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[2020] ZAWCHC 93
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Foster v Kirst (8526/2019) [2020] ZAWCHC 93 (1 July 2020)
SAFLII
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Certain
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THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:8526/2019
21464/2018
Before
the Hon. Ms Justice Slingers
Hearing:
15 and 17 June 2020
Judgment
Delivered:
1 July 2020 {electronically)
In
the matter between:
TREVOR
NORMAN
FOSTER
Applicant / Plaintiff
and
CLEM
PATRICK
KIRST
Respondent/ Defendant
JUDGMENT
SLINGERS
J
INTRODUCTION
[1]
Although the applicant and the respondent are neighbours, their
relationship cannot be described as neighbourly. On the contrary,
it
would be more appropriate to describe their relationship as hostile
and acrimonious. As a result hereof, the applicant resorted
to
litigation and on 4 February 2019 he obtained a court order finally
interdicting the respondent from causing a
"noise nuisance
and/or noise disturbance"
("the court order").
[2]
Following the granting of the court order, the applicant instituted
contempt of court proceedings against the respondent for
breaching
the terms thereof and the respondent instituted a counter-application
to rescind the court order.
[3]
For the sake of convenience, in this judgment I refer to the
plaintiff, Trevor Norman Foster as the applicant and to Clem Patrick
Kirst, the defendant as the respondent.
[4]
I deal firstly with the counter-application to rescind the court
order.
THE
RESCISSION APPLICATION
[5]
The rescission application is brought in accordance with the
provisions of Rule 42(1)(a), alternatively in terms of Rule 31(2)(b)
and the common law.
RULE
42(1)(a)
[6]
Rule 42(1)(a) reads as follows:
'The court may, in
addition to any powers it may have, mero motu or upon the application
of any party affected, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby.'
[7]
The
respondent resorted to bringing the rescission application in terms
of Rule 42(1)(a) as he allegedly did not receive the summons
instituting the nuisance action against him nor was he afforded a
sufficient opportunity to deal with the default judgment application.
This, he alleges constituted a fundamental and material procedural
flaw in the granting of the final interdict.
[1]
[8]
It is common cause that after the respondent received notice on 31
January 2019 of the default judgment application, which was
to be
heard on 4 February 2019, his legal representative directed a request
to the applicant's legal representatives for a postponement.
The
postponement was requested to afford the respondent an opportunity to
consult and take legal advice. However, this request
was refused but
when the default judgment application was called on 4 February 2019
there was no appearance for the respondent.
Furthermore, no notice of
opposition to the default judgment application was served and/or
filed. No reasons and/or explanations
for these omissions are
furnished in the rescission application and during the hearing of the
application, advocate Cutler for
the respondent, was unable to
furnish any explanation therefor. In the circumstances, the papers do
not furnish a proper explanation
for the respondent's default.
[9]
As the respondent received the default judgment application which
informed him that:
'BE PLEASED TO TAKE
NOTICE that the plaintiff intends to make application ...on Monday, 4
February 2019, or so soon thereafter as
Counsel for the Plaintiff may
be heard for Default Judgment against the Defendant on the following
terms:
1. The Defendant is
finally interdicted from causing
a
"noise nuisance and/or
disturbance" by shouting or raising his voice, including but not
limited to uttering any profanity,
near or on the premises known as
[…] Avenue, Camps Bay such that the Defendant's utterances can
be heard by the Plaintiff,
guest or other occupant whilst the
Plaintiff, guest or other occupant is on the premises known as […]
Road, Camps Bay, Western
Cape;
2.
..
3.
he
was adequately informed of the relief that may be granted in his
absence. Furthermore, in the absence of an explanation for the
failure to attend at court on 4 February 2019 as well as the failure
to file and/or serve a notice of opposition, it may be said
that the
respondent failed to take the necessary steps to protect his
interests.
[2]
In the
circumstances, the applicant was procedurally entitled to the
granting of the final interdict.
[10]
Judgments
granted against a party as a result of that party not defending the
action, notwithstanding its intention to do so, does
not constitute
an erroneously granted judgment.
[3]
Further, as the applicant was procedurally entitled to the granting
of the court order it cannot be said that it was granted erroneously
in the absence of the respondent
[4]
and the respondent's reliance on Rule 42(1)(a) is misplaced and
without any merit.
RULE
32(1)(b)
[11]
Rule 32(1)(b) reads as follows:
'A defendant may
within 20 days after acquiring knowledge of such judgment apply to
court upon notice to the plaintiff to set aside
such judgment and the
court may, upon good cause shown, set aside the default judgment on
such terms as it deems fit.'
[12]
The
respondent learnt of the court order on 6 February 2019
[5]
and brought the rescission application on or about 13 September 2019.
Where the application is brought outside the 20 day period,
the
applicant may, on good cause, seek condonation for the late bringing
thereof. In the present matter no condonation is sought
for the late
bringing of the application and the non-compliance with the
prescribed 20 day period. Consequently, the rescission
application is
not properly before court in terms of Uniform Rule 31(2)(b).
[13]
In the circumstances, the respondent's reliance on Rule 32(1)(b) in
bringing the rescission application is also misplaced.
THE
COMMON LAW
[14]
The respondent may also avail himself to the common law to rescind
the court order. To succeed with rescission in terms of
the common
law the respondent must show good cause by:
(a) giving a
reasonable explanation for the default;
(b) showing that
the application is
bona fide;
and
(c)
establishing
a
bona
fide
defence
which has some prospect of success.
[6]
[15]
As set out above, the respondent has failed to establish a reasonable
explanation for his default.
[16]
In terms of
the common law a rescission application must be brought within a
reasonable time-period
[7]
, and
the circumstances of each case would dictate what would constitute a
reasonable time period within which to bring the application.
However, as stated in
Nkata
v Firstrand Bank Ltd
&
Others
2014
(2) SA 412
(WCC), the 20 day time period prescribed in Rule 31(2)(b)
provides some guidance as a starting point as to what would
constitute
a reasonable time period.
[17]
In dealing
with the delay in bringing the rescission application the respondent
states that he consulted with his attorney after
receiving the
contempt of court application and with counsel on 22 May 2019.
However, at that stage they were not in a position
to effectively
answer the allegations contained in the founding affidavit in the
contempt application.
[8]
He then
proceeds to set out the steps taken to enable him to do so. Whilst
this explanation may explain the delay in furnishing
a response to
the founding affidavit in the contempt application, it fails to
explain why the rescission application was not brought
sooner.
[18]
I turn now to consider whether or not the application is
bona
fide.
The respondent took no steps to rescind the final interdict
nor did he consult a legal representative about the final interdict
until he received the contempt of court application. He unequivocally
states that:
(i).
'I
have at all times since receiving the final interdict order tried my
best to comply with it';
(ii).
'I
didn't think the existence of the final interdict would be
a
problem';
(iii).
'I
thought I could simply comply with it';
and
(iv).
'The
problem which
has
now arisen
is
the fact that the
Plaintiff
is
of the view that I
am
in breach of the
final interdict order.'
[19]
Based on the above excerpts it is questionable whether or not the
respondent would have instituted the rescission application
had he
not been faced with the contempt application. It is common cause that
the rescission application was brought as a counter-application
to
the contempt application and not because the respondent took issue
with the court order being granted against him. This brings
into
question the
bona tides
of the application.
BONA
FIDE
DEFENCES
[20]
The respondent alleges that the summons giving rise to the default
judgment is excipiable in that it fails to allege that his
conduct is
unreasonable. However, the particulars of claim pleads that '...
the
Defendant's conduct referred to above constitutes a nuisance and
is
actionable by the Plaintiff ("the nuisance').
In his
combined affidavit, the respondent states that a
'nuisance
is
only actionable in the event that my
use
of my property
is
in the circumstances unreasonable.'
[21]
The unreasonableness of the respondent's conduct is contained in the
allegation that his conduct is actionable. The manner
in which the
nuisance is pleaded allows the respondent to fully answer thereto and
therefore, cannot be said to be vague and embarrassing
or lacking the
averments to sustain the cause of action.
[22]
In the circumstances, the particulars of claim is not excipiable and
there is no merit in this defence.
[23]
The respondent states that his conduct has never been unreasonable
nor that it constitutes a noise nuisance. He goes on to
state that
the term
'noise nuisance'
is set out in the Western Cape Noise
Control Regulations 2013 and that it is defined as a noise, excluding
the unamplified human
voice, which exceeds the rating level of 7dBA
or exceeds the residual level where the residual level is higher than
the rating
level. Furthermore, the respondent argues that the
applicant has put up no noise measurements and has failed to make the
necessary
averments or to provide the necessary evidence to bring the
respondent within the definition of the Noise Control Regulations.
However, this argument fails to consider that the applicant's claim
is not based on a contravention of the Western Cape Noise Control
Regulations, 2013 but on the common law of nuisance. The respondent's
reliance on the applicant's failure to provide evidence to
bring his
conduct within the definition of the Noise Control Regulations is
also misplaced.
[24]
Having regard to the respondent's failure to explain his default, the
absence of
bona fide
defences, the failure to satisfactorily
explain the delay in bringing the rescission application together
with the questionable
bona tides
thereof, I find that the
respondent has failed to establish the good cause necessary to
succeed with the rescission application
in terms of the common law.
THE
CONTEMPT APPLICATION
[25]
I turn now to the contempt application.
[26]
The court order which forms the subject matter of the contempt
application reads as:
'Having read the
papers and having heard Counsel for the Plaintiff, the Court orders
as follows:
1.
The
Defendant is finally interdicted from causing a "noise nuisance
and/or disturbance" by shouting or raising his voice,
including
but not limited to uttering any profanity, near or on the premises
known as [...] Avenue, Camps Bay such that the Defendant's
utterances
can be heard by the Plaintiff, guest or other occupant whilst the
Plaintiff, guest or other occupant is on the premises
known as [...]
Road, Camps Bay, Western Cape;
2.
Costs
of suit.'
[27]
In order to
succeed with the contempt application, the applicant must prove
(i)the existence and service or notice of the final
interdict and
(ii)non-compliance with the terms thereof. Thereafter, the respondent
bears an evidentiary burden to show that the
non-compliance was not
wilful nor ma/a
fide.
[9]
[28]
It is common cause that the court order was served on the respondent
on 6 February 2019. Thus, the existence and service or
notice
component of establishing the contempt is established.
[29]
Before it
can be determined whether or not the applicant established non
compliance with the terms of the court order, the
exact conduct that
was prohibited must be identified. The same rules applicable to
interpreting the construction of documents are
applicable to the
interpretation of court orders. In terms hereof, the court's
intention has to be ascertained primarily from the
language of the
order read as whole. If on reading of the order, the meaning is clear
and unambiguous, no extrinsic fact or evidence
is admissible to
contradict, vary, qualify or supplement it. But if any uncertainty in
meaning does emerge, the extrinsic circumstances
surrounding or
leading up to the granting thereof may be investigated and regard may
be had thereto in order to clarify it.
[10]
[30]
Upon a reading of the order it is clear and unambiguous that the
conduct that is being prohibited is the creation of a
noise
nuisance and/or disturbance.
This much is clear from the sentence
-'The Defendant is finally interdicted from causing a "noise
nuisance and/or disturbance".
The shouting or raising of the
voice and/or the use of profanity is simply the means by which the
noise nuisance/ disturbance is
created.
[31]
During the hearing of the matter the question was posed to advocate
Gassner, for the applicant, whether or not the court only
had to find
that the respondent had shouted or raised his voice or whether or not
the court had to find that the respondent had
caused a noise nuisance
and/or disturbance. Advocate Gassner submitted that it would be
sufficient for the court to find that the
respondent had shouted or
raised his voice. It was put to the applicant that on this reasoning
if the respondent shouted a warning
of
"fire"
he
would have contravened the terms of the final interdict. In response
hereto, it was submitted that the element of
wilfulness
would
ensure that the respondent was not incorrectly found guilty of
contempt. However, this argument conflates the different elements
required to establish contempt and ignores the fact that the
applicant must first establish a contravention before the respondent
is called upon to show that the contravention was not wilful nor ma/a
fide.
Furthermore, this argument presupposes that the conduct
amounted to a breach of the final interdict without establishing
same. This
approach would absolve the applicant from discharging its
onus necessary to establish contempt.
[32]
Had the respondent been prohibited from merely shouting and/or
raising his voice, the order would have read differently and
quite
possibly as
the defendant is finally interdicted from shouting or
raising his voice, including but not limited to uttering any
profanity, near
or on the premises known as […] Avenue, Camps
Bay such that the Defendant's utterances can be heard by the
Plaintiff, guest
or other occupant whilst the Plaintiff, guest or
other occupant is on the premises known as […] Road, Camps
Bay, Western
Cape;
[33]
Therefore, to establish the respondent's contempt, the applicant must
show that he created a noise nuisance and/or disturbance.
[34]
Nuisance is
conduct which is defined as
'conduct
whereby
a
neighbour's
health, well-being or comfort in the occupation [and use] of his or
her land is interfered with
...as
well
as
the
causing of actual damage to the neighbour.
[11]
Private
nuisance has been described as
'an
act or omission or state of affairs that impedes, offends, endangers
or inconveniences another in the ordinary comfortable use
or
enjoyment of land or premises.'
[12]
[35]
Therefore, to establish a contravention of the order, the applicant
must show that the respondent's shouting and/or use of
profanity
negatively affected his well being or comfort in the use of his
property and/or that it negatively impacted his
ordinary use and
enjoyment of his property.
[36]
Although the founding and supplementary founding affidavits set out
numerous incidents of the respondent shouting and/or speaking
loudly
and/or using profanity, it fails to set out how this conduct impeded
the applicant's well-being and/or comfort and/or ordinary
use and
enjoyment of his property.
[37]
In the circumstances, the applicant has not established that the
respondent committed a noise nuisance and/or a noise disturbance
and
accordingly, failed to establish that the respondent breached the
order thereby rendering him guilty of contempt.
CONCLUSION
[38]
In the circumstances, I make the following orders:
(i). the application to
rescind the order granted on 4 February under case number 21464/2018
is dismissed with costs; and
(ii). the application to
hold the respondent in contempt under the order granted on 4 February
under case number 21464/2018 is dismissed
with costs.
_____________________
SLINGERS
J
[1]
Paragraph 17 of the respondent's combined affidavit, page 107 of the
record
[2]
Freedom Stationery (Pty) Ltd and Others v Hassam and Others 2019 (4)
SA 459 (SCA)
[3]
Lodhi 2 Properlies Investments CC and Another v Bandex Investments
(Ply) LTD
2007 (6) SA 87
(SCA)
[4]
Freedom Stationery (Pty) Ltd and Others v Hassam and Others 2019 (4)
SA 459 (SCA)
[5]
Paragraph 11 of the combined affidavit, page 105 of the record
[6]
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003
(6) SA (1) SCA
[7]
Nkata v Firstrand Bank Ltd & Others 2014 (2) SA 412 (WCC)
[8]
Paragraph 25 of the combined affidavit, page 110 of the record
[9]
Mathabang Local Municipality v Eskom Holdings Limited and Others;
Shadrack Shivumba Homu Mkhonto and Others v Compensation Solutions
(Pty) Limited [2017] ZACC 35
[10]
Administrator, Cape, And Another v Ntshwaqela And Others
1990 (1) SA
705
(A); Etan Boulevard (Ply) Ltd v Fnyn Investments (Pty) Ltd and
Others 2019 (3) SA 441 (SCA)
[11]
PJ Badenhorst, JM Pienaar & H Mostert Silberg & Schoeman's
The law of property 5 ed (2006) 111
[12]
J Church & J Church 'Nuisance in WA Joubert, JA Faris & LTC
Harms (eds) The law of South Africa vol 19 2ed (2006) para
163