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[2008] ZAWCHC 182
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Body Corporate Wale Street Chambers v Kuhn and Another (5983/2007) [2008] ZAWCHC 182 (23 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
DATE:
23
APRIL 2008
CASE
NUMBER
:
5983/2007
In
the matter between:
BODY
CORPORATE
WALE
STREET CHAMBERS
APPELLANT
and
RICHARD
JOHN KUHN
1
st
RESPONDENT
ALICE
THERESA O'BRIEN
2
nd
RESPONDENT
JUDGMENT
DAVIS,
J
:
This
is an application which has been brought by the body corporate of a
sectional title scheme known as Wale Street Chambers.
In the
founding affidavit in support of the relief,
Mr
Cudlip
,
the chairman of the body corporate describes the premises as
follows:
"Wale
Street Chambers consists of 296 registered sections. 40 of these are
used as office premises, 26 are used as storerooms,
S are used as
retail premises, 1 is used as a penthouse and 221 are parking bays.
Wale Street Chambers is therefore an office
block providing good
quality office accommodation storage of a limited nature and parking
facilities to it occupants. The office's
is situated in Wale Street
Chambers and include offices of attorneys, accountants, investment
companies, surveyors and certain
local government departments. Wale
Street Chambers is not used as and is not intended for use as
industrial premises or as premises
where welding, metal work and
other industrial processes are carried out."
It
appears to be undisputed that first respondent has conducted a
welding and other metal work business in a storeroom in the
building. The allegation, which is made in the founding affidavit
and admitted by first respondent, is to effect that "He
uses
the premises as business workshop here in Cape Town". He has
expressly admitted that "the business with welding
and repairs
for the Greenmarket arose, because people saw me and asked me to do
some work fixing little piece of iron for their
canopies"
The
first aspect of relief which has been sought is an interdict
preventing first respondent from continuing with this metalwork
t
welding and repair business in the storeroom. It is brought on two
bases, namely; that this activity constitutes a nuisance and
secondly that it is in manifest reach of the rules of the body
corporate.
As
Mr
Oosthuizen
,
who appeared on behalf of the applicant, submitted, it is clear from
the description in the founding papers that Wale Street
Chambers is
an office block. It is not intended for the use of a workshop where
welding and metal cutting are performed. The
storage rooms on the
premises were intended to meet the storage requirements arising for
the use of the offices, that is for
storage of items such as files
and office stationary and other superfluous equipment and items of
furniture which may not be
required on a day to day basis.
First
respondent has employed one of the storerooms and two adjacent
parking bays, which he is entitled to use, however, for a
completely
different and incompatible purpose, namely the welding of trolleys
of street vendors and the provision of storage
at a monthly rental,
a type of mini storage facility where street vendors can overnight
store their trolleys and goods.
Since
these activities are not denied by first respondent that they do
constitute a nuisance. As the courts have said, and I refer
here in
particular to:
Advokate
Vereniging (TPA) v Moskeeplein
1982 (3) SA 159
(T) at 163 where
Etoff.
J
,
referring to the
De
Charmov
case observed the nuisance can
be
tested on the basis of one
"Who
according to the ordinary standard of comfort and convenience and
without any peculiar sensitivity to the particular
noise would find
it if, not quite intolerable, a serious impediment to the ordinary
and reasonable enjoyment of his property"
Eloff,
J
then referred to the Restatement of the Law of Torts:
'The
standard for determining the substantiality of such invasions is a
standard of normal persons in the particular locality.
If normal
persons living in the locality would regard the particular situation
as definitely offensive or annoying then invasion
is substantial."
In
addition to the conclusion that welding and metal work in an office
block constitutes, in the eyes of a reasonable person,
a form of
nuisance, I also agree with
Mr
Oosthuizen
that the rules of the body corporate, and the powers of the body
corporate as such, entitled that body to ensure that the building
is
employed for the purposes for which it was intended, which clearly
does not include a metal working business, notwithstanding
that
first respondent describes it as
"a
Mickey Mouse operation"; that is a small and fairly trivial
business.
Significantly,
in argument before this court,
Mr
Kuh
n
who represented (first respondent) accepted that his metafwork and
welding business had to come to an end insofar as it was
conducted
from the premises of Wale Street Chambers. He agreed to desist from
further conduct of this business as from 30 June
2008.
The
second issue which flows from the relief sought turns on first
respondent's alleged abuse of the security system. It is undisputed
on the papers that each owner or tenant is entitled to access to the
building by way of a remote control and that further or
visitors to
Wale Street Chambers are required to report to reception desk.
Obviously these requirements which are intended to
preserve the
security of the building under the present climate which operates in
South Africa are reasonable and understandable.
The
papers also indicate that the first respondent had tampered with and
forced open the rolling door at the entrance to the garage,
instructed a third party to override the security access system and
permitted his clients to gain access to the building without
reporting to reception desk in the main foyer.
Although
the answering papers are hardly a model of clarity, having been
prepared by first respondent as a layperson, it is clear
that this
conduct did take place as alleged and accordingly these allegations
are not placed in dispute.
A
further issue arises as to the employment by first respondent, of at
least one of his two bays designed as a parking bay for
a vehicle,
for the storage of trolleys which apparently are employed by vendors
at Greenmarket Square.
If
a range of vendors are entitled to park their trolleys in a bay
which was intended for a motor vehicle, the volume of such
'trolley'
traffic by way of parking of trolleys in the building, raises the
potential compromise of the security system of Wale
Street Chambers.
It
is my view, that whilst first respondent is perfectly entitled to
use a parking bay which he owns, or which he has leased for
any
motor vehicle, either his own or owned by a person duly authorised
by him, it would be incorrect to allow these parking bays
to be used
for the storage of a plethora of trolleys.
Two
further issues arise. First respondent brought a counter claim in
the amount of R1 800 450 and for ancillary relief. I informed
the
first respondent that a claim of this nature could not be brought by
way of an application, but only by way of an action.
If he wished to
pursue his claim he would have to launch a properly considered
action for the amount which he has so claimed
and the other relief
which he wishes to obtain from applicant, i wili therefore say no
more about the counter application.
The
final question arises as to costs. Ordinarily costs follow results
and the applicant is entitled to its costs. It is also
true that in
this particular matter first respondent has hardly been shy in
making a whole range of remarks of a negative and
derogatory fashion
about members of the body corporate and the manner in which the
matter was conducted. But he is clearly a
man of limited means,
acting on his own and I feel sure that had an attorney advised him
properly, this matter could have been
resolved long before it went
to court. Whilst
Mr
Oosthuizen
is correct that it is unarguable that the costs will be born by the
sectional title holders of the Wale Street Chambers rather
than
first respondent, the truth is that the bulk of the costs would be
born by them anyway, given the tariff which applies.
Furthermore I
have some sympathy for a litigant who in a sense is alone and ill
advised in that he was not afforded proper legal
advice.
For
these reasons the following order is made:
1. First
respondent is prevented as from any time after the 30
th
of June 2008 form conducting any metal work, welding, manufacturing
or repair business from the premises known as section 287
Wale
Street Chambers or any other part of the building known as Wale
Street Chambers.
2. First
respondent is directed to comply with all such conduct rules as made
from time to time applying to Wale Street Chambers.
In order to
comply with such order, first respondent shall be provided with a
copy of the conduct rules and any such amendments
as may be made
from time to time.
3.
First
respondent is interdicted and prevented from:
3.1
Tampering
with or endeavouring to alter in any manner the access control
system installed at Waie Street Chambers.
3.2
Using
the Berg Street entrance to Wale Street Chambers for any purpose
other than:
3.2.1
Entering or leaving the building in any motor vehicle parked by
first respondent or by any person duly authorised by him
in a
parking bay section owned by or leased to him.
3.2.2
Moving goods stored in section 237 into or out of the building.
In
any way blocking access to any parking bay section in the building
which is not owned by or lease to htm
Any
way interfering with the security personal employed by the body
corporate at Wale Street Chambers
Utilising
sections 275 and 287 of Wale Street Chambers in any manner which
conflicts with the zoning scheme currently applicable
to Wale
Street Chambers.
4.
There is no order as to costs.