About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2017
>>
[2017] ZALMPPHC 25
|
|
Combretumpark Home Owners Association (Association Incorporated Under Section 21) v Cubana Latino Cafe Ten CC and Others (3362/2016) [2017] ZALMPPHC 25 (28 August 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 3362/2016
Reportable
Of
interest to other judges
Revised.
28/8/2017
In
the matter between:
COMBRETUMPARK
HOME OWNERS ASSOCIATION
APPLICANT
(ASSOCIATION
INCORPORATED UNDER SECTION 21)
and
CUBANA
LATINO CAFÉ TEN
CC
1
ST
RESPONDENT
BENDOR
EXTENSION 68 PORTION 1 (PTY) LTD
2
ND
RESPONDENT
POLOKWANE
LOCAL MUNICIPALITY
3
RD
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Applicant brought an application against the Respondents in terms
whereof the following relief is sought:
1.1.
Interdicting the First and Second Respondents from engaging in any
activity in contravention of the Polokwane Town Planning
Scheme and
in particular from conducting or allowing to be conducted any form of
business falling outside the Land Use Rights afforded
in terms of the
Polokwane Town Planning Scheme in respect of the property situated at
Shop 16, Platinum Park Shopping Centre, 1
Pomelo Street, Polokwane,
Erf 5085/1 Bendor Extension 68, Polokwane;
1.2.
Interdicting the First Respondent from playing loud music on the
property and causing loud noise emanating from the property
thereby
creating an actionable nuisance;
1.3.
Interdicting the First Respondent from inconveniencing the occupiers
of the premises under the control of the Applicant by
playing loud
music;
1.4.
The First and Second Respondents to pay the costs jointly and
severally.
No
order is sought against the Third Respondent, and the Third
Respondent is only cited herein as a possible interested party.
[2]
In essence the Applicant seeks two forms of relief, namely:
2.2.
An order interdicting the First Respondent from engaging in any
activity in contravention of the Polokwane Town Planning Scheme
and
in particular from conducting a night club as opposed to a restaurant
on the premises and
2.1.
An order interdicting the First Respondent from playing loud music
on the property which creates a nuisance for its members.
[3]
The application is opposed by the First Respondent. The Second
Respondent abide the decision of the Court.
[4]
The Applicant is a homeowners association representing all the
property owners in the scheme comprising of 315 town house units.
The
Second Respondent is the owner of the property known as Platinum Park
Shopping Centre, which comprises of shops, including
the shop used by
the First Respondent. The First Respondent is conducting a business
known as “CUBANA’S” from
the aforementioned
premises.
[5]
The property from which the First Respondent conducts business is
zoned in terms of the Third Respondent’s Polokwane /
Perksebult
Town Planning
Scheme
2007. Such zoning permits medical consulting rooms, shops and
restaurants.
The
First Respondent runs its business in an area that can only be
described as an urban district.
[6]
The Applicant alleges that the First Respondent is associated with
live bands and / or loud music played into the early hours
of the
mornings. That the high noise levels are a nuisance to the Applicant
in that it impairs on the rights of the property owners
of the
Applicant and it constitutes an unlawful actionable nuisance.
[7]
As may be deduced from the nature of the relief sought by it, the
Applicant’s complaint is founded on what it contends
to be the
unacceptable level of noise, particularly music, emanating from
Cubana, during the performances which take place on a
regular basis.
[8]
As per its internet website the First Respondent advertises itself
as:
“
Cubana
is South Africa’s only authentic Latino Social Caffe
`
and eatery which provides the service of a cocktail bar and
ciger lounge with a unique flavoursome cuisine. Our focus is
to be a
social Caffe
`
and not a club or restaurant”
Furthermore,
as part of its entertainment the First Respondent offers “flairing”
and “flame shows” which
can be described as setting
alight alcohol which is spit from a person’s mouth.
The
aforementioned advertisement and entertainment offer are contained in
Annexures “D” and “E1” to the
Founding
Affidavit.
[9]
The Applicant alleges further that the First Respondent’s
business can be best described as a night-club / bar. That its
customers can often be found in the parking area in front and outside
of the premises, continuing with the party atmosphere creating
more
loud noise. This night-club like atmosphere is a regular occurrence
and can be associated with weekends starting in the afternoon
and
lasting into the early hours of the morning (2 am being a regular
occurrence).
[10]
The Applicant alleges further that although these actions by the
First Respondent are usually associated with weekends, it
is not
uncommon during the week to hear loud music emanating from the First
Respondent’s premises. On Annexure “E2”
to the
Founding Affidavit it is stated “the night will be switched on”
during the 17 March 2016, being a Thursday.
The invitation or
advertisement further states that Dino Bravo will be featured,
clearly referring to entertainment. On this basis
the Applicant
concludes that the First Respondent is not operating a restaurant in
the normal sense of the word but rather a bar
or night club.
[11]
The Applicant has annexed eight confirmatory affidavits by some
residents of the adjacent town houses in close proximity of
the First
Respondent’s premises marked annexures “F1 – F8”.
In the said affidavits the residents complain
and state that it is
nearly impossible to have a good night rest as the loud music and
noise emanating from the First Respondent’s
premises cause a
serious interference to their physical comfort of human existence.
[12]
The allegations as set out in paragraphs 6 to 11 above, have not been
denied or disputed by the First Respondent in its answering
affidavit. Consequently the facts relied upon by the Applicant are
accepted as true and correct.
[13]
The issues to be decided in this matter are the following:
13.1.
Whether the First Respondent is engaging in any business activity in
contravention of the Polokwane Town Planning Scheme,
in particular
conducting or allowing to be conducted any form of business falling
outside the Land Use Rights afforded in terms
of the Polokwane Town
Planning Scheme;
13.2.
Whether the Applicant has made out a proper case why it is entitled
to an interdict directing the First Respondent to
desist from playing
loud music on the property causing loud noise which is an actionable
nuisance.
[14]
The property occupied by the First Respondent is zoned by the Third
Respondent in terms of the Polokwane / Perskebult Town
Planning
Scheme 2007 for “Business 3” use, which allows the
premises to be used for Single Family Residence, Offices,
Medical
Consulting Rooms, Shops and Restaurants. This much can be seen from
annexure “G” to the Founding Affidavit
being a copy of
the Zoning Certificate issued by the Third Respondent dated 3 March
2016.
[15]
In terms of Part 2, under Definition of terms in the Town Planning
Scheme:
“
6.78
PLACE OF AMUSEMENT – means land used or a building designed or
used, with a view to
profit,
as a public hall, theatre, cinema, music hall, concert hall,
billiards room, sports stadium, skating rink, dance hall, night
club,
strip club, sport club, for trade or industrial exhibitions or for
other recreational purposes”
“
6.91
RESTAURANT – means a building or part of a building used for
the preparation and sale of meals and refreshments, confectionary
for
consumption on the property and includes the subservient serving and
consumption of liquor on the property, can also include
a place of
refreshment as well as a drive-through restaurant, but excludes a
“PLACE OF AMUSEMENT as a primary right”
[16]
If cognizance is given to the definition of a “RESTAURANT”
it explicitly excludes a “PLACE OF AMUSEMENT”.
In my view
the First Respondent falls within the definition of a night club and
therefore falls outside the definition of a restaurant.
It can best
be described as a place of amusement as per its own definition of
cocktail bar and flame shows or flairing coupled
with the fact of
live bands or music playing into the night which is usually
associated with the word “night-club”.
[17]
Clause 9.3 of the Polokwane / Perskebult Town Planning Scheme 2007
reads as follows:
“
9.3.
No person shall without consent being granted in terms of clauses 21,
22 or 24 hereof use, or cause or permit to be used, any
building or
part thereof for purposes other than the purpose for which it was
zoned”
No
such permission was given by the Third Respondent, as evident from
the zoning certificate.
[18]
I accordingly make a finding that the First Respondent operates its
business activity in contravention of the Land Use Rights
afforded by
the Polokwane Town Planning Scheme.
[19]
The First Respondent does not deny that as at the time the present
proceedings were instituted against it, that is on 15 August
2016, it
played loud music. The music played on the premises cannot be
described as “Background” music that you would
normally
find in a restaurant.
[20]
Such music can be described as a disturbing noise as was aptly said
in the matter of
University
of Pretoria v The Partnership, Firm or Association known as Springbok
Bar and Others (75442/2009) [2011] ZAGPPHC 86 (16
February 2011) at
paragraph 29
wherein Ebersohn AJ stated the following:
“
At
all relevant times there existed the NOISE CONTROL REGULATIONS –
GAUTENG…………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
noise levels for ambient noise in districts, indicated
in Table 2 of
SANS 10103”
[21]
The factors which have been regarded as material in determining
whether the disturbance is of a degree which renders it actionable,
include (where the disturbance consists of noise) the type of noise,
the degree of its persistence, locality involved and the times
when
the noise is heard. The test, moreover, is an objective one in the
sense that not an individual reaction of a delicate or
highly
sensitive person who truthfully complains that he finds the noise to
be intolerable is to be decisive, but the reaction
of the reasonable
man – one who, according to ordinary standards of comfort and
convenience, and without any peculiar sensitivity
to the particular
noise, would find it, if not intolerable, a serious impediment to the
ordinary and reasonable enjoyment of his
property.
[22]
The above legal principle and test applied in determining whether a
disturbance or noise is of a degree which renders it actionable
were
set out by Miller J (as he was then) in
De
Charmoy v Day Star Hatchery (Pty) Ltd
1967 (4) SA 188
(D & C.L.D)
at 192 D – F
.
[23]
I proceed, then, to consider whether, in the light of the principle
set out above, the evidence justifies the Applicant’s
assertion
that we are here dealing with a serious and substantial invasion of
the rights of its members.
[24]
There is no evidence from the First Respondent to gainsay the
Applicant’s allegations that the First Respondent is associated
with live bands and / or loud music played into the early hours of
the mornings.
[25]
The First Respondent in its answering affidavit does not depose to
the absence of noise but simply indicate that such noise
levels fall
within acceptable levels.
[26]
It has been stated by Binns-Ward AJ (as he then was) in the matter of
Laskey and Another v Showzone CC AND Others
2007 (2) SA 48
(C)
para 19
as follows:
“
Everyone
is in general permitted in common law to use their property for any
purpose they choose, provided only that the use of
the property
should not intrude unreasonably on the use and enjoyment by the
neighbours of their properties. What constitutes reasonable
use 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 neighbours”
[27]
It is admitted by the First Respondent that they do have DJ’s
that select and play music. Furthermore the First Respondent
did not
deny that such music is amplified. In my view, if such music is
amplified there can be no distinction between a live band
and a DJ
playing such music over loud speakers. The First Respondent does not
deny the existence of noise pollution but state that
such noise
levels are within acceptable levels.
[28]
The Applicant has succeeded in showing that the noise generated from
the First Respondent’s night club is excessive and
thus
unreasonable. The test for reasonableness was expressed by Prof J.R.L
Milton as follows:
“
The
determination of when an interference so exceeds the limits of
expected toleration is admitted by invoking the test of what,
in a
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.”
See
LAWSA,
Joubert et al (first re-issue) Vol 19 Nuisance at para 189 pages 135
– 6
.
[29]
The First Respondent relies on three executive summary reports (noise
measurement reports) to justify its contention that the
noise levels
were within acceptable levels. The first report is dated 14 February
2015 and compiled by one GR Dekenah. The second
survey was done on 7
October 2015 and generated by Ship Practitioners (Pty) Ltd under the
executive summary compiled by GR Dekenah.
The third survey was done
on 19 September 2016 and generated by Ship Practitioners (Pty) Ltd
under the executive summary compiled
by Andre
’
Van Zyl and signed off by GR Dekenah.
[30]
In my view the three reports cannot be relied upon to substantiate
the reasonableness of the noise generated by the First Respondent.
The three noise measurement reports refer to the municipal zoning
area as the CBD (Central Business District) which is incorrect
because the area from which the First Respondent operates their night
club can only be described as an urban district. This then
means that
the environmental noise survey was conducted from the premise that
the area from which the First Respondent conducts
its business is a
CBD whilst the area is actually an urban district. Accordingly, these
noise measurement reports are irrelevant
for purposes of the present
case and same should therefore be disregarded.
[31]
I come to the conclusion that the Applicant made out a proper case
that the sound contribution by the First Respondent, from
a
residential suitability perspective, is such a nuisance that it
constitutes an unlawful and actionable nuisance.
[32]
In the result I grant the following order:
(1)
The
First Respondent is interdicted from engaging in any activity in
contravention of Polokwane Town Planning Scheme and in particular
from conducting or allowing to be conducted any form of business
falling outside the Land Use Rights afforded in terms of the
Polokwane Town Planning Scheme in respect of the property situated at
Shop 16, Platinum Park Shopping Centre, 1 Pomelo Street, Polokwane.
(2)
The
First Respondent is interdicted and restrained from inconveniencing
the occupiers of the premises under the control of the Applicant
by
playing loud music. Without derogating from the generality of the
meaning or description of a loud music, the First Respondent
shall
not cause a noise pollution or sound contribution in excess of the
acceptable rating of 45 dBA (decibels).
(3)
The
First Respondent is interdicted and restrained from playing loud
music, with the sound thereof measuring in excess of 45 dBA
on the
property and causing loud music emanating from the property thereby
creating an actionable nuisance.
(4)
The
First Respondent shall pay the costs of the application which shall
include the costs of Senior Counsel.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 18 August 2017
Judgment
Delivered
: 29 August 2017
For
Appellant
: Adv. J J Hattingh SC
Instructed
by
: Bosman Attorneys
Polokwane
For
Respondents
:
Adv. R S Van Riet SC
Instructed
by
: Pepler O
’
Kennedy
c/o
Rheeder Attorneys
Polokwane