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[2011] ZAGPPHC 86
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University of Pretoria v Partnership, Firm or Association known as Springbok Bar (75442/2009) [2011] ZAGPPHC 86 (16 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NO: 75442/2009
DATE:16/02/2011
In
the matter between:
THE
UNIVERSITY OF
PRETORIA
...............................................................................
Applicant
and
THE
PARTNERSHIP, FIRM OR ASSOCIATION
KNOWN
AS SPRINGBOK
BAR
.........................................................................
1st Respondent
TRUTER,
RIAAN
.................................................................................................
2nd Respondent
NIRAFS
INVESTMENT
CC
................................................................................
3rd Respondent
CORAM:
EBERSOHN AJ
DATE
HEARD: 15TH SEPTEMBER 2010
DATE
JUDGMENT HANDED DOWN: 16
th
FEBRUARY 2011
JUDGMENT
EBERSOHN
AJ.
[1]
The applicant is the University of Pretoria ("the University")
which has two hostels for students, namely "Asterhof'
and
"Vergeet-My-Nie" in Hatfield, Pretoria.
[2]
The first respondent is "Springbok Bar" which belongs to a
closed corporation by the name of Trade Now 193 CC ("Springbok
Bar"). It appeared from the papers that Springbok Bar is a
business where food, beverages and intoxicating liquor is sold
to its
customers. Springbok Bar is in an area close to the campus of the
University and is frequented by mainly younger people
including
students of the University.
[3]
The second respondent was joined in his capacity as "currently
also a proprietor or person involved in the business of
the first
respondent".
[4]
The third respondent is the owner of the property on which Springbok
Bar conducts its business it being erf 651, Hatfield, Pretoria
("the
property").
[5]
The University applied for an order against the respondents
interdicting and restraining them, firstly, from engaging in any
activity in contravention of the Pretoria Town Planning Scheme and in
particular from conducting any form of business falling outside
the
Land Use Rights afforded in terms of the Pretoria Town Planning
Scheme in respect of the property referred to in paragraph
[4] of
this judgment, and secondly, from playing loud music on the property
and causing loud noise emanating from the property
thereby creating
an actionable nuisance (see: East London Western Districts Farmers'
Association v Minister of Education &
Development Aid
[1988] ZASCA 172
;
[1989] 2
All SA 163
(A),
1989 (2) SA 63
(A); Allaclas Investments (Pty) Ltd. v
Milnerton Golf Club
[2008] 2 All SA 163
(A),
2008 (3) SA 134
(SCA);
Nelson Mandela Metropolitan Municipality & Others v Greyvenouw CC
& Others
2004 (2) SA 81
(SE)), and inconveniencing the staff and
students residing in the said two hostels in the sense that they
could not study, sleep
and rest whilst the noise was being made on
the premises of Springbok Bar, and ordering the respondents to take
whatever steps
may be necessary to curtail and limit loud noise, and
thus the actionable nuisance, emanating from the said property.
[6]
The application was opposed by only the first and second respondents.
[7]
In paragraph 6 of the answering affidavit the two respondents gave
notice that they would apply for condonation of the late
filing of
the answering affidavit which should have been filed already by the
4th February 2010 but which was in fact only filed
on the 7th
September 2010, i.e. about 8 months late, and this matter being heard
on the 15th September 2010, clearly embarrassed
the applicant and
left the applicant with very limited time in which to respond and
file a replying affidavit.
[8]
The two respondents advanced as an excuse for the late filing of the
answering affidavit the reasons set out as follows in paragraph
6 of
the answering affidavit:
a)
that in 2008 they caused a report to be obtained from a firm
regarding the acoustics of the premises of Springbok Bar;
b)
when they went to consult with their attorneys, after having been
served with the application papers, the report was not at hand
and
the deponent to the answering affidavit, one Judy Truter, had
forgotten from whom the report was obtained;
c)
they searched for the report and eventually found it and the
answering affidavit could only then be completed.
[9]
The court has considerable difficulty with the excuses advanced:
a)
why they did not just trace the acoustics firm through the payment
they made to it is not explained;
b)
no explanation was given as to why the two respondents simply did not
call for a fresh report from an expert in acoustics;
c)
the problem experienced by the two respondents was apparently not
conveyed by the attorneys of the two respondents to the applicant's
attorneys asking for an extension of time in which to file the
answering affidavit; and
d)
why a dated report had to be looked for and why a fresh report,
wherein the acoustics expert could have dealt with the allegations
of
the applicant in the founding papers, was not obtained, was also not
addressed.
[10]
The court also has problems with regard to unsatisfactory aspects
regarding the acoustics report which was attached as annexure
"F"
to the answering affidavit:
a)
the two respondents heavily relied on the report but it was
nonsensical as the report was dated already the 1st December 2008
i.e. long before the application was served;
b)
the original founding affidavit wherein the incorrect third
respondent was joined was only deposed to by Badenhorst on the 8th
December 2009, consequently the court finds proof, in the respondents
obtaining an acoustics report, of the applicant's allegation
that
before that date its representatives communicated their objection to
and their concern regarding the excessive noise emanating
from the
premises of Springbok Bar and that the respondents considered
rectifying the problems causing them, therefore, to obtain
the
acoustics report;
c)
the alleged noise measurements referred to in the acoustics report
were done "during nighttime" and the exact time
was for
some reason or another not stated.
[11]
The first and second respondents raised four points in limine.
[12]
The first and second points in limine were basically to the same
effect namely that they denied that the deponent to the applicant's
founding affidavit, one Werner Badenhorst, was duly authorised to
depose to the founding affidavit. The applicant, however, attached
an
affidavit by the Registrar of the University, one Grove, wherein he
verified that he was duly authorised to bring and defend
legal
actions on behalf of the University and that he specifically
authorised Badenhorst, who was conversant with the facts, to
depose
to the founding affidavit. Badenhorst was clearly only the deponent
to the founding affidavit but the application itself
was launched by
Grove on behalf of the University in terms of the powers granted him
by the University. The grounds advanced by
the two respondents were
merely formalistic and without substance and the first and second
points in limine cannot succeed.
[13]
The third point in limine was to the effect that the first respondent
was cited incorrectly. With all the evidence before the
court it is
quite clear who Springbok Bar was namely Trade Now 193 CC. Why this
nonsensical point was taken in the first instance
is not clear and it
cannot succeed.
[14]
The fourth point in limine was that there was a dispute of fact and
that the applicant should have foreseen it and not have
proceeded by
way of application but should have proceeded by way of action. It is
trite that, in motion proceedings and where there
arises a dispute of
fact, that the applicant can only succeed if such of the allegations
made by it, which were admitted by a respondent,
together with the
respondent's allegations, entitles such an applicant to an order.
(Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984(3) SA
620 (AD)). In the present instance and applying the abovementioned
principle, and as is set out in this judgment
the applicant succeeded
on a balance of probabilities and the fourth point in limine must
also fail.
[15]
The respondents also tried to make out a case of misjoinder with
regard to the second respondent. The second respondent, was,
however,
placed on the scene at Springbok Bar and as the manager of it by
deponents to affidavits filed on behalf of the applicant
and the
sheriff even served the papers on him at Springbok Bar. There is no
merit in this contention of the second respondent.
[16]
As the merits of the matter must also be considered when a court
decides on the issue of condonation the court will proceed
to deal
with and consider the merits.
[17]
Springbok Bar is on the corner of Hilda and Prospect Streets,
Hatfield, Pretoria and the University's hostel "Asterhof
is
directly opposite the road some 100 metres away as the crow flies.
The main building of the hostel is occupied by about 150
female
students, all registered with the University, and the deponent
Badenhorst and his family live in quarters on the ground
floor of the
building. All the bedrooms face towards the north with the Springbok
Bar right across the street. Towards a westerly
direction from
Asterhofs main building is another hostel situated in a building, two
storeys high, known as "Vergeet-My-Nie",
which is part of
Asterhof and houses a further 150 registered female students.
Badenhorst is also head of Vergeet-My-Nie. Badenhorst's
duties are to
enforce at the residences the applicable rules and regulations of the
applicant, to attend to complaints of the students
and protect their
interests and to generally control and manage Asterhof in such a way
so as to ensure a safe environment for the
students and to create an
atmosphere which is conducive to study.
[18]
Springbok Bar conducts its business in a single storey building and
the applicant described Springbok Bar as a place of amusement
of
about 160 square metres under roof and which sold food and alcoholic
liquor to members of the public, predominantly young persons.
Outside
Springbok Bar's building there is a terrace or wooden deck of about
80 square metres in size where there are about 8 fourseater
tables
and 12 sixseater tables. This area is not covered by a roof. Inside
the building itself there are further tables and chairs
where
customers can sit down and enjoy food and drinks. There is also a
so-called bar area where customers can order and enjoy
drinks.
[19]
According to the founding affidavit and supporting affidavits
Springbok Bar opens relative late in the morning and then remains
open quite often until the early hours of the next morning. Music is
loudly played through amplifiers and loudspeakers and during
some
evenings of the week live bands would loudly play music through
amplifiers and loudspeakers. In this regard the court need
only
further refer, by way of illustration, to one complaint from a
student Caroline Brockwell-Watson addressed to Badenhorst which
letter appeared on page 74 of the record. It reads as follows:
"Dear
Asterhof Parents,
I
find it exceptionally difficult to live in our Main Building. The
Bunker has no concern for our academic needs, I find it not
only
impossible to study but also to sleep. The volume is turned up to
such an excessive level even though there are only five
customers in
the restaurant/pub. Live music is also a regular occurrence. Even on
Sunday nights the music is played very loud until
very late. I was
exceptionally stressed during exam period in June when the levels of
noise and disturbance did not cease. I feel
that The Bunker is
prohibiting all those who live in our Main Building from reaching
their full academic potential. For this reason
I kindly request that
I may be awarded the opportunity to move into Vergeet-My-Nie, where
the noise levels are not as excessive.
Please give this matter your
urgent attention."
[20]
The Bunker was the name of the previous similar business in the
premises which Springbok Bar now occupies and conducts. Though
the
owners and name of the business changed, the type of business and the
problems associated with it and the loud noise emanating
therefrom,
apparently did not. The gist of the complaint against Springbok Bar
as it appears in the supplementary affidavits to
the founding
affidavit and deposed to by the female students, is that the loudness
of the noise, consisting of music and shouts
and cheering of human
beings, accompanied by a thumping beat of the drums and orchestra,
keeps them awake until early the next
morning when activities at
Springbok Bar would cease resulting in them
a)
not being able to properly sleep and rest;
b)
not being able to study properly;
c)
being tired and sleepy in class at the University the next morning;
and
d)
becoming stressed.
[21]
A firm by the name of CLS Consulting Services (Pty) Ltd. instructed
thereto by the University, addressed amongst various other
letters, a
letter dated the 27th February 2008 to the owner of Springbok Bar
wherein the sordid history of excessive noise, the
loud shouting of
patrons etc. during the tenancy of the previous firm, The Bunker, was
detailed and the new owners were requested
to co-operate and limit
the noise emanating from the premises. In the letter it was confirmed
that the matter was discussed between
representatives of the
University and the owner of Springbok Bar and the tetter's
representative promised Springbok Bar's co-operation.
This promise
was clearly not kept. On the 17th July 2008 Mr. Arthur Gray addressed
a complaint to the applicant regarding excessive
noise emanating from
the premises of Springbok Bar on various evenings complaining that
the students could not sleep and were tired
in class the next day and
wherein he demanded that action be taken by the University against
Springbok Bar.
[22]
The papers also show that numerous other approaches regarding the
excessive noise emanating from Springbok Bar were made on
behalf of
the University to the first and second respondents, without success.
It appeared that the respondents did not care about
the noise
emanating from Springbok Bar and were apparently only interested in
the profits being made.
[23]
In paragraphs 90-97 the deponent to the founding affidavit dealt with
the statutory framework of the city of Pretoria. Pretoria
is
regulated by what is known as the Tshwane Town Planning Scheme and it
divided the town of Pretoria into different areas and
zones and it
afforded different land right uses to different areas.
(24)
This matter was heard together with matter 75127/09 being a matter
that was brought by the same University against another
business
known as Aandklas which does business in the same vicinity and
regarding whom the University also alleged that excessive
noise
emanated from the premises of Aandklas and that Aandklas was also
operated illegally as a place of amusement. The same counsel
appeared
for the University in the two matters and the same counsel appeared
for the first and second respondents in the two matters.
The
statutory aspects regarding the two businesses, being almost next to
each other, was not in dispute and accordingly it was
not necessary
for the counsel of the University to hand up the whole Town Planning
Scheme and everything that goes with it, as
the court was advised it
would do in paragraph 97.2 of the founding affidavit in matter
75442/09. The contents of the Town Planning
Scheme and everything
else that goes with it, was thus common cause between the parties.
[25]
The zoning of erf 651 in the Town Planning Scheme is that of
"SPECIAL" and the following conditions apply:
"The
erven shall be consolidated and shall be used only for the purposes
of places of refreshment, business buildings, dwelling
units and
certain restricted industries, which are normally associated with a
shopping centre and which create no danger or nuisance
of noise,
dust, smoke, fumes or smell, such as a bakery, subject to the
following conditions...."
[26]
The definition of a "place of refreshment" in the Town
Planning Scheme is as follows:
"PLACE
OF REFRESHMENT
Means
land and buildings or a part of a building used for the preparation,
sale and consumption of refreshment on the property such
as a
restaurant, cafe, coffee shop, tea room, tea garden, sports bar, pub,
bar, and may include take-aways and a maximum of two
table games, two
dartboards, two electronic games, television screens and soft
background music for the customers but excludes
a place of amusement.
The kitchen layout shall comply with the Municipality's health
regulations."
[27]
The definition of a "place of amusement" in the Town
Planning Scheme is as follows:
"PLACE
OF AMUSEMENT
Means
land and buildings or a part of a building used for entertainment
purposes such as a theatre, cinema, music hall, concert
hall, table
games, skating rink, dancing, amusement park, casino, electronic
games, night club, an exhibition hall or sports arena/stadium
used
for live concerts or performances."
[28]
The first and second respondents did not dispute that the property's
zoning was for "a place of refreshment" and
not for "a
place of amusement", and merely contended that they conducted a
place of refreshment on the property and not
a place of amusement.
[29]
"Background" relating to music is defined in the New
Shorter Oxford Dictionary as follows:
"background:
6. music or sound-effects used as an accompaniment; a less prominent
position, obscured, retirement; treat as
unimportant, give no
emphasis to."
There
is clearly a vast difference between "background" music and
music being played loudly through amplifiers and loudspeakers
with a
prominent thumping beat, causing students inconvenience and stress.
[30]
At all relevant times there existed the NOISE CONTROL REGULATIONS
-GAUTENG (General Notice 5479 in Provincial Gazette 75 of
20 August
1999) and "disturbing noise", which is strictly prohibited,
is defined therein as follows:
"disturbing
noise" means a noise level that causes the ambient noise level
to rise above the designated zone levels, or
if no zone level has
been designated, the typical rating noise levels for ambient noise in
districts, indicated in Table 2 of SABS
0103;"
[31]
The respondents met the attack of the applicant against the excessive
and disturbing noise and thus the nuisance, mainly, by
relying on the
report, annexure "F", to the answering affidavit. The court
already dealt in paragraphs [8], [9] and [10]
aupia in part with
unsatisfactory aspects regarding the report. Paragraph 6 of the
report stated that amplified music was played
inside Springbok Bar
when one measurement was made by the acoustics firm at 97,1 decibels
and when another measurement was made
by them, at 91.4 decibels, to
the measuring point being "Opposite the road at the boundary
with the hostel" i.e. Asterhof,
and the remarks regarding the
noise level recorded there read as follows:
"A
serious noise intrusion due to the lack of acoustic screening
measures;"
(Own
accentuation).
[32]
Paragraph 8 of the report read as follows and illustrated the fact
that the premises of Springbok Bar did not comply with the
Noise
Control Regulations:
"8.
CONCLUSIONS AND RECOMMENDATIONS
The
following mitigatory measures are recommended in order to eliminate
the audibility of the low thumping sound:
*
The direction of the speakers during the playing of amplified music
must face away from the noise sensitive residential areas.
The
one entrance door, closest to the stage, must remain closed during
the playing of amplified music.
*A
lockout system to be installed in the sound system to keep the sound
pressure level below 90 dBA at all times.
*Amplified
music to be played on a pre-approved sound amplification system only.
*Neoprene
Closed cell seals to be applied at all openable doors and windows.
*
Beam-fill to be done and the opening on the roof to be sealed and
closed.
*
Plenum box to be placed over the extract system, which is situated on
the side of the building.
After
completion of the above mitigatory measures, a follow-up noise survey
will be carried out to determine compliance to the Noise
Control
Regulations."
[33]
The thumping sound was caused by the beat of the music as accentuated
by the drums, the amplifiers and loudspeakers used.
[34]
No mention was made by the respondents in the answering affidavit as
to what was done to rectify the situation since the receipt
of the
report, and when, and what was found during a follow-up survey, if
one was done at all. As the respondents were silent about
this aspect
the court is entitled to assume that a follow-up survey was not done.
[35]
With regard to the zoning of the erf the first and second respondents
attached a document emanating from the local municipality
as annexure
"A" to the answering affidavit regarding the erf on which
Springbok Bar conducts its business. From this
document it appeared
that the zoning of the erf was "SPECIAL subject to annexure
T:B1480." It is clear, therefore, from
this that the first and
second respondents may conduct the business of "a place of
refreshment" on the premises but not
"a place of
amusement". From the evidence placed before this court in this
matter it is abundantly clear that the said
respondents conducted the
business of a place of amusement on the premises with karaoke songs
and a lot of general shouting by
amused, shouting and cheering
patrons in the evenings. It is clear that the shouting was not
induced only by the respondents' serving
of refreshments.
[36]
The respondents are thus clearly also in breach of the zoning
conditions of the erf.
[37]
Normally in such cicumstances the court would be entitled to refuse
the condonation application but in this matter the court
decided, in
the interest of justice, to allow the answering affidavit of the
first and second respondents for clarity sake and
in the light of the
useful information contained therein which assisted the court.
The
costs of opposing the condonation application will be awarded to the
applicant.
[38]
As it is clear that the business of Springbok Bar as a place of
amusement was conducted illegally and in any case in such a
manner
that the noise emanating from its premises created an actionable
nuisance (See: Laskey and Another v Showzone CC and Others
2007 (2)
SA 48
(C)) the application must succeed on both grounds and costs
must follow the event. As punitive costs were neither asked for nor
argued such an award will not be made. Costs will be ordered against
the third respondent too as it is the owner of the erf concerned
and
it allowed the actionable nuisance on its property. (See Porter v
Cape Town City Council
[1961] 4 All SA 270
(C),
1961 (4) SA 278
(C)).
[39]
As the business of Springbok Bar is illegally conducted as a place of
amusement no period of time to do what is necessary to
abate the
nuisance can be granted and none was in any case asked for by the
respondents.
[40]
The following order is made:
1.
The answering affidavit of the first and second respondents is
admitted by the court.
2.
The respondents are interdicted from engaging in any activity in
contravention of, and in particular, from conducting any form
of
business or activity, including that of "a place of amusement",
which falls outside the Land Use Rights afforded in
terms of the
Pretoria Town Planning Scheme to the property described as Erf 651,
Hatfield, Pretoria, on which a business known
as "Springbok Bar"
is presently conducted, and associated legislation, and are
interdicted from playing any music on
the said property except
background music whilst customers are enjoying refreshments on the
property, and may not conduct any activity
on the said property that
results in humans, animals and/or machines, in the wider definition
of machines, from causing and/or
making "disturbing noise"
as is defined in the Noise Control Regulations-Gauteng promulgated in
General Notice 5479 contained
in Provincial Gazette No. 75 of 20
August 1999 and also excessive and/or disturbing noise, as is
forbidden therein and in associated
legislation and the common law.
3.
The first and second respondents are ordered to pay, jointly and
severally, the one paying the other to be absolved, the applicant's
costs of opposing their condonation application.
4.
The first, second and third respondents are ordered to pay, jointly
and severally, the one paying the other to be absolved, the
applicant's costs of the application.
P.Z.
Ebersohn
Acting
Judge of the high court
Applicant's
counsel:Adv. MP. van der Merwe
Applicants'
attorneys:Tim du Toit & Co Inc.
Tel.
012X470 7559
Ref.
A. Grove/pn1232
First
and Second Respondents' counse:Adv. Jaco Vorster
First
and second respondents' attorneys:Hartzenberg Inc.
Tel.
012x362 8994 Ref. FH/t70