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IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH EASTERN CAPE LOCAL DIVISION)
Case No. 3263/02
In the matter between:
NELSON MANDELA METROPOLITAN MUNICIPALITY First Applicant
MARTIN ISAAC MAASDORP Second Applicant
HAROLD CHARLES LOVEMORE Third Applicant
THOMAS EDWIN ELLIS Fourth Applicant
GIDEON JOHANNES ROSSOUW Fifth Applicant
and
GREYVENOUW CC First Respondent
CHARLES MELVILLE Second Respondent
FRED HUME Third Respondent
VICTORIA PARK RATEPAYERS ASSOCIATION Fourth Respondent
______________________________________________________________
_______________________JUDGMENT_____________________________
PLASKET AJ:
[A] PARTIES, FACTS AND ISSUES
[1] The first applicant brought an urgent application against the first, second
and third respondents in which it sought to interdict them from carrying on
their business, a restaurant and bar known as the Crazy Zebra, to the extent
that this business was conducted in contravention of zoning conditions and to
the extent that it caused a nuisance, whether in terms of the common law or
1
noise control regulations. The first applicant is the organ of local government
that has jurisdiction in respect of the suburb of Walmer, Port Elizabeth, the
area where the Crazy Zebra is situated. The first respondent is the close
corporation through which the Crazy Zebra is operated. The second
respondent is a member of the first respondent. So is the third respondent,
although he has had nothing to do with these proceedings. No relief or costs
order is sought against the third respondent.
[2] Although the first applicant cited the fourth respondent as a respondent
because of its interest in the matter, it seeks no relief against the fourth
respondent. Indeed, the fourth respondent has made common cause with the
first applicant. At a later stage in the proceedings, the second, third, fourth
and fifth applicants sought leave to intervene in the proceedings. They reside
in the vicinity of the Crazy Zebra. They also appear to be the driving force
behind the fourth respondent. When they applied to be joined as applicants,
they also applied for certain amendments to the notice of motion.
[3] A number of issues require resolution. On 30 January 2003 when the
matter was heard, I granted the application brought by the second, third,
fourth and fifth applicants to intervene as applicants and for the amendment of
the notice of motion and I dismissed an application brought by the first
applicant for a postponement. I gave no reasons at the time and will do so
below. In the main application, there are three preliminary points taken by the
first and second respondents (whom I shall refer to, from now on, simply as
the respondents): first, they argued that the matter was not urgent and, to the
extent that it was, the first applicant failed to attempt to comply with the rules
to the extent possible; secondly, they took the point that the deponent to the
founding affidavit did not have the necessary authority to act on behalf of the
first applicant; and thirdly, they challenged the standing of the fourth
respondent. When these issues have been dealt with, I shall turn to the
merits, to whether any order I make may or should be suspended for a period
2
and to the question of costs.
[B] INTERVENTION, AMENDMENT AND POSTPONEMENT
(a) The Application to Intervene
[4] The applicants in the application to intervene claim a direct interest in the
matter based on the fact that, in the words of Mr Maasdorp, ‘my family and I
are seriously and continuously detrimentally affected by the unlawful activities
of the first and second respondents’ and that as ‘residents directly affected by
the unlawful conduct of the respondents, I and the other intervening co
applicants therefore have the right to appear in these proceedings and to
endeavour to safeguard our fundamental right to peaceful and undisturbed
habitation in our residential suburb’.1
[5] In addition, Mr Maasdorp states that he and his coapplicants grew
alarmed when the first applicant’s application appeared to be in danger of
being dismissed because, when challenged by the respondents, it could not
establish the authority of the deponent to the founding application, resulting in
two postponements at the first applicant’s cost. As a result of this, the
operation of the interim interdict that had initially been granted was
suspended.2 The consequence of this problem was stated as follows by Mr
Maasdorp:3
‘This meant that the unlawful conduct of the respondents, and
particularly the unbearable noise nuisance (but also including extensive
parking problems, traffic congestion, taunting of residents, public
urination and all other adverse effects flowing from having a busy pub
and restaurant in the middle of a residential suburb) continued
unabated since then. It is not the Municipality that is bearing the brunt
1 Affidavit of Maasdorp, para 4.1 (p215216).2 Affidavit of Maasdorp, paras 4.34.4 (p216217).3 Affidavit of Maasdorp, para 4.4 (p217).
3
of the unlawful activities and nuisance created by the respondents, it is
the residents4 that are suffering. I regret to say that the other affected
residents and I have lost confidence and trust in the ability (and
perhaps even the resolve) of the Municipality to get its papers in order
and to proceed to obtain timeous final relief against the respondents
which would at last bring peace and tranquillity to our lives.’
[6] This point was reenforced, in the submission of Mr Mouton SC, who
appeared for the intervening applicants, when the first applicant indicated that
it would seek a postponement of the matter for a month.
[7] The respondents opposed the application. In his affidavit, the second
respondent takes issue with the allegation that the Crazy Zebra is being
operated in an unlawful manner, that it creates a nuisance, that there are
parking and other problems as Mr Maasdorp alleges and that, in effect, since
the intervening applicants chose to allow the first applicant to litigate in their
interest as it were, they should not now be allowed to change horses in mid
stream.5
[8] In my view, the denial of unlawful conduct on the part of the respondents is
no bar to the application to intervene. In much the same way as the issue of
standing is a preliminary issue in which the merits are assumed in favour of
the applicant,6 in an application to intervene the question is whether, on the
applicant’s version, he or she is, in the words of rule 12, ‘entitled to join as a
plaintiff’.7
[9] In order to satisfy this requirement, an applicant must furnish prima facie
4 Emphasis in the original.5 Affidavit of Melville, paras 611 in particular (p296299).6 Steel and Engineering Industries Federation and others v National Union of Metalworkers of South Africa (1) 1993 (4) SA 190 (T), 191IJ, in which Myburgh J stated that an ‘objection taken in limine to the locus standi of an applicant must be dealt with on the assumption that all the allegations of fact relied on by the party are true’.7 Rule 12 should be read with rule 6(14), which makes rule 12 applicable to applications.
4
proof of his or her interest (and hence his or her right to intervene) but he or
she need not go further to satisfy the court that he or she will succeed in the
end of the day; and an applicant must satisfy the court too that his or her
application is made seriously and is not frivolous.8 In addition, when as in this
matter, the applicants base their claim to intervene on a direct and substantial
interest in the subject matter of the dispute, the court has no discretion: it
must allow them to intervene because it should not proceed in the absence of
parties having such legally recognised interests.9
[10] It is clear that, on the basis of the allegations made by Mr Maasdorp that I
have quoted above, he and his coapplicants have established that they have
a direct and substantial interest in the subject matter of the dispute, that their
application is a serious one and is not frivolous and that the allegations made
by them make out a prima facie case. They are entitled to join these
proceedings as applicants.
(b) The Amendments
[11] Mr Mouton brought an application for the amendment of the notice of
motion in certain respects. Most of the amendments were directed at formally
bringing the notice of motion into line with the intervention of the four
applicants represented by him.
[12] He also applied for one amendment of the notice of motion that has
substantive consequences. That was the addition of a prayer for a declarator
that ‘on a proper interpretation of zoning condition (xiv) applicable to erf 1883,
8 Minister of Local Government and Land Tenure and another v Sizwe Development and others: In Re Sizwe Development v Flagstaff Municipality 1991 (1) SA 677 (Tk), 678H679B; Ex Parte Marshall: In Re Insolvent Estate Brown 1951 (2) SA 129 (N), 131AD. See too Van Winsen, Cilliers and Loots The Civil Practice of the Supreme Court of South Africa (4ed) Cape Town, Juta and Co: 1997, 179.9 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A), 659. See too Ex Parte Marshall: In Re Insolvent Estate Brown supra, 131E. See too Van Winsen, Cilliers and Loots, op cit, 179 and the cases there cited.
5
Walmer, the amplified music that may be played in the outside alfresco dining
area on Friday and Saturday evenings until 22h30, may not cause any
common law nuisance’ and an alternative prayer ‘amending the said
condition to the extent that any music that may be played in the outside
alfresco area on Friday and Saturday evenings until 22h30 on the said erf,
may not cause any common law nuisance’.
[13] Neither Mr Goosen for the first applicant nor Mr Beyleveld for the
respondents opposed the amendments, which were duly granted. I granted a
further amendment to the notice of motion on the application of Mr Goosen. It
was the amendment of prayer 2.5 of the notice of motion to include a prayer
for costs not only against the first respondent but also against the second
respondent
(c) The Application for the Postponement
[14] Mr Goosen applied for the matter to be postponed for a month. In support
of his application, he handed up a letter from the municipal manager, Mr ML
Mangcotywa, addressed to the first applicant’s attorneys and dated 30
January 2003. It stated:
‘My instructions to you are that you apply for a postponement of this
matter for one month to enable the Municipality to make certain that
they have fully engaged with the Crazy Zebra with a view to settling the
matter.
You have authority to tender the wasted costs of the postponement of
all parties on a party and party scale.’
[15] Mr Beyleveld did not oppose the application and, indeed, supported it. His
argument was one that probably holds true as a general proposition: that it is
better to talk and attempt to settle, rather than to ‘slug it out in court’ as he put
it.
6
[16] Mr Mouton opposed the application vigorously. He argued, firstly, that this
case involves the ongoing infringement of the rights of his clients and,
secondly, that the conduct complained of is not merely unlawful but also
constitutes criminal conduct: a postponement would mean that this criminal
conduct would proceed unchecked for the month during which an attempt is
made to settle. He argued, thirdly, that to grant a postponement would amount
to allowing the first applicant to abrogate its statutory and constitutional duties
to residents. Fourthly, he argued that the prejudice suffered by his clients in
the month that settlement would be explored is not the type of prejudice that
can be cured by a costs order.
[17] In determining whether to grant the application or not, I must consider the
reason for the postponement applied for, the prejudice to the parties if it is
granted or refused and whether a costs order can cure the prejudice that a
party may suffer through the granting of the postponement.10
[18] In this case the reason for the postponement is to enable the first
applicant to ‘make certain that they have fully engaged with the Crazy Zebra
with a view to settling the matter’. While settlement efforts should invariably be
encouraged, I note that in this instance the municipal manager stops short of
saying that settlement negotiations will be engaged in. Something less
tangible and less definitive than that appears to be envisaged. It appears to
me that the first applicant wants time to ascertain whether settlement may be
an option. There certainly is no suggestion from the letter that settlement is
likely.
[19] The reason given by the first applicant for wanting a postponement must
also be viewed in the light of various other factors. First, the launching of the
urgent application by the first applicant was preceded by exchanges of letters
10 See generally on postponements, Van Winsen, Cilliers and Loots, op cit, 666668.
7
and a meeting. These dealings were fairly protracted. They were unable even
to produce an undertaking from the respondents. There is no indication that
anything has changed from then. Secondly, the matter is ripe for hearing and
a great deal of time and effort has been expended by all the parties –
including the first applicant – to ensure that the matter could be argued on 30
January 2003. Thirdly, there have already been a number of postponements.
On two occasions, the postponements were requested by the first applicant
and it tendered the costs of all of the other parties. It does not appear that
efforts were made in the time afforded by these postponements to explore the
options that the first applicant now wants to explore. It appears to me,
therefore, that the reason why the first applicant seeks a postponement is not
a good one and, if it would have been prejudiced by proceeding, it has not
placed any information in relation thereto before me or even alleged such
prejudice.
[20] The second issue I turn to is whether the other parties would be
prejudiced by the postponement. There is no indication that the respondents
will be but the same is not true of the second, third, fourth and fifth applicants.
They, as Mr Mouton pointed out, will bear the brunt of the monthlong delay in
which the first applicant makes certain that it has ‘fully engaged’ with the
respondents, whatever that may mean. There are no guarantees that a
settlement is even a possibility and, because of the fact that the interim order
that was initially granted has been suspended, they are not even protected by
it. The nature of the applicants’ complaints about the conduct of the
respondents is such that a costs order cannot cure the prejudice that the
second, third, fourth and fifth applicants allege is their lot as a result of the
operation of the Crazy Zebra.
[21] For the above reasons, I decided to refuse the application for the
postponement. After I had done so, the matter proceeded.
8
[C] URGENCY, AUTHORITY AND STANDING
(a) Urgency
[22] The respondents take the point that the matter is not urgent and to the
extent that it may be, the first applicant’s notice of motion did not attempt, as
far as practically possible, to comply with the form required by the rules. On
either of these grounds the application falls to be dismissed, in the submission
of Mr Beyleveld.
[23] In respect of the first issue, the respondents argue that, given the
protracted dealings that preceded the launching of the application, the first
applicant has abused the processes of the court by claiming that the matter is
urgent: the urgency was selfcreated, and selfcreated urgency does not pass
muster for purposes of rule 6(12).
[24] In order to deal with this argument it is necessary to have regard to the
dealings between the parties in the weeks prior to the launching of the
application.
[25] For present purposes 7 November 2002 is a convenient date to assume
for present purposes that the dispute between the first applicant and the
respondents commenced.11 It was on that day that the first applicant’s
attorneys directed a letter to the first respondent concerning the alleged non
compliance with zoning conditions. The first respondent was informed that the
playing of loud music had caused a nuisance and requested to take steps to
rectify the situation by immediately ceasing to play ‘live and/or recorded music
in the outside alfresco dining area on any Friday or Saturday of the week
which causes a common law nuisance’. It was, however, only on 21
11 It appears from the papers that there is in fact a much longer history of disputes between the parties that has found its way into the High Court before. Previous proceedings and their settlement are not relevant to this matter.
9
November 2002 that a reply was received. Prior to that, however, the first
applicant received more complaints about the noise emanating from the Crazy
Zebra. It investigated those complaints and also discovered that the business
was being conducted without a valid business licence, required by the
Business Act 71 of 1991, and without a certificate of acceptability, required by
a regulation made in terms of the Health Act 63 of 1977.12
[26] On 21 November 2002, the respondents’ attorneys responded to the
letter of 7 November 2002. In this letter it is stated that ‘we have advised our
client to ensure that common law nuisance ceases to the extent that there is a
nuisance’.13 The first applicant’s attorneys responded on the same day and
informed the respondents’ attorney that ‘we are preparing papers dealing with
other issues beyond the common law nuisance aspect such as the zoning and
use where appeals have been filed’.14
[27] On the following day the first applicant’s attorneys addressed a letter to
the respondents in which they set out a lengthy list of what they alleged were
breaches of the zoning conditions. A demand was made that the respondents
remedy their breaches of the zoning conditions within 48 hours and the first
applicant’s right to invoke the legal process was reserved.15 On 2 December
2002, the respondents’ attorneys answered this letter. He complained of
unlawful police action against his clients, of an ‘orchestrated effort on the part
of certain individuals (who have an agenda) to close down our client’ and that
‘the current appeals in respect of this [the] rezoning [of erf 1882] are simply
part of another orchestrated attempt to delay a completely reasonable
rezoning’. He stated that his client was complying with the zoning conditions
and that it was not causing a nuisance. He proposed a meeting to be attended
by ‘all interested parties, including the neighbours, the SAP and your client’.16
12 Affidavit of Welgemoed, paras 3134 (p1718). 13 Annexure ‘DJW5’ to the affidavit of Welgemoed (p42).14 Annexure ‘DJW5’ to the affidavit of Welgemoed (p41). 15 Annexure ‘DJW6’ to the affidavit of Welgemoed (p4347).16 Annexure ‘DJW7’ to the affidavit of Welgemoed (p4850).
10
[28] This meeting took place on 9 December 2002, after initially being set
down on an earlier, but as it happened, unsuitable day. The meeting,
according to the respondents’ attorneys did not succeed in resolving any of
the issues.17 On the following day the first applicant’s attorneys responded. It
was pointed out that the first applicant’s position was that it was unlawful for
the respondents to conduct business at erf 1882 and that they were required
to cease to do so, and that the zoning condition that allowed music to be
played on erf 1883 did not authorise the respondents to cause a nuisance. A
demand was made of the respondents that they comply with the zoning
conditions in respect of erf 1883 and that they immediately close their
business operations on erf 1882.18
[29] On 12 December 2002 the first applicant’s attorneys sent a further letter
to the respondents’ attorneys in which they drew to their attention the fact that
the respondents were still operating their business without either a business
licence or a certificate of acceptability. The respondents were given five days
grace to lodge their applications for the licences and an undertaking that they
would be dealt with within 21 days by the first applicant. This letter specifically
said that it was written on the assumption that the business operations
conducted on erf 1882 would cease.19
[30] On 13 December 2002 the first applicant’s attorneys sent another letter to
the respondents’ attorneys in which they made it clear that, in their view, the
respondents were acting unlawfully and they demanded the cessation of that
unlawful conduct. The letter further stated that ‘[o]ur client expects written
confirmation from your client to comply with their demands by no later than
close of business today Friday 13 December 2002’ and that if no undertaking
was given an application would be made for an interdict to compel the
17 Annexure ‘DJW10’ to the affidavit of Welgemoed (p53).18 Annexure ‘DJW11’ to the affidavit of Welgemoed (p5455).19 Annexure ‘DJW13’ to the affidavit of Welgemoed (p5859).
11
respondent’s compliance with the law.20
[31] No undertaking was given and, on 13 and 14 December 2002, noise
surveys were conducted by Mr Jacobus Slabbert, a senior environmental
health practitioner employed by the first applicant. These surveys revealed
that unacceptably high noise levels emanated from the Crazy Zebra and also
confirmed that erf 1882 was still being used for business purposes contrary to
the zoning conditions.21
[32] The application was launched on 19 December 2002 and notice was
given that the matter would be heard at 09h30 on Friday 20 December 2002
or as soon thereafter as counsel could be heard. The papers were served on
the respondents on the morning of Thursday 19 December 2002.22
[33] The respondents placed reliance on the judgment of Trengove J in
SchweizerReneke Vleis Maatskappy (Edms) Bpk v Die Minister van Landbou
en andere,23 an oftquoted locus classicus on self created urgency. The nub of
this case is contained in the following passage:24
‘Volgens die gegewens voor die Hof wil dit vir my voorkom dat die
applicant alreeds vir meer as ‘n maand weet van die toedrag van sake
waarteen daar nou beswaar gemaak word. Die aangeleentheid het
slegs dringend geword omdat die applicant getalm het en omdat die
tweede respondent, soos die applicant lankal geweet het, of moes
geweet het, dat die besigheid in SchweizerReneke geopen het. Die
applicant mag gewag het vir inligting van die eerste respondent soos in
die skrywe aangevra maar dit was geensins nodig vir die doeleindes
van hierdie aansoek wat op die nienakoming van die audi alteram
partem reel gebaseer is, om so lank te wag om die Hof te nader nie.
20 Annexure ‘DJW14’ to the affidavit of Welgemoed (p6061).21 Affidavit of Welgemoed, paras 5153 (p23); see too the affidavit of Slabbert, paras 812 (p64), read with annexure ‘JS3’ thereto (p8487).22 Affidavit of Melville, para 2 (p90).23 1971 (1) PH F11 (T).24 At F1112.
12
Al hierdie omstandighede in ag genome is ek nie tevrede dat die
applicant voldoende gronde aangevoer het waarom die Hof op hierdie
stadium as ‘n saak van dringendheid moet ingryp nie. Ek is dus, in die
omstandigheid, nie bereid nie om af te sien van die gewone voorskrifte
van reel 6.’
[34] In this case, the first applicant did not drag its feet. It undertook efforts to
resolve the problem that it had found at the Crazy Zebra by notifying the
owners of their alleged noncompliance with the law, by attending a meeting
in an effort to resolve the problem and when that failed, by requiring an
undertaking. When that was not forthcoming, it investigated further so that it
had evidence of the level of noise emanating from the Crazy Zebra. In my
view it approached its statutory duty of safeguarding the rights and interests of
ratepayers in a responsible manner by seeking to persuade the respondents
to comply and only then approaching the court for relief. In these
circumstances it cannot be said that the first applicant has been dilatory in
bringing the application.25 There is consequently no merit in this point.
[35] The second aspect relating to urgency relied upon by the respondents is
that the notice of motion was not as far as possible in compliance with form
2(a) of Schedule 1 to the rules. Instead it is deviates completely from form
2(a) by failing to stipulate time periods for the filing of notices and papers,
suitably abridged in accordance with the urgency of the matter. Reliance is
placed on the judgment of Kroon J in Caledon Street Restaurants CC v D’
Aviera26 in which the learned judge dismissed an urgent application because
the applicant had misconstrued the degree of urgency and should have given
more notice than it had to the respondent.27
[36] Much is made by the respondents of the dicta in this case to the effect
25 See Twentieth Century Fox Film Corporation and another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W), 586D. 26 [1998] JOL 1832 (SE).27 At 21.
13
that the applicant should not have deviated from form 2(a) entirely but should
have stipulated truncated time periods for filing a notice of opposition and for
the filing of answering papers and the reply, and that applicants may only
deviate from the forms and service provided for in the rules to the extent
necessary.
[37] It is trite that applicants in urgent applications must give proper
consideration to the degree of urgency and tailor the notice of motion to that
degree of urgency.28 It is also true that when courts are enjoined by rule 6(12)
to deal with urgent applications in accordance with procedures that follow the
rules as far as possible, this involves the exercise of a judicial discretion by a
court ‘concerning which deviations it will tolerate in a specific case’.29
[38] Secondly, it is not in every case in which the applicant may have
departed from the rules to an unwarranted extent that the appropriate remedy
is the dismissal of the application. Each case depends on its special facts and
circumstances. This is implicitly recognised by Kroon J in the Caledon Street
Restaurants CC case when he held – looking at the issue from the other
perspective, as it were – that the ‘approach should rather be that there are
times where, by way of nonsuiting an applicant, the point must clearly be
made that the rules should be obeyed and that the interest of the other party
and his lawyers should be accorded proper respect, and the matter must be
looked at to consider whether the case is such a time or not’.30
[39] Thirdly, the ratio of the decision in Caledon Street Restaurants CC was
not that the application fell to be dismissed because the applicant had not
attempted to comply more fully with form 2(a) of Schedule 1 to the rules but
rather that the applicant had misconceived the urgency of the matter to the
28 See in particular, Luna Meubel Vervaardigers (Edms) Bpk v Makin and another( t/a Makin Furniture Manufacturers) 1977 (4) SA 135 (W), as well as the other cases cited by Kroon J at 11.29 Caledon Street Restaurants CC supra, 8.30 At 11.
14
extent that Kroon J held that ‘the use that the applicant made of the procedure
relating to matters of urgency, was a misuse, indeed an abuse, of the process
of the court’ and it was on this basis that the learned judge concluded that the
application was to be dismissed.31
[40] I am of the view that the argument of the respondents on this point is
based on a degree of inflexible formalism that, I am sure, Kroon J did not
intend to suggest should be the norm in all cases irrespective of the
circumstances. Indeed, the erstwhile Appellate Division has on a number of
occasions turned its back on such formalism in the application of the rules.
For instance, in TransAfrican Insurance Co Ltd v Maluleka32 Schreiner JA
held that ‘technical objections to less than perfect procedural steps should not
be permitted, in the absence of prejudice, to interfere with the expeditious
and, if possible, inexpensive decision of cases on their real merits’. In
Federated Trust Ltd v Botha33 Van Winsen AJA held that the ‘rules are not an
end in themselves to be observed for their own sake. They are provided to
secure the inexpensive and expeditious completion of litigation before the
courts’ and that ‘[w]here one or other of the parties has failed to comply with
requirements of the Rules or an order made in terms thereof and prejudice
has thereby been caused to his opponent, it should be the court’s endeavour
to remedy such prejudice in a manner appropriate to the circumstances,
always bearing in mind the objects for which the Rules were designed’. In
Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport
Commission34 Corbett JA held that ‘[n]aturally, it is for the Court to decide
whether the matter is really one of urgency and whether the circumstances
warrant a departure from the normal procedures. To hold otherwise would, in
my view, make the Court the captive of the Rules. I prefer the view that the
31 At 21. See for the basis upon which Kroon J held that the applicant had misconceived the degree of urgency, 1821.32 1956 (2) SA 273 (A), 278G.33 1978 (3) SA 645 (A), 654CF.34 1982 (3) SA 654 (A), 675I.
15
Rules exist for the Court, rather than the Court for the Rules’.35 Most recently,
in Scott v Golden Valley Supermarket36 Harms JA held that the rules ‘are
designed to ensure a fair hearing and should be interpreted in such a way as
to advance, and not reduce, the scope of the entrenched fair trial right’
contained in s34 of the Constitution.
[41] In these circumstances, I am of the view that the matter was of sufficient
urgency to justify the first applicant approaching the court on the notice
provided for in the notice of motion. It should be borne in mind that the
allegations against the respondents involve not only ongoing unlawful
conduct, but conduct that constitutes criminal offences. The first applicant has
a duty to safeguard the interests of residents and that must surely include a
duty to act in the public interest to prevent violations of zoning schemes and
the perpetration of offences. It must also be borne in mind that the issues
involved in this matter were known to the respondents well before the
application was launched: the letters from the first applicant’s attorneys to the
respondents’ attorneys are detailed and foreshadow what was to be contained
in the founding papers. The respondents cannot be said to have been taken
by surprise by the contents of the first applicant’s papers. I am consequently
of the view that the challenge to the urgency of the application must fail.
(b) Authority
[42] The founding affidavit was deposed to by Dawid Johannes Welgemoed
who is employed by the first applicant as the senior estates officer. He stated
that he was ‘duly authorised to bring this application and to depose to the
affidavit herein on behalf of the [first] applicant’.37 The respondents challenge
the authority of Mr Welgemoed pointing out that no resolution or written
authorisation forms part of the papers.38
35 See too Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A), 661EG. 36 [2002] 3 All SA 1 (SCA), para 9.37 Affidavit of Welgemoed, paras 12 (p5).38 Affidavit of Melville, paras7.1 and 7.2 (p99).
16
[43] In order to meet this challenge, the first applicant relies on three points.
First, in his replying affidavit, Mr Welgemoed stated that he had delegated
authority from the Chief Executive of the first applicant – the Municipal
Manager to ‘institute legal proceedings to ensure compliance of zoning and
related matters’.39 He attached the instrument that purports to give him this
authority.40 Secondly, the Municipal Manager, Mr ML Mangcotywa, stated that
he has authority to institute and defend legal proceedings on behalf of the first
applicant, that he took the decision to institute proceedings against the
respondents, that Mr Welgemoed acted at all times with his knowledge and
consent and that Mr Welgemoed consequently was, at all times, duly
authorised to bring the application on behalf of the first applicant.41 Thirdly, to
the extent that this may be necessary, Mr Mangcotywa claims to ratify and
authorise all of the actions of Mr Welgemoed in instituting these proceedings
on behalf of the first applicant.
[44] I intend to deal only with the second point, which will dispose of the issue.
I do so because it appears to me that it, in fact, is definitive of the nature of Mr
Welgemoed’s authority to act as well as of Mr Mangcotywa’s powers to
instruct Mr Welgemoed to act.
[45] Mr Goosen argued that Mr Mangcotywa’s power to institute proceedings
is derived from s55(1) of the Local Government: Municipal Systems Act 32 of
2000 that provides that a Municipal Manager is, inter alia, responsible and
accountable for ‘the management of the municipality’s administration in
accordance with this Act and other legislation applicable to the municipality’,42
for the ‘administration and implementation of the municipality’s bylaws and
other legislation’43 and for the ‘exercise of any powers and the performance of
39 Replying affidavit of Welgemoed, para11.1 (p120).40 Replying affidavit of Welgemoed, para 11.2 (p120) and annexure ‘DJW15’ (p141).41 Affidavit of Mangcotywa, paras 45 and 711 (p291293).42 Section 55(1)(b).43 Section 55(1)(l).
17
any duties delegated by the municipal council, or subdelegated by other
delegating authorities of the municipality, to the Municipal Manager in terms of
section 58’.44
[46] Provincial Notice 87 of 2000 disestablished five municipalities and
established in their stead the larger Nelson Mandela Metropolitan
Municipality. Section 10 of this notice saved all bylaws, regulations and
resolutions made or passed by the disestablished municipalities, until such
time as they were amended or repealed and made them applicable to the new
municipality. One such resolution of the erstwhile Port Elizabeth Municipality
delegated to the Chief Executive/Town Clerk – the predecessor in title of the
Municipal Manager – the power to ‘consider and take whatever action he may
deem necessary in all legal actions, legal applications and arbitrations’, to
‘take all action necessary to conduct litigation and arbitration in the best
interests of the Council’ and, perhaps most pertinently, in ‘the circumstances
in which, in his opinion, immediate action is required to protect the interests of
the Council or to enforce the regulations, tariffs or Town Planning Scheme of
the Council by way of interdict, mandamus or other court order, to institute or
intervene in any legal proceedings including criminal prosecutions or in any
court of law’.45
[47] Mr Beyleveld argued that Mr Mangcotywa was not entitled to delegate the
function of litigating on behalf of the first applicant to Mr Welgemoed as he
purported to do. This argument loses sight, in my view, of the distinction
between the taking of the decision to litigate, on the one hand, and the putting
into effect of that decision, on the other. The former is a discretionary
decision. The resolution places this decision in the hands of the Municipal
Manager who may institute proceedings to enforce the town planning scheme
of the first applicant if he forms the opinion that ‘immediate action is required’
44 Section 55(1)(m).45 The resolution is annexure ‘DJW15’ to the affidavit of Welgemoed (p141142). See too the affidavit of Mangcotywa, paras 45 (p291).
18
in this respect. I have little doubt that this discretionary decisionmaking power
may not be delegated in the absence of authorisation to do so.
[48] Mr Mangcotywa stated, however, that he took this decision – that he had
been briefed on developments in this matter, that Mr Welgemoed advised him
that ‘further legal action would be required in order to ensure compliance with
the [first] applicant’s zoning scheme’, that he ‘approved and authorised such
action’ and that Mr Welgemoed ‘was at all times acting with my knowledge
and consent and was accordingly at all times duly authorised to bring this
application on behalf of the [first] applicant’.46
[49] In other words, Mr Welgemoed did not exercise any discretionary powers
or perform any discretionary functions. His functions were purely mechanical.
He was simply the human face of the first applicant for purposes of giving
effect to the decision that had been taken by Mr Mangcotywa.
[50] The principle against delegation of delegated powers is not offended in
these circumstances. It is intended to ensure that when discretionary powers
are vested in an official because of his or her seniority, responsibility or
expertise, the purpose of the empowering provision cannot be defeated by a
delegation of authority to another official who does not possess the requisite
qualities.47 Nondiscretionary decisions – such as the giving effect to a
discretionary decision – would not defeat the purpose of the rule. Baxter
states the position thus:48
‘Powers which involve little or no discretion – socalled “purely
mechanical” powers – are usually delegable. Since there is no choice
46 Affidavit of Mangcotywa, paras 911 (p292293).47 See generally Baxter Administrative Law Cape Town, Juta and Co: 1984, 434442; De Smith, Woolf and Jowell Judicial Review of Administrative Action (5ed) London, Sweet and Maxwell: 1995, 6103 – 6112. Hoexter The New Constitutional and Administrative Law (Vol 2: Administrative Law) Cape Town, Juta and Co: 2002, 133136.48 At 439. See too the cases there cited, namely Shidiack v Union Government (Minister of the Interior) 1912 AD 642, 648; Jeewa v Donges NO and others 1950 (3) SA 414 (A), 420A421A; Kahn v Ceres Liquor Licensing Board 1954 (3) SA 232 (C), 237DH.
19
involved nothing is lost if the power is exercised by a subordinate. The
same may be said where the person designated by the legislation
directs his personal attention to those elements of the power which
involve discretion and then, having made a decision, leaves its
implementation to someone else.’
[51] On the above basis I conclude that it cannot be said that Mr Welgemoed
was not properly authorised to bring the application on behalf of the first
applicant. The challenge to his authority therefore fails and it is unnecessary
for me to consider whether or not Mr Mangcotywa could ratify his acts after
the event.
(c) Standing
[52] The respondents challenge the standing of the fourth respondent on two
grounds. In his answering affidavit, Mr Melville denied that ‘the fourth
respondent exists in law’ and ‘further denied that there is any necessity for
joining either such association which has no legal personality or the individual
constituent members as respondents in these proceedings’.49
[53] It is necessary to set out some details about the fourth respondent. It was
formed by the second, third, fourth and fifth applicants on 12 December 2002
who orally agreed to form a voluntary association ‘with the specific purpose to
sue and be sued in connection with enforcing the compliance by the
respondents with the rezoning conditions imposed on erven 1882 and 1883,
Walmer, as well as in connection with the common law nuisance created by
the respondents as a result of such noncompliance’.50 The terms of the
constitution of the fourth respondent were discussed between these founding
members and their attorney, Mr Martindale and rough amendments were
made to the constitution of an existing voluntary association to suit the
49 Affidavit of Melville, para 10 (p101). 50 Affidavit of Maasdorp, para 4.8.3 (p222223).
20
circumstances of the voluntary association that they were in the process of
forming. In due course, the constitution was typed and signed by the four
founding members. It was, however, backdated from 6 January 2003 – the
date of the signing to 12 December 2002 – the date of the oral agreement.51
The relevant provisions of the constitution of the fourth respondent are set out
below.52
[54] The preamble states, after noting that the Crazy Zebra is ‘causing a
nuisance and contravening the zoning laws by illegally operating a business
on erf 1882 Walmer, and the conditions of use of erf 1883’ and that attempts
by residents and landowners in the area to resolve this problem had been
unsuccessful, that the ‘the founding members agree to form an association for
carrying out a series of planned activities with the special aim of promoting
and protecting their constitutional and common law rights in relation to their
ownership of property and have agreed to the terms and conditions of their
association’. The name of the association thus created is the Victoria Park
Ratepayers Association.53
[55] Under the heading ‘Legal Status’ the constitution provides:54
’2.1 The Association is and shall continue to be a distinct and separate
legal entity with the power to acquire, to hold and to alienate property
of every description whatsoever and with the capacity to acquire rights
and obligations and having perpetual succession.
2.2 The Association is and shall be a juristic person and can act and be
acted against in its own name.
2.3 The property and funds of the Association vest in the Association,
51 Affidavit of Maasdorp, paras 4.8.4 4.8.6 (p223224). The evidence of Mr Maasdorp on the formation of the fourth respondent is criticised by the respondents but, despite this criticism, is unchallenged. See the affidavit of Melville, para 13 (p301304).52 The draft constitution is attached to the affidavit of Maasdorp as annexure ‘MM12’ (p241253). The signed constitution is attached to his affidavit as annexure ‘MM22’ (P264276). In what follows, I shall refer to the latter document.53 Para 1.54 I have not quoted paragraphs 2.4 and 2.5. They are not relevant for present purposes.
21
as a juristic person and no member of the Association shall be liable for
the debts of the Association.’
[56] The objects of the association are set out in paragraph 5 of the
constitution. This paragraph provides:
‘5.1 The main objects and powers of the Association are and shall be –
5.1.1. To protect the residential amenities which are presently
being adversely affected by the Crazy Zebra;
5.1.2. To take legal steps to end the nuisance caused by the
owner of the Crazy Zebra and to campaign for the promotion
and protection of the common law and constitutional rights of the
members and other ratepayers and residents who occupy or
who own properties surrounding No. 1 (Erf 1882) and No. 3 (Erf
1883), 3rd Avenue, Walmer, Port Elizabeth;
5.1.3. To campaign for procedurally fair, lawful and reasonable
conduct by the Nelson Mandela Metropolitan Municipality and
Provincial Government in respect of its rezoning decisions and
administrative actions in respect of Erven 1882 and 1883, Union
Road, Walmer, as well as its administrative action regarding the
conduct of the restaurant/pub business called the Crazy Zebra;
5.1.4. To oppose, defend and initiate and conduct in any manner
whatsoever as advised by its legal advisors, appropriate legal
proceedings in the High Court of South Africa, South Eastern
Cape Local Division, including a court of appeal and review, for
such relief as will give effect to the objects set out in paragraphs
5.1.1, 5.1.2 and 5.1.3 above.’
[57] Paragraph 7 of the constitution is headed ‘Limitations’. It provides that the
income and property of the association ‘shall be applied solely towards the
promotion of its objects, and no portion thereof shall be paid or transferred,
directly or indirectly, by way of dividend, bonus or otherwise howsoever, to the
22
members of the Association’. Paragraph 22.2 provides that upon the
dissolution of the association, its assets that remain after its debts have been
paid, ‘shall be given or transferred to some other association or institution or
associations or institutions having objects similar to the objects of the
Association’.
[58] Bamford defines a voluntary association as ‘a legal relationship which
arises from an agreement among three or more persons to achieve a
common object, primarily other than the making and division of profit’.55 Caney
and Brooks say the following of the formation of voluntary associations:56
‘An association is founded on a basis of mutual agreement. This entails
that it will come into being if the individuals who propose forming it
have the serious intention to associate and are in agreement on the
essential characteristics and objectives of the universitas or
unincorporated association. The latter aspect is usually manifested by
the approval and adoption of a constitution. For practical purposes it is
advisable, but not essential, to have a written constitution.’
[59] The fourth respondent came into being on 12 December 2002 when its
founding members agreed to form it and did so in the terms of the draft
constitution and with the ‘specific purpose to sue and be sued in connection
with’ forcing the respondents to comply with the applicable zoning laws and
the law of nuisance. The essentials for the creation of a voluntary association
were thus present: the association claimed separate legal personality,
perpetual succession, the ability to sue and be sued in its own name, a non
profit nature and came into existence to pursue the object, common to its
founders, to take legal and other steps to ensure that the Crazy Zebra did not
conduct business contrary to the zoning laws and in violation of the common
law rules relating to nuisance.
55 The Law of Partnership and Voluntary Association in South Africa (3ed) Cape Town, Juta and Co: 1982, 117.56 ‘Associations’ in Joubert (ed) The Law of South Africa (First Reissue) (Vol 1) Durban, Butterworths: 1993, para 455.
23
[60] I am of the view that the fourth respondent acquired a legal personality
separate from those of its members at common law and that it is thus a
universitas. In terms of its constitution it claims perpetual succession57 and the
right to hold property in its own right, distinct from its members.58 It is also
clear from its constitution that it is not required to be registered as a company
as it was not established, in the words of s31 of the Companies Act 61 of
1973, ‘for the purpose of carrying on any business that has for its object the
acquisition of gain by the association or by the individual members thereof’.59
As a result, it may sue and be sued in its own name. The respondents’
contention that it is does not exist in law is therefore unsound.
[61] Even if I am wrong in this regard, rule 14(2) of the uniform rules provides
that an association, defined by rule 14(1) as ‘any unincorporated body or
person, not being a partnership’, may ‘sue or be sued in its own name’. The
rule made it possible for the first applicant to sue the fourth respondent in its
own name but does not answer the ancillary question of whether it should
have sued the fourth respondent.60 It is to that issue that I now turn.
57 Fourth respondent’s constitution, para 2.1.58 Fourth respondent’s constitution, para 2.3.59 Fourth respondent’s constitution, para 7. See on these requirements for legal personality in terms of the common law, Morrison v Standard Building Society 1932 AD 229; Webb and Co Ltd v Northern Rifles;Hobson and Sons v Norhtern Rifles 1908 TS 462; Bantu Callies Football Club (also known as Pretoria Callies Football Club) v Motlhamme and others 1978 (4) SA 486 (T), 488G; Ahmadiyya Anjuman IshaatiIslam Lahore (South Africa) and another v Muslim Judicial Council (Cape) and others 1983 (4) SA 855 (C), 860H861A; African National Congress v Lombo 1997 (3) SA 187 (A), 195J196B; Interim Ward S19 Council v Premier, Western Cape Province and others 1998 (3) SA 1056 (C), 1060G1061B; Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council and others 2002 (6) SA 66 (T), paras 1718 . See too Bamford, op cit, 126131.60 The rule’s purpose has been dealt with by Horn AJ in Cupido v Kings Lodge Hotel 1999 (4) SA 257 (E). The learned judge held that it was ‘introduced in order to simplify the method of citation in respect of a number of situations where a business or businesses were being conducted or bore names which were descriptive of them’ and, most importantly for present purposes that the rule has ‘nothing to do with the substantive law concerning the nature and status of a defendant. It does not elevate a defendant to a status which it did not possess before’ (at 263BD). See too Interim Ward S19 Council v Premier, Western Cape and others supra, 1059CG; Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council and others supra, para 19. See further, for similar statements on the effect of rule 54 of the Magistrates’ Courts Rules, Scott v Golden Valley Supermarket [2002] 3 All SA 1 (SCA), para 9, in which Harms JA held that the rule did not ‘turn a partnership or firm into a
24
[62] The nub of the issue is whether the fourth respondent had a sufficient
interest in the subject matter of the dispute and that it was therefore
necessary for the first applicant to join it as a respondent in the proceedings.
[63] On 9 December 2002, shortly before the institution of these proceedings,
the founding members of the fourth respondent had taken part in a meeting
with the first applicant and the respondents. Prior to that, of course, the
founding members of the fourth respondent had been at the centre of
opposition to the rezoning of erf 1882 and had appealed against the decision
to rezone it. The first applicant had thus had dealings with the founding
members of the fourth respondent for some time.
[64] On 12 January 2003, the first applicant received a letter from the fourth
respondent’s attorney, Mr Martindale, in which he stated that the fourth
respondent had been formed, that it had a separate legal personality and that
its main objects was to ensure that ‘in relation to the rezoning of erven 1882
and 1883, Walmer, and the conduct of the current business under the name
Crazy Zebra’ the first applicant would act in accordance with the values that
are imposed upon the public administration by the Constitution, that it would
respect the rights of residents to lawful, reasonable and procedurally fair
administrative action and that it would uphold the rule of law. Mr Martindale
stated further that, as a result of what his clients perceived to be reliance on
‘stalling tactics and ‘red herrings’ on the part of the first applicant, he had
instructions to demand that he be advised urgently as to what the first
applicant intended to do to put a stop to the illegal activities at the Crazy
Zebra.61
[65] By the time that the application was launched, the first applicant was
different entity or into a juristic person, existing separately from its members or owner’ and that it ‘does not override other rules of more basic and general application’.61 Annexure ‘DJW12’ to the affidavit of Welgemoed (p5657).
25
aware of the existence of the fourth respondent and of what its aims and
objects were, in broad terms. Given the nature and subject matter of the
dispute, it would have been reasonable for the first applicant to have assumed
that the fourth respondent had a sufficient interest in the subject matter of the
dispute and, on that basis, to have cited it as a respondent.
[66] In addition to the above, the fourth respondent’s constitution expressly
gives it the power to sue or be sued in the furtherance of its objects, which
relate directly and unambiguously to the plans of the members of the fourth
respondent to force the Crazy Zebra, through litigation, to comply with the law.
In these circumstances, even under the restrictive pre1994 common law
rules of standing, courts recognised the standing of associations like the
fourth respondent to litigate on behalf of their members.62 Now, when courts
are required to develop the common law in accordance with the spirit, purport
and objects of the Bill of Rights;63 when s34 of the Constitution makes specific
provision for the entrenchment of a fundamental right of access to court; when
the rules of standing in their constitutional setting must be applied broadly;64
and when courts have developed the common law in similar situations to
recognise the standing of associations to act in the public interest or in the
interests of their members,65 there can be little warrant in not recognising the
standing of an association such as the fourth respondent to litigate on behalf
62 See Transvaal Indian Congress v Land Tenure Advisory Board and another 1955 (1) SA 85 (T), 89G90B; Ex Parte Natal Bottle StoreKeeping and OffSales Licensees’ Association 1962 (4) SA 273 (D), 276BF; Teachers Association of South Africa v Pillay 1993 (1) SA 111 (D), 116H118H. See too Hoexter The New Constitutional and Administrative Law (Vol 2: Administrative Law) Cape Town, Juta and Co: 2002, 273275. 63 Constitution, s39(2). See Carmichelle v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC), para 36.64 Ferreira v Levin NO and others; Vryenhoek and others v Powell NO and others 1996 (1) SA 984 (CC), para 165; Ngxuza and others v Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another 2001 (2) SA 609 (E); permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and another v Ngxuza and others 2001 (4) SA 1184 (SCA).65 Wildlife Society of Southern Africa and others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and others 1996 (3) SA 1095 (Tk); Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council and others supra, paras 2027. See too McCarthy and others v Constantia Property Owners’ Association and others 1999 (4) SA 847 (C).
26
of its members.
[67] The need to do so is all the more necessary in a context such as the
present case when the dispute is one in which private law, to which the
Constitution may not apply directly, and public law, to which the Constitution
does apply directly, are tightly interwoven, and in which the rights and
obligations of an organ of local government, and those of residents and
ratepayers are similarly closely interconnected. It is important to bear in mind
that s152(1)(e) of the Constitution provides that one of the objects of local
government is to ‘encourage the involvement of communities and community
organisations in the matters of local government’.
[68] For the above reasons, the respondents’ attack on the standing of the
fourth respondent fails.
[D] THE MERITS, SUSPENSION OF THE ORDER AND COSTS
(a) The Merits
[69] The basis upon which the lawfulness of the respondents’ conduct is
challenged by the applicants is different in respect of erf 1882 and erf 1883. It
is alleged that the respondents are in breach of the zoning conditions
applicable to erf 1882 and on that ground ought to be interdicted from carrying
on business there. In respect of erf 1883, it is argued, the respondents are not
entitled to use the erf, in accordance with the terms of the zoning conditions,
in such a way as to cause a common law or statutory nuisance and they
ought to be interdicted from doing so.
[70] Erf 1882 is currently zoned for residential use. Erf 1883 is zoned for
business purposes.66 During 2002, however, the respondents applied to the
66 Affidavit of Welgemoed, para10 (p7).
27
first applicant for the rezoning of erf 1882 and for the amendment of the
zoning conditions applicable to erf 1883.67 These applications were
successful: erf 1882 was rezoned from residential to business use and the
zoning conditions applicable to erf 1883 were amended.68 The letter from the
first applicant to the first respondent to inform it of the success of the
applications sets out a number of conditions that attach to the rezoning and
the amendment.69
[71] The third applicant appealed against these decisions,70 although it would
appear that only the decision to rezone is appealable.71 The appeal lies to the
Premier of the Province and it has not been determined yet.
[72] Regulation 20 of the regulations made in terms of s47 of the Land Use
Planning Ordinance 15 of 198572 provides that when an application for
rezoning in respect of which objections have been made is granted, the
Municipal Council concerned ‘shall point out to the applicant not to act on the
said approval until such time as it is confirmed in writing that no appeal has
been received; provided that where an appeal is received, the said approval
shall be suspended’. This means that, until such time as the appeal has been
decided by the Premier, erf 1882 may only be used for residential purposes.
To use land otherwise than in accordance with applicable zoning conditions
constitutes an offence in terms of s39(2), read with s46(1) of the Land Use
Planning Ordinance.
[73] It is common cause that erf 1882 was being used for business purposes
by the respondents at the time when the application was brought. Mr Melville
admits this in as many words. For instance, he stated that ‘I operate the
business and restaurant known as the Crazy Zebra, the business which is
67 Affidavit of Welgemoed, para 12.8 (p11).68 Affidavit of Welgemoed, para 13 (p12).69 Annexure ‘DJW2’ to the affidavit of Welgemoed (p3235).70 Annexure ‘DJW17’ to the affidavit of Welgemoed (p148155).71 This was conceded by both Mr Goosen and Mr Mouton.72 Provincial Notice 1050 of 1988.
28
conducted not only on Erf 1883 but also on Erf 1882, Walmer’.73 In answer to
Mr Slabbert’s averment that when he conducted his noise survey he observed
that erf 1882 was being used for business purposes, Mr Melville admitted that
this erf was, at the time, used ‘for business purposes but it is denied that it
was contrary to the applicable zoning of the property’.74
[74] On this basis alone, the respondents’ use of erf 1882 is unlawful and it is
not necessary for me to consider the arguments in respect of the respondents’
failure to comply with the conditions upon which the rezoning was dependant.
[75] The position is different in respect of erf 1883. It was zoned for business
use and the amendment of the conditions applicable to it is not subject to an
appeal. The case of the applicants is not that the use of erf 1883 for the
purposes for which it is being used is unlawful, but rather that the manner of
its use is: by causing loud music to be played, the respondents have
contravened the Noise Control Regulations75 made under the Environmental
Conservation Act 73 of 1989, and have caused a nuisance at common law.
On both accounts, it is argued, the conduct of the respondents is unlawful and
ought to be interdicted.
[76] The amended condition (xiv) that applies to the use of erf 1883 is to the
effect that the respondents may not ‘cause or permit the playing of music that
is audible outside of the restaurant buildings or music which is played inside
of the restaurant buildings and is audible outside of the restaurant buildings to
the extent that it causes any type of common law nuisance, except that
amplified music may be played in the outside alfresco dining area on any
Friday and Saturday of any week and only until 22:30’.76
73 Affidavit of Melville, para 13 (p101).74 Affidavit of Melville, para 57.1 (p113).75 Government Notice R638 promulgated in Government Gazette 13096 of 28 March 1991. Regulation 1 contains a definition of a noise nuisance. It defines this term to mean ‘any sound which disturbs or impairs or may disturb or impair the convenience or peace of a person’.76 Annexure ‘DJW2’ to the affidavit of Welgemoed (p32).
29
[77] The respondents argue that the condition, because it allows the playing of
amplified music, in effect authorises the respondents to cause a nuisance on
Friday and Saturday nights until 22:30.
[78] Before turning to whether the evidence establishes a breach of the Noise
Control Regulations or that the conduct of the respondents amounts to a
nuisance at common law, this argument must be dealt with briefly. I agree
with Mr Mouton when he described the condition as being ‘unhappily worded’
because of the explicit prohibition on the causing of a common law nuisance
in the playing of music generally, followed by the phrase ‘except that amplified
music may be played in the outside alfresco dining area on any Friday and
Saturday of any week and only until 22:30’.
[79] Despite the unhappy wording, there are three reasons that spring to mind
why the interpretation contended for by the respondents cannot prevail. First,
administrative action that ‘contravenes a law or is not authorised by the
empowering provision’ is liable to be reviewed and set aside in terms of s6(2)
(f)(i) of the Promotion of Administrative Justice Act 3 of 2000, being an
infringement of the fundamental right to lawful administrative action. If the first
applicant intended to give permission to the first respondent to act unlawfully,
it did not have the lawful authority to do so. Secondly, the Noise Control
Regulations themselves make provision for the lawful causing of noise
nuisances in three sets of circumstances: to warn people of dangers, in an
emergency and if a person has applied successfully in writing to an organ of
local government for an exemption from any of the provisions of the
regulations.77 There is no suggestion that the respondents made such an
application. Thirdly, when interpreting statutes and statutory instruments,
courts may assume, in the absence of clear indications to the contrary that,
when conduct is referred to, the drafter intended to refer to lawful conduct,78
77 Regulation 7.78 Steyn Uitleg van Wette (5ed, by Van Tonder, Badenhorst, Volschenk and Wepener) Cape Town, Juta and Co: 1981, 127.
30
that unfair, unjust and unreasonable results were not intended79 and that the
legislator intended that enactments should be consistent with the existing law
and should not alter the common law or statute more than is necessary.80
[80] The evidence upon which the applicants argue that the respondents have
contravened the Noise Control Regulations was given by two experts, Mr
Jacobus Slabbert, a senior environmental health practitioner employed by the
first applicant, Mr Mhlayifani Titima, a divisional environmental health
practitioner, also employed by the first applicant.
[81] Mr Slabbert conducted a noise survey on 13 and 14 December 2002 at a
property adjacent to erfs 1882 and 1883. He stated that his results ‘indicate
that the noise levels exceeded the ambient sound level by 7dBA and more,
therefore constituting a disturbing noise as defined in terms of the Noise
Control Regulations’ and that it was his opinion that ‘the noise levels
emanating from the business known as the Crazy Zebra constitute a noise
nuisance in respect of the adjacent residential properties’.81 In his report, he
sets out in detail the equipment he used, the tests he conducted and their
results, the standards he applied and his conclusions.82 One of his
conclusions is the following:83
‘The biggest problem exists when the live bands are performing and/or
recorded music is being played in the outside alfresco dining area as it
is impossible to soundproof an open area where sound waves are
travelling in different directions. It appears as if no proper sound
barriers between the Crazy Zebra premises and the complainant’s
premises and/or adequate noise attenuation measures which could
absorb some of the sound generated by the playing of amplified music,
is installed.’
79 Steyn, op cit, 101103.80 Steyn, op cit, 97. See too Kellaway Principles of Legal Interpretation Durban, Butterworths: 1995, 335.81 Affidavit of Slabbert, paras 1011 (p64).82 Annexure ‘JS3’ to the affidavit of Slabbert (p8487).83 Annexure ‘JS3’ to the affidavit of Slabbert (p87).
31
[82] Mr Titima conducted a noise survey at premises adjacent to the Crazy
Zebra on 20 December 2002. He too found that ‘the noise level exceeded the
ambient sign level by 7dB or more thus constituting a disturbing noise as
defined in terms of the Noise Control Regulations’ and that, in his opinion, ‘the
noise level emanating from the business known as the Crazy Zebra
constituted a noise nuisance in respect of the adjacent residential
properties’.84
[83] This evidence must be regarded together with the evidence of Mr
Maasdorp (whose evidence about the noise levels is confirmed by Ms
Beverley Lovemore,85 the wife of the third applicant, and confirmed in general
by the fourth applicant86 and the fifth applicant87). Mr Maasdorp said the
following about the noise from the Crazy Zebra:88
‘It is further to be noted that the noise nuisance is not only determined
by experts such as Mr Slabbert who are capable of according a
numerical value to the levels of noise created by the Crazy Zebra
Restaurant. The plain and simple fact of the matter is that especially on
Friday and Saturday nights, but also on certain other nights
(particularly Wednesday nights), the music is so loud that residents
have to close their doors and windows and turn up their television sets
or radios in order to endeavour to drown out the music and to listen to
their own entertainment. On many, many occasions, it is impossible for
us to invite our friends to visit us socially since it would be an almost
impossible task to carry on conversation and it would in any event be
most unpleasant for them to be exposed to the incessant loud music.
Many of us cannot fall asleep anymore without the aid of sleeping
tablets and the constant noise has caused severe stress in some of us,
84 Affidavit of Titima, paras 1011 (p159).85 Affidavit of Beverley Lovemore, para 2 (p201) who described the noise that emanated from the Crazy Zebra as ‘unbearably loud’. 86 Affidavit of Thomas Ellis (p203204).87 Affidavit of Gideon Rossouw (p205206).88 Affidavit of Maasdorp, para 17 (p169170).
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particularly Mr Lovemore, who is not in good health.’
[84] As against this evidence, the respondents allege that the noise is not as
bad as alleged, that the residents in the vicinity of the Crazy Zebra do not
have a valid complaint about the noise, that they live in a noisy area close to
the airport and that the noise that does emanate from it does not constitute a
noise nuisance in terms of the Noise Control Regulations or a nuisance in
terms of the common law. (I leave aside the assertion that condition (xiv)
permits the respondents to make as much noise as they like on Fridays and
Saturdays before 22:30, as this argument has been dealt with above.)
[85] In support of these defences, the respondents rely on two witnesses. The
first is Mr Wessel Coleske, a resident who lives next to erf 1883. He stated
that he does not find that ‘the music played at the restaurant constitutes a
public nuisance and if it might be a trifle loud, all it takes is a telephone call to
the second respondent to sort it out’.89 The second witness is Mr Steven
Frost, a businessman involved in the sound industry. He took issue with the
findings of Mr Slabbert (as well as with the contents of a report ostensibly
compiled by a Mr Williams, which is attached to the affidavit of Mr Maasdorp)
and stated that, on 22 and 24 January 2003, he ‘conducted intermittent noise
recordings in the vicinity of erf 1882 and [erf] 1883 Walmer’.90
[86] Despite this, I am of the view that the applicants have discharged the
onus resting on them to establish the noise nuisance that they allege. Mr
Slabbert measured the noise levels over two evenings, without the
respondents being aware that he was doing so. Mr Titima, whose evidence
and conclusions are not challenged did the same and arrived at the same
conclusions. Their findings are in accordance with the evidence of the second
applicant and the third applicant’s wife. Even if one ignores the evidence of
Mr Slabbert, the evidence of Mr Titima remains unchallenged. The evidence
89 Affidavit of Coleske, para 6 (p117A).90 Affidavit of Frost, paras 34 (p326327).
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of Mr Coleske does not take matters much further: its import is that although
there is noise that emanates from the Crazy Zebra, he can tolerate it and it is
not as bad as it could be. Mr Frost’s report raises some queries about Mr
Slabbert’s methodology but this is not sufficient to raise a genuine dispute of
fact. Nor is the fact that, when he conducted his tests at the request of, and
presumably with the knowledge of the respondents, he did not find that, on
those evenings, the noise was excessive.
[87] Mr Mouton urged me to use the robust approach that Price JP advocated
in Soffiantini v Mould.91 The learned Judge President held as follows:92
‘If by a mere denial in general terms a respondent can defeat or delay
an applicant who comes to Court on motion, then motion proceedings
are worthless, for a respondent can always defeat or delay a petitioner
by such a device.
It is necessary to take a robust, commonsense approach to a dispute
on motion as otherwise the effective functioning of the Court can be
hamstrung and circumvented by the most simple and blatant
stratagem. The Court must not hesitate to decide an issue of fact on
affidavit merely because it may be difficult to do so. Justice can be
defeated or seriously impeded and delayed by an overfastidious
approach to a dispute raised in affidavits.’
[88] The overwhelming weight of the evidence and the probabilities compel
the conclusion that the respondents run their business in contravention of the
Noise Control Regulations and that they thereby cause a noise nuisance on
Friday and Saturday nights by allowing music to be played at unacceptably
loud volumes. When this evidence is placed in the scales with: the denials of
the respondents; their assertions that they are entitled to conduct their
business in this way; the obfuscatory attacks on the good faith of Mr
Welgemoed, the second, third, fourth and fifth applicants; the vague
91 1956 (4) SA 150 (E).92 At 154FH.
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allegations of conspiracies; and the equally vague report by Mr Frost on the
tests he conducted and his sniping at the methodology of Mr Slabbert, I am
compelled to the conclusion that, on a robust and commonsense approach to
the facts, the case of the applicants for a contravention of the Noise Control
Regulations has been established on a balance of probabilities.93 In these
circumstances I am of the view that the dispute of fact that is said to exist is
not a ‘real, genuine or bona fide dispute of fact’ and I am, furthermore
satisfied as to the ‘inherent credibility’ of the applicants‘ version as to the
noise level that emanates from the Crazy Zebra.94 I am also satisfied that oral
evidence ‘would not disturb the balance of probabilities appearing from the
affidavits’.95
[89] It has thus been established, in my view, that the sound that emanates
from the Crazy Zebra and that forms the basis of the complaint against the
respondents is indeed sound that disturbs or impairs (or at the very least, that
may disturb or impair) the convenience or peace of the second, third, fourth
and fifth applicants, and probably of other people living in the area too.96 In
terms of regulation 5(a), read with regulation 9, it is a criminal offence,
punishable by way of a fine not exceeding R20 000.00 or imprisonment not
exceeding two years, or both (for first offenders) to ‘cause a noise nuisance,
or allow it to be caused, by operating or playing any radio, television set,
drum, musical instrument, sound amplifier, loudspeaker system or similar
device producing, reproducing or amplifying sound’.
93 See S v Haarburger 2002 (1) SACR 546 (C), paras 2021 in which a conviction for causing a noise nuisance was upheld on the basis of the complainant’s evidence, and that of two policemen, while the appellant and another of his witnesses denied that the music that he was playing was loud. No scientific evidence of noise levels was relied upon in this case. 94 PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), 634I635B.95 Administrator, Transvaal and others v Theletsane and others 1991 (2) SA 192 (A), 197B.96 See in this regard the petition, signed by 23 people, attached to the affidavit of Maasdorp as annexure ‘MM2’ (p182), that contains a complaint that ‘[s]ince the reopening of the Crazy Zebra the noise level on Friday and Saturday nights emanating from these premises, when they have their live band music, is totally unacceptable. The music can be heard as far as Fordyce Road’.
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[90] The unlawfulness of the respondents’ conduct has thus been established
in respect of erf 1883 and it is unnecessary for me to deal with whether this
conduct also constitutes a nuisance at common law. The applicants have
established an entitlement to an interdict in respect of the activities of the
Crazy Zebra on both erf 1882 and 1883. The precise terms of the order will be
dealt with below.
(b) Suspension of the Order
[91] Mr Beyleveld has argued that if I find that the conduct of the respondents
ought to be interdicted, I should suspend the operation of an order to that
effect until the appeal against the rezoning of erf 1882 has been dealt with. As
there is no appeal against the amendment of the conditions that apply to the
use of erf 1883, there can be no question of a suspension of an order that is
made concerning it.
[92] The grounds upon which Mr Beyleveld relies are essentially that the
closure of the Crazy Zebra while the Premier considers the appeal will cause
economic hardship to the respondents and those they employ and that the
prospects of Mr Lovemore’s appeal succeeding are slim. In these
circumstances I am urged to exercise a discretion in the interests of equity
and because the balance of convenience favours the respondents.
[93] Mr Goosen has argued that no general discretion exists that allows a
court to permit unlawful conduct to continue, that while it may be that a
discretion of limited nature may be exercised in exceptional circumstances,
such circumstances are not present in this case and the conduct complained
of is criminal conduct, and that there is no basis upon which to assume that
the appeal is a foregone conclusion.
[94] I am of the view that a court does not have a general discretion, having
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found conduct of a respondent to be unlawful and criminal, to suspend its
order that would put an end to that conduct. I am therefore in respectful
agreement with Harms J in United Technical Equipment Co (Pty) Ltd v
Johannesburg City Council97 in this regard. Even if a limited discretion exists
to cater for exceptional circumstances, this is not such a case. Indeed, in this
case, considerations of policy and good governance point in the opposite
direction: to suspend an order would, as in the United Technical Equipment
Co (Pty) Ltd case, have the effect of presenting the Premier and the first
applicant with a fait accompli engineered through the respondents’ own
unlawful conduct98 and it would also have the effect of undermining the
confidence of ratepayers and residents in the ability of the courts, the Premier
and the first applicant to perform their constitutional and statutory functions
and safeguard the rights and interests of ratepayers and residents in a lawful,
reasonable and fair manner. In the absence of the type of exceptional
circumstances that were present in CD of Birnam (Suburban) (Pty) Ltd and
others v Falcon Investments Ltd99 the suspension of an order would, in my
view, amount to an abdication of judicial responsibility. For good reason, such
a course finds no support in our case law.
[95] Secondly, as Harms J held in the United Technical Equipment Co (Pty)
Ltd case, a lenient approach to unlawful land use may be regarded as an
open invitation to members of the public to simply use their land as they want,
irrespective of the zoning laws, in anticipation of their unlawful use being
legalised in due course.100 It is obvious that this type of approach strikes at the
legitimacy of the law as an instrument for the effective and fair regulation of
the competing rights and interests of communities and as the means to
safeguard and advance the public interest. Thirdly, and perhaps most
importantly, a suspension of the order I plan to make would amount to
97 1987 (4) SA 343 (T), 347G.98 At 348H.99 1973 (3) SA 838 (W). See too Huisamen and others v Port Elizabeth Municipality 1998 (1) SA 477 (E), in which the CD of Birnam matter was discussed. 100 At 348IJ.
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condoning criminal behaviour in circumstances in which the respondents have
acted with what may best be described as contempt for the law.101
[96] In the light of the above, I am of the view that, to the extent that I may
have a discretion to suspend the order that I will make, the facts of this matter
do not qualify as being exceptional and that, consequently, no basis exists for
me to exercise such a discretion.
(c) Costs
[97] In the light of the conclusions that I have reached, the costs of the
application are to be borne by the first and second respondents, there being
no reason why costs should not follow the result.
[98] I should add, however, that at the outset of the hearing I dismissed the
application of the first applicant for a postponement. This application was
opposed by the second, third, fourth and fifth applicants (who were then
applying to intervene) and the fourth respondent, but was supported by the
first and second respondents. The costs of this application should also follow
the result, as should the costs of the application by the second, third, fourth
and fifth applicants to intervene, which was opposed by the first and second
respondents.
[E] THE ORDER
[99] For the reasons set out above an order is made:
a) restraining the first and second respondents from utilising or causing to
be used erf 1882, Walmer, Port Elizabeth, situated at 1, 3rd Avenue,
Walmer, Port Elizabeth (hereafter referred to as erf 1882), for any
purpose other than residential 1 use, in accordance with the current
101 At 349FG.
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zoning of this property;
b) restraining the first and second respondents from in any manner
conducting the business known as the Crazy Zebra, or any other
business, from erf 1882 until such time as the erf is appropriately
rezoned to authorise such use;
c) directing the first and second respondents to take such steps as may
be required to abate the noise nuisance occasioned by their use of erf
1883, Walmer, Port Elizabeth, situated at 3, 3rd Avenue, Walmer, Port
Elizabeth (hereafter referred to as erf 1883);
d) declaring that zoning condition (xiv) applicable to erf 1883 does not
authorise the first and second respondents to cause a noise nuisance;
e) directing the first applicant to pay the costs of the second, third, fourth
and fifth applicants and the fourth respondent occasioned by the
application for a postponement on 30 January 2003;
f) directing the first and second respondents, jointly and severally, the
one paying, the other to be absolved, to pay the costs of the second,
third, fourth and fifth applicants, occasioned by its opposition to their
application to intervene;
g) directing the first and second respondents, jointly and severally, the
one paying, the other to be absolved, to pay the costs of the main
application.
_______________________
C. Plasket
Acting Judge
Date Argued: 30 January 2003
Date of Judgment: 21 February 2003
Counsel for the first applicant: Mr G Goosen
Counsel for the second, third, fourth, fifth applicant and the fourth respondent:
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Mr C Mouton SC
Counsel for the first and second respondents: Mr A Beyleveld
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