoc basis. Notwithstanding that 64 (sixty-four) wayleaves had been granted by the JRA to Vumacam during the period between October 2019 and March 2020, Vumacam still had 29 (twenty-nine) outstanding applications with the JRA. Due to the nationwide lockdown, the JRA’s wayleave department temporarily closed from 20 March 2020. On 09 June 2020, the JRA sent a letter to a number of parties, including Vumacam, stating that it would not be accepting applications concerning aerial and Closed Circuit Television (“CCTV“) cameras installations and that these applications would remain “suspended until further notice“.
Due to the nature of Vumacam’s business, being construction and maintenance of a CCTV camera network, the decision of the JRA to suspend consideration of wayleave applications was severely prejudicial to Vumacam.
The JRA, in its attempt to justify its decision to refuse to consider Vumacam’s applications, argued that Vumacam wanted to install the CCTV cameras to “spy” on “innocent people” and then to sell the “footage” to third parties. In essence, the JRA argued that Vumacam’s stated primary objective (to combat, prevent and detect crime within public areas) did not justify the large scale and systematic invasion of privacy of the public, especially where no by-laws, regulations or policies existed to regulate the use of public CCTV camera footage.
As a result, Vumacam approached the South Gauteng High Court (the “Court“), on an urgent basis, seeking the following orders:
- declaring the suspension decision to be unlawful and invalid;
- setting aside the suspension decision;
- a direction that the receipt of the wayleave applications be entertained, considered and determined; and
- that all its (Vumacam’s) applications that had been lodged prior to the suspension decision be determined within seven days of the date of the order.
Prior to the hearing, two additional parties, the Right2Know Campaign and Mr Gavin Dennis Borrageiro, applied to join the proceedings as friends of the court, or amici curiae (the “Amici“). In addition to the argument already made by JRA, the Amici argued that the authorisation of the CCTV cameras essentially infringes the right to freedom of movement and association, in addition to the right to privacy.
The Amici further submitted that such infringements of rights impel the JRA to allow for public participation in the application process prior to decisions about wayleaves being granted. Furthermore, the Amici submitted that in the absence of any law authorising “bulk and indiscriminate CCTV video surveillance“, the wayleaves applied for by Vumacam should not be granted by the JRA and that all approvals granted previously by the JRA for the installation of CCTV cameras be declared unlawful and revoked.
Court Held:
While the JRA and the Amici were adamant that the applications made by Vumacam “cannot be dislocated from the right to privacy of the public to use public spaces without having their movements monitored“, Vumacam’s complaint related to the very narrow issue of current applicable law and the ability of the JRA to act outside of the applicable Bylaws.
While a wayleave is generally referred to as being the right to use the property of another, in terms of schedule 2 of the Bylaws it is more narrowly defined as being “a formal approval to carry out work in the road reserve“. In addition to this, the schedule also states that if an application for a wayleave conforms with the requirements stipulated in the schedule, then, “a wayleave will be granted” which subsequently “allows for the work to be carried out“. Vumacam was tactically astute by arguing narrowly and succinctly, making reference to the applicable bylaws only.
The Court highlighted that the JRA could only lawfully refuse to entertain Vumacam’s applications if Vumacam had failed to secure the approval of any other municipal department or authorised agent, as was stipulated in the Bylaws, or if the applications made failed to meet the requirements. This was not disputed by the JRA or the Amici, although the JRA argued that the Court ought to read the Bylaws to mean that Vumacam must first obtain approval for the collection and usage of the data through the CCTV cameras. This argument was without merit, according to the Court, as there is no specific requirement for this in the Bylaws and, the court noted, even if it were to read this requirement in, the JRA and the Amici failed to identify where Vumacam would go to obtain such approval.
The JRA also argued that until such time as there exists laws regulating the collection and use of personal information through public space CCTV cameras, it (the JRA) is entitled to refuse to entertain the applications made by Vumacam. In other words, the JRA argued that due to the deficiency of the current laws, it has the right to suspend the duties imposed on it by the Bylaws. The JRA expanded this argument by claiming that there will be law passed in the future that will remedy the currently deficient law and that those laws would apply retrospectively.
The Court held that the JRA had no power to decide that the current law is deficient nor does it have the power to suspend its own duties pending the passing of new laws to regulate the industry. Being an administrative body, the JRA has no powers other than those conferred upon it by the law, in this case, the Bylaws. In concluding this issue, the Court held that administrative bodies such as the JRA, “must perform their duties if the principle of legality, which is part of the rule of law, is to have any meaning.”
Lastly, the Court noted that there was no dispute that Vumacam complies with the Protection of Personal Information Act 4 of 2013 (“POPIA“) when it comes to the protection of the public’s privacy rights. Despite the submissions made by the Amici in respect of the absence of any legal framework with regards to CCTV cameras, Vumacam’s approaching the Court for an order compelling the JRA to comply with the law can in no way be unjust and/or inequitable. Arguments made that the collection of personal information through CCTV cameras may infringe certain privacy rights and subsequently be unlawful may have merit, however the Court reiterated that this issue was not engaged in this matter and therefore was of no assistance to the JRA or the Amici.
In light of the above, the Court held that “Vumacam has to succeed” and granted the following order:
- the Right2Know Campaign and Mr Gavin Dennis Borrageiro are admitted as, respectively, the first and second amicus;
- the decision to suspend the consideration of aerial and CCTV wayleave applications is declared to be unlawful and invalid and is set aside;
- the first respondent is directed to proceed with the consideration and determination of aerial and CCTV wayleave applications;
- the first respondent is directed to, within seven days of the date of the order, issue the applicant with a decision on the wayleave applications annexed to the Notice of Motion, together with reasons if the applications are, or if any individual one is, refused; and
- the first respondent is to pay the costs of the application.
