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[2021] ZAWCHC 93
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Van der Merwe and Others v Drenched Boxing (Pty) Ltd and Others (19222/2020) [2021] ZAWCHC 93; [2021] 3 All SA 281 (WCC) (5 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case No:
19222/2020
Before: The Hon. Ms
Acting Justice Mangcu-Lockwood
Date
of hearing: 16 March 2021
Delivered
electronically on: 5 May 2021
In
the matter between
:
GERHARD
JACOBUS VAN DER MERWE N.O.
First
Applicant
TRUDIE
BROEKMANN N.O.
Second
Applicant
MARC
VAN ZYL N.O.
Third
Applicant
GERHARD
JACOBUS VAN DER MERWE
Fourth
Applicant
TRUDIE
BROEKMANN
Fifth
Applicant
TRUDIE
BROEKMANN ATTORNEYS
Sixth
Applicant
and
DRENCHED
BOXING (PTY) LTD
First
Respondent
CRAIG
ANTHONY KINNEAR
Second
Respondent
FORMID
TRIO CC
Third
Respondent
THE
CITY OF CAPE TOWN
Fourth
Respondent
JUDGMENT
MANGCU-LOCKWOOD
AJ
I.
INTRODUCTION
1.
This is the return date of a
rule nisi
which was issued
against the first respondent (“the gym”) and second
respondent, the owner and manager of the gym.
2.
The first three applicants are trustees of a family trust which owns
property
in a multi-storey building situated at [….], Cape
Town. Two of the three trustees are a married couple, Mr Van Der
Merwe
and Ms Broekmann, who live on the property, and Ms Broekmann
also runs a law firm on the same premises. Ms Broekmann is cited in
each of those three capacities - as second, fifth and sixth
applicants, while Mr Van Der Merwe, is cited twice, in his capacity
as a trustee and as an individual person.
3.
The second respondent is the sole director and manager of the gym,
which is situated
approximately one metre from the applicants’
premises, at the [….], Cape Town. The third respondent owns
the property
at which the gym operates. The City of Cape Town (“the
City”) is cited as the fourth respondent, although no relief
sought against it.
II.
THE INTERIM ORDER
4.
On 30 December 2020 the applicants obtained an interim order which
was to operate
as a rule
nisi
, and it interdicted and
restrained the first and second respondents from amplifying any music
and/or undertaking any noise amplification
at the gym, and/or in any
other manner creating and/or causing any noise nuisance at their
premises. The application for interim
relief was heard in the absence
of the respondents and without the benefit of their opposing papers,
although the third and fourth
respondents delivered notices to abide
the decision of the Court.
5.
Subsequent to the granting of the interim order, the applicants
sought to amend
the notice of motion by firstly including the third
respondent as a party against whom the
rule nisi
was to
operate; and secondly by including a prayer that the third respondent
should be ordered to prevent the first and second
respondents from
amplifying any music and undertaking any voice amplification or in
any other manner creating or causing any noise
nuisance at the
premises. Although this amendment was initially opposed by the third
respondent, I was informed from the bar that
the opposition to the
amendment was no longer being pursued, and the amendment was granted.
The first, second and third respondents
have delivered answering
affidavits to oppose the granting of the final order.
6.
It bears mentioning that the applicants have delivered no fewer than
6 affidavits
in this matter, including two ‘replying
affidavits’ delivered a month apart (27 January 2021 and 28
February 2021),
and another styled ‘supplementary replying
affidavit’ (deposed on 23 February 2021). For his part, the
second respondent
delivered two affidavits, both after the interim
order was granted, with one called a supplementary answering
affidavit, apparently
for the purpose of placing an expert report
before the Court. This
modus operandi
continued well into the
stage of delivering submissions. First, the applicants’ counsel
requested an opportunity to file
written submissions in order to
complete his oral replying argument. However, his written submissions
extended beyond the ambit
for which the permission was requested and
granted, thus attracting a request from the respondents to respond,
which was also granted.
Thereafter, the applicants’ counsel
requested an opportunity to make further written submissions in
reply. All the affidavits
and submissions filed by the parties have
been taken into account in this judgment, although it must be stated
that the manner
in which this matter has proceeded has not been
via
the normal rules and leaves much to be desired.
III.
THE FACTS
7.
The gym took occupation of its current premises, which are zoned for
commercial
use, in August 2020. The noise that is the subject of the
applicants’ complaint started on 23 August 2020. The gym runs
scheduled
classes on every day of the week from 6am to 6:45am;
depending on the weekday from 8am to 8:45am, or from 8:30am to
9:15am; from
18:00 to 18h45; and between 8:30am and 9:15am on a
Saturday. During classes the gym plays loud techno/dance music with a
strong
beat, and the instructor’s voice is amplified by a
microphone. It is in dispute whether or not the instructors also
shout
their instructions to the attendees of the classes.
8.
The married applicants’ bedroom window is just over a metre
away from the
window and balcony of the gym. They state that they are
woken up by the noise emanating from the gym on about 6 days a week.
The
office entrance to Ms Broekmann’s attorney’s practice
is adjacent to the building from which the gym operates. Ms Broekmann
states that the noise emanating from the gym classes affects the
running of her practice, as well as her times of study towards
her
Master’s degree.
9.
It is common cause that the properties are situated on the verge of
the City
central business district and just above Buitengracht
Street, which produces substantial traffic noise. During the early
morning
the traffic noise is minimal and the City is very quiet, and,
it is not disputed that that makes the noise produced by the gym
particularly noticeable, although the third respondent attributes
this partially to the national lockdown resulting from the covid-19
pandemic.
10.
At first, Ms Broekmann directed her complaints about the noise to the
second respondent and the
third respondent’s representative,
one David Alexander, but, according to Ms Broekmann this yielded no
results. She thereafter
approached the City, first by lodging
complaints on their online portal, and later by contacting the
officials at the law enforcement
arm. This also yielded no results.
She thereafter approached the Bo-Kaap Civic and Ratepayers’
Association, who contacted
the City officials and the ward
councillor. Only then did the City respond. The result was a meeting
between Ms Broekmann, the
second respondent and a Senior Technician:
Noise Control, a Mr Peter Gossman from the City. According to the
evidence, a written
warning was issued in about October 2020. It is
in dispute whether a verbal warning was also issued.
11.
From the papers it appears that the engagements between the parties
were unfruitful, resulting
in the applicants approaching the Court on
24 December 2020 and obtaining the interim interdict on 30 December
2020. However, it
is also clear from the evidence that before the
launching of the proceedings, the second respondent had engaged the
services of
acoustic engineers to assist in mitigating the noise, and
that the applicants were aware of these efforts. The applicants’
complaint is that they were not advised of the outcome of the
acoustic engineers’ intervention by the stage at which the
interim proceedings were launched.
12.
The report of the acoustic engineers, who practice under the name
Jongens Keet Associates (“Jongens”)
was attached to the
second respondent’s answering affidavit dated 14 January 2021,
and contains two dates, namely 26 November
2020 and a date on which
it was revised, namely 21 December 2020. It states that a visit was
made to the gym on 19 November 2020
in order to investigate
complaints regarding amplified sound generated from the gym; and that
Jongens was requested to determine
whether the sound was compliant
with the Western Cape Noise Control Regulations, 2013 (“the
Noise Control Regulations”).
It is also recorded in the report
that Jongens held a meeting with Ms Broekmann on 19 November 2020,
where the latter relayed her
complaints that the gym noise wakes her
at 6am every morning; was audible within her office and disturbed her
work; and that ‘the
pure tone sound during connection of the
Bluetooth and the sound of amplified speech were considered to be
particularly intrusive’.
The report assessed the results of
some measurements taken, and interpreted them as ‘considered
annoying or otherwise intrusive
to the next door neighbour’.
The report notes that Jongens made recommendations to the second
respondent for certain steps
to be taken in order to mitigate the
levels of noise. It was, however noted in the report that ‘cognisance
needs to be taken
of physical and practical limitations in reducing
the levels of sound between the two spaces separated by a mere few
metres’.
13.
On 2 January 2021, there was more noise emanating from the gym, such
that Ms Broekmann reported
the incident to the police as contempt of
the court order. According to the second respondent, he was in the
Eastern Cape on that
date, having informed the applicants that he
would be returning on 4 January 2021. He was also unaware that a
court order had been
granted on 30 December 2020, or consequently
that it was breached on 2 January 2021, until his return on 4 January
2021. He, however,
admits that the police contacted him.
14.
On 5 January 2021 the second respondent obtained the services of a
company specialising in audio/video
technology called AV Lifeline
(Pty) Ltd (AV Lifeline) in order to implement the recommendations
made by Jongens. Ms Broekmann was
first advised of this in a letter
dated 8 January 2021 from the second respondent’s attorneys. In
support of these averments,
the second respondent has attached to its
papers a letter dated 14 January 2021 from AV Lifeline, which states
that all the guidelines
recommended in the Jongens Report were
implemented.
15.
On 12 January 2021 Ms Broekmann sent an email indicating that there
was noise nuisance in the
form of voice amplification emanating from
the gym, which she could hear on that day. Twenty minutes later, on
the same day the
attorneys of the first respondent contacted her
indicating that AV Lifeline was at the premises of the gym in the
process of ‘setting
the DB level/reading to the legal and
recommended limit’, and were requesting access to her residence
on 14 January 2021
in order to assess the DB levels from there. No
immediate response was forthcoming from Ms Broekmann, but on 13
January 2021 she
responded stating that ‘
the use of
soundproofing implies and that your clients want to use sound
amplification and so breach the court order. Of course
I cannot
condone that…’
After the third time that Ms
Broekmann was requested to grant access to AV Lifeline for the
purpose of assessing the DB levels,
her response, dated 14 January
2021, was as follows:
‘
1.
Foremost, this is a blatant contravention of the court order. As an
officer of the
court I cannot condone it, nor is it seemly for you to
request this.
2.
Two of your clients’ sound consultants have been given access
to our premises
in the past, and Mr Jongens did measurements while he
was in my office.
3.
In any event, the complaint is not that the decibel levels are too
high, but rather
that the noise from the [gym] constitutes a noise
nuisance, so the decibel levels are irrelevant.
4.
Our bedroom window is about 1 metre and 13 cm from your client’s
premises. Whatever
your clients hear from the furthest corner of
their balcony is pretty much identical to what we hear in our
premises - they can
check from there.
5.
I find it tremendously invasive to have your client and his
contractors in my personal
office and my bedroom - the purpose of the
court application was to stop the perpetual harassment via noise
disturbance by your
client. Your refusal to accept my answers and
continued further requests after I have given you a reasonable and
lawful answer,
verges on harassment too.
6.
In any event, the affidavit is due today, so it is too late to
undertake further sound
impact studies – my understanding from
your client was that he had already received Mr Jongen’s
report, which must
be attached to the affidavit….’
16.
On 20 January 2021 Jongens returned to the gym to perform an
inspection, and to assess the sound
mitigation measures implemented
by AV Lifeline, and issued a supplementary report dated 21 January
2021. The supplementary report
sets out the mitigation procedures
implemented as a result of the initial report of 21 December 2020,
and the results of sound
measurements taken on 20 January 2021.
Thereafter, the supplementary report concludes that the noise
mitigation procedures recommended
in the initial report of 21
December 2021 were ‘
well implemented resulting in music and
amplified speech generated within the gymnasium not being audible or
measurable directly
outside of the gymnasium’
.
17.
For their part, the applicants sought advice from Mackenzie Hoy
acoustic engineers whose report
(“the MacHoy report”) is
dated 19 February 2021 and attached to their supplementary replying
affidavit of 23 February
2021. According to the report Mackenzie Hoy
were appointed by the applicants to conduct an acoustic survey to
determine whether
amplified sound generated from the gym is in breach
of the City’s Regulations. The McHoy report has made a number
of observations
regarding the Jongens report, and notes firstly that
Jongens did not measure or record the noise level on their first
visit. As
a result, there is no reference by which to measure the
achievements of the subsequently installed soundproofing. Secondly,
the
McHoy report points out that despite the Jongens report noting
that the sound from the gym is transmitted through the ceiling and
the corrugated iron roof, none of the measures recommended for
soundproofing in the initial report address the ceiling or the roof.
Thirdly, it is pointed out that the Jongens report does not address
the application of the Noise Control Regulations, and instead
assesses the noise based on Table 1 of SANS 10103 which is only
applicable for design purposes, not for noise intrusion. Fourthly,
the McHoy report criticises the method used by Jongens for
determining the effectiveness of the soundproofing installed,
pointing
to a difference between whether one is on the balcony or
inside the gym. The McHoy report also points out that no limiter is
installed
on the mixing desk in the gym studio, and that the sound
levels can be adjusted by the operator. At the same time, the McHoy
report
notes that, according to the second respondent there is a
limiter which is set to level 92 dBA. It is noted in the McHoy report
that there is a separate powered loudspeaker in the training area
towards the back of the gym, but that it was unclear whether
sound
from this loudspeaker is audible at Ms Broekmann’s residence.
It is concluded in the McHoy report that the noise measured
does not
constitute disturbing noise but could constitute noise nuisance in
terms of the Regulations and in terms of the common-law.
It is also
concluded that the noise from the gym is audible in the house of the
complainant, Ms Broekmann. It is also opined that
there is no real
reason for the instructor to use a microphone to amplify speech. The
recommendations made in the McHoy report
are that a limiter should be
installed, which should limit the overall maximum volume to 80dBA;
and that the unused loudspeaker
should be removed from the premises
of the gym; and the amplification of voices by microphone should not
be permitted.
IV.
THE
LAW
18.
The application for the
confirmation of the
rule
nisi
can only be
granted if the applicants establish the requirements for a final
interdict as set out long ago in
Setlogelo
v Setlogelo
[1]
.
The applicants must
establish: (a) a clear right; (b) an injury actually committed or
reasonably apprehended; and (c) the absence
of similar protection by
any other ordinary remedy.
19.
As stated in
National
Director of Public Prosecutions
v Zuma
[2]
,
motion proceedings, unless concerned with interim relief are all
about resolution of legal issues based on common cause facts.
Unless
the circumstances are special, motion proceedings cannot be used to
resolve factual issues because they are not designed
to determine
probabilities.
[3]
Similarly, the question of
onus
does not arise, irrespective of where the legal or evidential onus
lies.
[4]
20.
It is also generally
undesirable to endeavour to decide an application upon affidavit
where the material facts are in dispute
[5]
,
and a final interdict may be granted on application if no
bona
fide
dispute of fact
exists.
[6]
In terms of the
Plascon-Evans
[7]
rule where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred
in
the applicant’s affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter,
justify
such order.
[8]
It may be different if the respondent’s version consists of
bald or uncreditworthy denials, raises fictitious disputes of
fact,
is palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers.
[9]
The Court has to accept those facts averred by applicant that were
not disputed by respondents, and respondents’ version
insofar
as it was plausible, tenable and credible.
[10]
21.
On the other hand, it is
equally undesirable for a court to take all disputes of fact at their
face value. If this were done a respondent
might be able to raise
fictitious issues of fact and thus delay the hearing of the matter to
the prejudice of the applicant.
[11]
In every case the court should examine the alleged disputes of fact
and determine whether in truth there is a real issue of fact
that
cannot be satisfactorily resolved without the aid of oral
evidence.
[12]
22.
Whether a factual dispute
exists is not a discretionary decision; it is a question of fact and
a jurisdictional prerequisite for
the exercise of the discretion
given by the rule.
[13]
It is not a question of any difference of character between the
various kinds of claims being enforced, but a question of the proper
method of determining in each case the facts upon which any claim
depends.
V.
THE
APPLICANTS’ CLEAR RIGHT
23.
The applicants rely on the common law on neighbours’ nuisance,
and in the alternative, the
Noise Control Regulations.
24.
In common law,
everyone
is in general permitted to use their property for any purpose they
choose, provided that the use of the property should
not intrude
unreasonably on the use and enjoyment by the neighbours of their
properties.
In terms of the Noise Control Regulations
“noise nuisance” means any sound which impairs or may
impair the convenience
or peace of a reasonable person.
25.
What was stated in
Laskey v Showzone
is apposite to this case:
‘…
What
constitutes reasonable usage in any given case is dependent on
various factors, including the general character of the area
in
question – persons living and working in an urban area would,
for example, reasonably be expected, in general, to be more
forbearing about a higher level of noise intrusion into their lives
than neighbours living in a rural housing estate. Social utility
is
another factor that might affect what owners and occupiers of
property might reasonably be expected to put up with from their
neighbour: Aircraft and railway trains are an unavoidable incidence
of modern life and it is necessary for their functioning that
airports and shunting yards should be able to operate. The operation
of these facilities will often generate higher levels of noise
than
persons in residential areas might in other circumstances be
reasonably expected to endure, but because of their social utility
persons living near an airport or a railway yard will be required to
put up with the associated noise levels, as uncomfortable
as that
might be, provided only that the airport or railway yard is not
itself operated unreasonably, in a nuisancesome manner.
Reasonableness
in this context is a variable criterion dependent on the
circumstances. The test for determining whether or not a
particular
usage or conduct is actionably nuisancesome has been aptly expressed
by Prof. J.R.L. Milton as follows: ‘
The
determination of when an interference so exceeds the limits of
expected toleration is achieved by invoking the test of what,
in the
given circumstances, is reasonable. The criterion used is not that of
the reasonable man, but rather involves an objective
evaluation of
the circumstances and milieu in which the alleged nuisance has
occurred. The purpose of such evaluation is to decide
whether it is
fair or appropriate to require the complainant to tolerate the
interference with the comfort of his existence or
whether the
perpetrator ought to be compelled to terminate the activities giving
rise to the harm.
’
5
Lord
Wright’s description of the test in
Sedleigh-Denfield
v O'Callaghan
[1940]
UKHL 2
;
[1940]
AC 880
6
,
at 903 was crisper, but to the same effect: ‘
A
balance has to be maintained between the right of the occupier to do
what he likes with his own, and the right of his neighbour
not to be
interfered with. It is impossible to give any precise or universal
formula, but it may broadly be said that a useful
test is perhaps
what is reasonable according to the ordinary usages of mankind living
in society, or more correctly, in a particular
society.
’
A
person setting up home in the inner city cannot expect the
tranquillity of life in the leafy suburbs, but in the context of the
realities of an urban environment including the phenomenon of a
concentration of places of night time entertainment that is part
and
parcel of the 24 hour living city concept, such a person is still
entitled to expect that his or her neighbour, whatever its
character,
will use its property in such a manner so as not to unreasonably
intrude on the ordinary amenities of the inner city
resident.’
26.
The question is therefore
whether the gym is being operated in a way which results in an
unreasonable interference with the right
of the applicants to use
their premises. There is no dispute between the parties that the
applicants have a right to enjoy the
use of their property without
being subjected to noise nuisance, but that this must be balanced
against the first and second respondents’
right to conduct
their business activities.
[14]
27.
What is clear from
Laskey v Showzone
is that the applicants’
right to use and enjoy their property must be viewed in the context
of reasonable usage of a property
that is located in the City. As I
have stated, the parties agree that the properties concerned in these
proceedings are abutted
by substantial traffic noise, although not
necessarily in the early mornings. In that context, the applicants
cannot expect the
quiet serenity of the suburbs while living in the
inner-city, which comprises a mix of commercial and residential
properties, and
particularly having purchased a property that is
immediately adjacent to a commercially-zoned property.
28.
The applicants’ right must also be balanced against the
respondents’ right to conduct
their business. In this regard,
the applicants have sought to raise doubt about the legality of the
running of the gym. This is
done through the affidavit of the first
applicant which was delivered together with the applicants’
sixth affidavit. The
first applicant states that he is a qualified
senior architectural technician, and he ‘strongly suspects’
that the
third respondent has breached section 4(1) of the National
Building Regulations and Building Standards Act 1977 by failing to
submit
building plans and obtaining the City’s approval before
effecting alterations on its property. This allegation, which is
raised at the last minute of the proceedings, amounts to a strong
suspicion, and cannot sustain a clear right. Nothing else needs
to be
said about it.
29.
The applicants argue that it is not necessary for the first and
second respondents to use amplified
sound in the gym, and that the
latter have not made out any case this regard. In my view, whether or
not the applicants may obtain
a final interdict against the
amplification of voice and sound at the gym is a question that
relates to whether the amplification
is such that it causes a
nuisance. The applicants do not have a general or absolute right to
prevent the respondents from amplifying
sound or voices. It must be
established that the amplification sought to be prevented constitutes
a nuisance. This issue brings
into focus the expert reports, and are
discussed further under the heading discussing the requirement of an
injury.
30.
The other aspect that is relevant to the determination of the
applicants’ clear right is
the relief sought against the third
respondent. As I have already mentioned, the amended notice of motion
seeks an order that the
third respondent be ordered to prevent the
any noise nuisance at their premises. The question arising is whether
the claim brought
against the third respondent is valid in law. The
third respondent argues that the relief sought is legally incompetent
in that
a landlord cannot be ordered to force a tenant to comply with
the law; nor can a landlord be ordered to evict a tenant or be held
in contempt for a tenant’s playing loud music. The applicants
and the third respondent have exchanged numerous written submissions
on this aspect. In view of the approach I have taken in this
judgment, which becomes apparent in the next section, I do not
consider
it necessary to decide this point.
VI.
INJURY
ACTUALLY COMMITTED OR REASONABLY APPREHENDED
31.
A court will not grant an
interdict restraining an act that has already been committed –
the injury must be a continuing one.
[15]
When the wrongful act giving rise to the injury has already occurred
it must either be of a continuing nature or there must be
in
reasonable apprehension that it will be repeated.
[16]
The test for apprehension of an injury is an objective one. The
applicant must show objectively that his or her apprehensions are
well-grounded. Mere assertions of his or her fears are insufficient.
32.
The applicants state that
an injury in the form of recurring noise nuisance was committed
against them, even after the granting
of the interim interdict. All
the applicants’ subsequent affidavits refer to further breaches
of the interim court order
on 2, 12, 14, 25, 26, 28 January 2021 and
22 February 2021. Regarding the events of 2 January 2021, I have
already referred to
the second respondent’s version that he was
away in the Eastern Cape, and was unaware that the interim court
order had been
granted. He, however, does not dispute that there was
noise emanating from the gym, although it is stated in a letter dated
8 January
2021 that the gym had not made use of voice or sound
amplification since 24 December 2020, the date on which the interim
proceedings
were instituted. What is clear from the evidence however,
is that the recommendations of Jongens had not been implemented as at
that date. Those recommendations were actioned with effect from 5
January 2021 when the services of AV Lifeline were obtained,
and
thereafter on 12 and 14 January 2021, when AV Lifeline attended at
the premises of the gym to implement the recommendations
and sought
access to the applicants’ property in order to assess the
effectiveness of the measures implemented. Ms Broekmann
refused to
grant that access. The complaints regarding 14 January 2021 involve
allegations that the second respondent loudly welcomed
members of his
gym in the street, and deliberately activated his car alarm on
approximately eight occasions, both of which are
denied by the second
respondent. In my view, these latest complaints indicate that
what the applicants expect is the tranquillity
of life in the
suburbs, which is an unreasonable expectation. The applicants are not
entitled to interdictory relief if their sensibility
to the noise is
a manifestation of a too refined or sensitive disposition or an
unreasonably low tolerance level.
[17]
Similarly, the alleged incident of 28 January 2021 which involved a
sparring session on the balcony of the gym was of a different
nature
to the noise and sound complaints that precipitated these
proceedings, and had not occurred before that day, according to
the
applicants. Accordingly, there is no basis on which to conclude that
there is a reasonable apprehension of its recurrence.
This complaint
is, in any event, raised in the last replying affidavit of the
applicants, dated 22 February 2021, and the respondents
did not have
an opportunity to respond to it. The allegations regarding 25, 26
January and 22 February 2021 are similar in nature
to the complaints
that resulted in the launching of this application, and are included
in the discussion below. For now, it is
relevant to mention that the
first applicant also states as follows in his affidavit of 22
February 2021: ‘
[T]he
peacefulness of our home and my office since the [interim] court
order, save for the instances of breach of a court order
set out in
my affidavits, have made such a wonderful change in our lives’
[18]
.
33.
Relying on the measures they have taken upon the advice of the
acoustic engineers, the first and
second respondents argue that there
is no longer unlawful, loud, noisy interference with the applicants’
rights to live and
work in relative peace and calm. The second
respondent has set out the measures he has taken in this regard, and
states that he
has spent over R50,000 in sound proofing and sound
engineering reports. He also states that he has been in extensive
discussions
with Mr Gossman from the City regarding the
recommendations made in the Jongens report.
34.
The applicants dispute the respondents’ claims that there is no
longer noise nuisance, on
several bases. They dispute that the
Jongens’ recommendations have been fully implemented, or were
effective. They dispute
that the limiter fitted in by the second
respondent in order to limit the sound output to a certain maximum
level, is effective.
They contend that the volume is set to exceed
the legal limit. Further, according to the applicants, only two out
of three problematic
sound transmission paths have been addressed by
the second respondent. The largest of the three areas, which is also
the most expensive
to soundproof, namely the corrugated iron roof,
has not been addressed. According to the applicants, this means that
the second
respondent has not fully implemented the recommendations
of the Jongens report. There is also a fair amount of speculation in
the
supplementary replying affidavit that the second respondent may
have tampered with the limiter, and that the applicants suspect
that
only two speakers’ output was limited instead of three.
35.
It is clear that there are disputes of fact between the parties. The
conclusions reached in the
supplementary report of Jongens dated 21
January 2021, and those reached in the MacHoy report differ
diametrically. According to
Jongens, the cause for complaint has been
mitigated, and according to the McHoy, it has not.
36.
The disputes of fact, which were extant at the date of the hearing of
the matter before me, are
also indicated in the affidavit of the
first applicant, which as I have already indicated was delivered at a
very late stage of
the proceedings, and states as follows: ‘
When
Miss Viljoen [of McHoy] asked the second respondent whether the voice
amplification was at the maximum volume, he admitted
that it was not.
She asked him to increase the volume, but he declined to do so,
saying that they never play the volume that loudly
during the
classes. I dispute that. He was being manipulative….From our
experience, as well as our sound recordings made
on my wife’s
cellphone, many of which have been submitted to this honourable
court, it is clear that the verbal commands
over the microphone are
the loudest noise. The voice amplification is amplified above the
volume of the music… consequently
the key aspect of the noise
nuisance could not be measured by our experts as the second
respondent refused to give a true reflection
of the voice
amplification despite a specific request from our expert. He
manipulated this process in a dishonest and deliberate
manner
.’
This is an example of a factual dispute that the Court is not in a
position to resolve or decide in the applicants’
favour as the
papers stand.
37.
It was revealed in Court that two weeks before the hearing of this
matter, the first and second
respondents made a proposal that the
matter should be resolved by way of the reports of the respective
experts being referred to
the official of the City of Cape Town who
is charged, in terms of the Noise Control Regulations, with assessing
and investigating
noise complaints, for the purpose of testing and
assessing the sound mitigation measures put in place at the gym. It
was furthermore
proposed that the parties should abide the reporting
and comply with any recommendations of such designated officer in
regard to
sound mitigation measures. The applicants rejected this
proposal. Subsequently, the first and second respondents made an
alternative
proposal, that the respective experts should meet and
prepare a joint minute, commenting on the implementation of the sound
mitigation
measures, and jointly recommending further steps to be
taken, if any. This too was rejected by the applicants.
38.
Given that there are clear disputes of fact between the parties, I
consider that the Court would
have been assisted, by either proposal,
and particularly the second proposal from the respondents in
adjudicating the nuisance
dispute between the parties. In response to
my query regarding this issue, the applicants’ counsel argued
that the issue
about which the experts disagree is merely a dispute
of opinion between experts and not a dispute of fact. I find this
argument
extraordinary. The question of whether there is noise that
constitutes nuisance is the very issue that this Court is called upon
to determine, and that is the very issue on which the parties and
their experts disagree.
39.
The Court can further not ignore the fact that the respondents
obtained the services of an acoustic
engineer in response to the
applicants’ complaint even before the interim proceedings were
launched. According to the second
respondent Jongen’s first
visit was on 19 November 2020, and the first report was issued on 21
December 2020. The fact that
the report was not issued to the
applicants when it was issued may be an issue to consider when
considering costs in the matter.
However, the fact is that the
respondents did react to the applicants’ complaints by
obtaining the first report, implementing
its recommendations through
AV Lifeline, and obtaining further advice from Jongens. Furthermore,
it appears to be common cause
that noise mitigation measures where
indeed implemented. It is the extent to which they were effective
that is in dispute. The
supplementary report from Jongens says they
were effective, and the later report from McHoy says they were not.
The result
is that there is a material dispute of fact in regard to
the efficacy of the noise mitigation measures undertaken by the
second
respondent, and in regard to whether or not in the applicants
continue to suffer unreasonable noise levels. In my view, this is
an
issue that goes to the heart of whether the applicants continue to
suffer injury, and indeed, whether or not they are entitled
to the
final relief they seek.
40.
The applicants’ counsel argued that, despite the disputes of
fact the applicants are entitled
to the final relief they seek
because they had made out a case at the interim stage of the
proceedings. I do not agree. The Court
must be satisfied, at the
stage of granting the final order that a case has been made out for
it. It is not sufficient to allege
that the case was made out of the
interim stage of the proceedings. Otherwise, that would render the
final proceedings an academic
exercise. A Court is entitled to
interrogate the current circumstances before confirming an order. A
confirmation of a rule
nisi
is not granted merely by the
asking therefor. As the case law referred to earlier indicates, a
court will not grant an interdict
restraining an act that has already
been committed.
41.
I am therefore not satisfied that the applicants have established the
element of an injury.
42.
Further, the question of whether there has been contempt of the
interim court order is related
to whether there is ongoing or
apprehended injury. For the reasons discussed in this section, I am
of the view that the applicants
have failed to make out a case for
contempt of the court order.
VII.
ALTERNATIVE REMEDY
43.
The requirement for a final interdict is that no other adequate
remedy must be present. To qualify
as an alternative remedy, a remedy
must be adequate in the circumstances, be ordinary and reasonable
being a legal remedy giving
similar protection
44.
The respondents have argued that the applicants have an alternative
remedy, namely engaging with
the second respondent to test the
soundproofing. There is no merit to this complaint as the papers are
replete with correspondence
between Ms Broekmann and the second
respondent – albeit fraught with contention.
45.
The first and second respondents also complain that the applicants
failed to approach the South
African Police Service (SAPS) and lay a
criminal complaint in terms of the Noise Control Regulations. It is
admitted, however,
that the applicants did approach the SAPS and
reported an alleged contempt of court order in about January 2021. In
my view, this
is not an alternative remedy in any event. T
he
existence of another remedy will only preclude the grant of an
interdict where the proposed alternative will afford the injured
party a remedy that gives it similar protection to an interdict
against the injury that is occurring or is apprehended.
46.
Next, it is argued by the first and second respondents that the
applicants have failed to comply
with the mechanisms contained in the
Noise Control Regulations for dealing with complaints,
investigations, assessments and mitigation
compliance procedures. The
Regulations also provide for criminal sanctions in the case of
contravention. The procedure for control
of noise in terms of the
Noise Control Regulations 10(3) and (4) when there is an allegation
of noise nuisance involves a member
of the public placing a complaint
in the form of an affidavit before the City; obligatory investigation
by the City; and if City
is of the opinion that there is or may be a
noise nuisance, the issue of instructions for the noise nuisance to
cease or be mitigated
within a specified period of time. There is no
evidence submitted by the applicants to show that they have complied
with these
requirements. Instead, applicants point to their
engagements with the City, which are set out earlier in this judgment
which have
yielded little to no fruit. In this regard, I note that,
according to the common cause facts, Mr Gossman from the City was
involved
at some stage and issued a written warning to the second
respondent. However, the applicants have not provided sufficient
evidence
in this regard; and pertinently, there is no evidence that
an affidavit was provided to the City in terms of Regulation 10(3) in
order to trigger the formal investigatory processes and the issue of
a formal written instruction for the attention of the respondents
envisaged in Regulation 10(4). In fact, because of the paucity of
evidence in this regard, the third respondent has brought an
application for various passages contained in the applicants’
founding affidavit relating to Mr Gossman’s involvement
to be
struck out on the basis that they constitute hearsay evidence.
Indeed, apart from the agreed facts between the applicants
and the
second respondent that I have already mentioned, the applicants have
failed to substantiate averments relating to Mr Gossman’s
involvement by delivering a confirmatory affidavit or by explaining
why one could not be provided. This, despite the numerous affidavits
placed before this Court by the applicants. In light of the
fact that the outcome of the process envisaged by the Noise Control
Regulations is a cessation of the noise nuisance or its mitigation, I
consider the process to be an adequate alternative remedy,
not only
for the City, but primarily for the applicants. The applicants’
refusal to agree to the respondents’ proposal
to submit to the
processes set out in terms of the Noise Regulations must also be seen
in that light.
47.
In light of all the above considerations, the applicants have failed
to establish all the requirements
for a final interdict.
VIII.
THE
STRIKING OUT APPLICATION
48.
As I have already mentioned, the third respondent seeks to strike out
various statements, including
those relating to Mr Gossman. I have
also already mentioned that it is common cause between the applicants
and the second respondent
that there were many interactions with Mr
Gossman, but that it is denied that a verbal warning was issued by
him. Apart from this
evidence, the remainder of the allegations
relating to Mr Gossman remain unsubstantiated, and accordingly, the
objections relating
to averments made regarding his involvement fall
to be struck out. So too, the remainder of the allegations which the
third respondent
seeks to have struck out.
IX.
COSTS
49.
The applicants complain that the second respondent failed to apprise
them of the outcome of the
first visit by Jongens, in other words,
the first report dated 26 November 2020 and 21 December 2020. I agree
with the applicants
that, had the second respondent done so, that
might well have averted if not delayed the institution of the interim
proceedings.
In this regard, I take into account the fact that the
second respondent was requested by Ms Broekmann to advise of the
outcome
of Jongens’ intervention, but failed to do so. I
therefore consider it appropriate in this regard that the first and
second
respondents should bear the applicants’ costs in respect
of the interim proceedings. No interim relief was sought against
the
third respondents at that stage, so no costs order is made against
them in this regard.
50.
As for the rest, I have found that the applicants have failed to
establish the requirements for
a final interdict, and there is
accordingly no reason why the costs should not follow the result. I
particularly find it appropriate
that the applicants should bear the
remaining costs of the proceedings in light of applicants’
unreasonable conduct. First,
in Ms Broekmann refusing to grant access
to her premises so that the noise mitigation measures could be
assessed. Then, in refusing
to have the disputes of fact be resolved
in a sensible manner. This, after the applicants produced an expert
report at a very late
stage of the proceedings, in their affidavit of
23 February 2021. In those circumstances, I do not find it
unreasonable that, on
1 March 2021 the respondents proposed that the
matter be dealt with in the manner that they proposed. Even if the
proposal was
made a mere two weeks before the hearing of the matter,
the approach proposed would have been particularly useful in
resolving
the disputes of fact referred to earlier. By that point,
the disputes of fact were clear on the papers, and I consider the
applicants’
rejection thereof to be unreasonable.
X.
ORDER
51.
In the result, the following order is made:
a. The
application is dismissed, and the rule
nisi
is discharged.
b. The
application for striking out is granted, save for the applicants’
allegation, in paragraph 7.2 of
the founding affidavit, that Mr Peter
Gossman met with the fifth applicant and the second respondent and
issued a written warning.
c.
Applicants shall pay the first, second and third respondents’
costs, save for the costs of the
interim proceedings, which the first
and second respondents shall pay.
MANGCU-LOCKWOOD
AJ
Appearances:
·
For applicants:
Adv
Theo Nel (instructed by Trudie Broekmann)
·
For first and second respondents:
Adv
Craig Webster SC (Instructed by Ulrich Rox & Associates)
·
For third respondent:
Adv
Zach Joubert (Instructed by Walkers Inc.)
[1]
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[2]
National
Director of Public Prosecutors v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) paras [26] – [27].
[3]
NDPP
v Zuma
para
[26]
.
[4]
NDPP
v Zuma
para
[27].
[5]
Harmse
Civil
Procedure in the Supreme Court
,
B6.45
[6]
Plascon-Evans
supra.
[7]
Plascon-Evans Paints
(TVL) Ltd v Van Riebeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[8]
Harmse
Civil Procedure
in the Supreme Court
,B6.45.
[9]
Media 24 Books (Pty)
Ltd v Oxford University Press Southern Africa (Pty) Ltd
2017 (2) SA 1
(SCA);
National
Director of Public Prosecutions v Zuma
[2009] 2 All SA 243; 2009 (2) SA 279 (SCA).
[10]
Airports Company South
Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books
[2016] 4 All SA 665 (SCA).
[11]
Petersen v Cuthbert &
Co Ltd
1945 AD 420
428. A hollow denial or a detailed but fanciful and untenable
version does not create a dispute of fact:
Truth
Verification Testing Centre CC v PSE Truth Detection Centre CC
1998 (2) SA 689
(W) 698;
Rosen
v Ekon
[2000] 3 All
SA 23
(W) 39;
Ripoll-Dausa
v Middleton NO
[2005]
2 All SA 83 (C), 2005 (3) SA 141 (C).
[12]
President of the
Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) pars 234-239. It has variously been called a
“genuine” or “bona fide” dispute.
[13]
Plascon-Evans
supra 634-5;
Room Hire
Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155 (T) 1162.
[14]
Laskey
and Another v Showzone CC and Others
2007 (2) SA 48
(C). See also
De
Charmoy v Day Star Hatchery (Pty) Ltd
1967
(4) SA 188
(D);
LAWSA
Vol 19 (2nd Ed) paras 173-185.
[15]
See
Erasmus D6-14, and the authorities referred to therein.
[16]
Herbstein
& Van Winsen
The
Civil Practice of the High Courts of South Africa
[17]
See
Laskey
v Showzone
para [32].
[18]
At p
336, para 13.