Laskey and Another v Showzone CC and Others (5988/06) [2006] ZAWCHC 50; [2007] 4 All SA 1162 (C); 2007 (2) SA 48 (C) (30 October 2006)

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[2006] ZAWCHC 50
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Laskey and Another v Showzone CC and Others (5988/06) [2006] ZAWCHC 50; [2007] 4 All SA 1162 (C); 2007 (2) SA 48 (C) (30 October 2006)

REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NO.5988/2006
In the matter between:
WAYNE ALAN LASKEY FIRST APPLICANT
DAVID PETER ANDERSON SECOND APPLICANT
and
SHOWZONE CC FIRST RESPONDENT
RUSSELL ALEXANDER SHAPIRO SECOND RESPONDENT
OFF BROADWAY THIRD RESPONDENT
JOHN HUGHES FOURTH RESPONDENT
JUDGMENT
Delivered on 30 October 2006
BINNS-WARD AJ
The applicants, who are the owners and occupiers of two inner city
apartments in Cape Town, seek the following substantive relief:
‘An order interdicting the First to Third Respondents from:
Causing or allowing to be caused from the premises at
88 Shortmarket Street, Cape Town, a “disturbing noise”
and/or
a “noise nuisance” as defined in the Noise Control
Regulations…
and
Conducting any business from the premises…in a manner which
constitutes a nuisance and/or disturbs the Applicants’ right
to
free and undisturbed use and possession of their properties situate
at….’
By the time the matter was argued it was accepted that any interdict
which might issue should be granted against only the first
respondent, to whom, for convenience, I shall therefore hereafter
refer simply as ‘the respondent’.
The respondent operates ‘On Broadway’, a well-known
theatre-restaurant in Cape Town. The theatre was situated initially
at
an address in Green Point, but in April 2005 it moved premises to
88 Shortmarket Street, in the central business district. The
new
premises of On Broadway abut directly onto the building situate at
74 Loop Street, where the applicants’ apartments
are situated
on the third and fourth floors, respectively. Indeed the
applicants’ apartments look out over the roof of On Broadway.
As may be deduced from the nature of the relief sought by them, the
applicants’ complaint is founded on what they contend to
be the
unacceptable level of noise, particularly music, emanating from On
Broadway, during the performances which take place there
on a
regular basis.
The applicants claim that they are entitled to interdictory relief
against the respondent because it is common cause on the evidence
that the noise levels emanating from On Broadway during the evening
shows qualify as
‘disturbing noise’
as defined in the
Noise Control Regulations made by the Provincial Minister of
Environmental Affairs (Western Cape) in terms of
s 25 of the
Environment Conservation Act 73 of 1989 (‘the ECA’).
1
A ‘
disturbing noise
’ is defined in the regulations as ‘a
noise level that exceeds the ambient sound level measured
continuously at the same measuring
point by 7 dBA [i.e.
decibels
2
]
or more’.
It is relevant in the context of the applicants’ complaint to
observe that a ‘
disturbing noise
’ is defined in a
technical manner measured as a sound level above a variable base,
and without any indicated reference to its
effect on the amenities
of any person. The variable base is the prevalent ambient noise
level- accordingly a much louder noise
would be needed to qualify as
a ‘
disturbing noise
’ in a busy urban environment than
would be the case in a quiet wilderness area. The repeated cry of a
fish eagle in a quiet
wilderness area, pleasing and evocative as it
might be to the ear of the average human visitor, would nevertheless
in all likelihood
qualify as a ‘
disturbing noise
’ in
terms of the regulations. I make the observation merely to
illustrate that it does not seem to follow that a ‘
disturbing
noise
’ as defined in the regulations would necessarily be
disturbing in the ordinary sense of the word, or nuisancesome in the
sense
necessary to found a claim in neighbour law. By contrast,
there is also reference in the regulations to a ‘
noise
nuisance
’, which is defined as a ‘
sound which
disturbs
or impairs or may
disturb
or impair the
convenience or peace of any person
’ (my emphasis). It is
readily conceivable in my view that a ‘
disturbing noise
’,
as defined, may or may not, depending on the circumstances, also be
a ‘
noise nuisance
’. The reason for the potential
distinction provided in the regulations between a ‘
disturbing
noise
’ and a ‘
noise nuisance
’ is less than clear.
Regulation 4 provides as follows:
‘
4 Prohibition of disturbing noise
No person shall make, produce or cause a disturbing noise, or
allow it to be made, produced or caused by any person, animal,
machine,
device or apparatus or any combination thereof.’
Regulation 5(a) provides that:
‘
No person shall operate or play a….drum, musical instrument,
sound amplifier, loudspeaker system or similar device that produces,
reproduces or amplifies sound, or allow it to be operated or played
so as to cause a noise nuisance’
.
Regulation 9 provides that any person who fails to comply with
regulation 3, 4 or 5 commits an offence punishable by fine or
imprisonment.
The applicants contend that they are entitled to enforce compliance
with the regulations, or put differently, that they are entitled
to
interdictory relief prohibiting the respondent from continuing in
its failure to comply with regulation 4.
Referring to the well established requirements that an applicant for
final interdictory relief has to satisfy to obtain an order,
Mr
Irish SC
who, together with Mr
Tyler
,
appeared for the respondent, submitted that it is necessary if the
applicants are to succeed in obtaining a prohibitory interdict
based
on the respondent’s non-compliance with the regulations that they
should establish that the regulations vested a right
in them, the
infringement of which was amenable to protection by an interdict.
Mr
Irish
submitted with reference to
Knop v Johannesburg
City Council
1995 (2) SA 1
(A); Faircape Property Developers (Pty)
Ltd v Premier, Western Cape
2000 (2) SA 45
(C)
3
and
Olitzki Property Holdings
v State Tender Board and
another
2001 (3) SA 1247
(SCA)
that on a proper construction of
the regulations what he called ‘civil relief’ was not available
to the applicants in the circumstances.
The aforementioned cases referred to by the respondent’s counsel
each concerned claims for compensation under the lex aquilia.
The
plaintiffs in those matters had sought to establish wrongfulness on
the basis of a breach or non-compliance by the respective
defendants
of a statutory duty. The most recent judgment in this line of cases
is that of the Constitutional Court in
Steenkamp v Provincial
Tender Board of the Eastern Cape
Case CCT 71/05, handed down on
28 September 2006. The courts declined to entertain the
plaintiff’s delictual claims for
compensation in the matters
referred to by Mr
Irish
, holding that the scheme of the
relevant statutes limited the plaintiffs to availing of other types
of remedy, such as domestic
appeal or judicial review. The
decisions in those cases were, in the respects currently relevant,
based primarily on reasons of
legal policy.
While being astute to the distinction which might fall to be drawn
between a damages case and a claim for an interdict, Mr
Irish
nevertheless contended that the principles discernible from a
consideration of the aforementioned judgments were applicable to
the
application for an interdict in this matter by parity of reasoning.
I, however, think that Mr
Fitzgerald SC
who, together with Mr
Smalberger
, appeared for the Applicants, was right when he
submitted that the matter must be approached on the basis of the
principle stated
in
Patz v Greene
& Co
1907 TS 427
,
read with
Roodepoort-Maraisburg Town Council v Eastern Properties
(Prop.) Ltd
1933 AD 87
, at 95-6
,
viz. that when it
appears that a statute was enacted in the interests of a particular
person or any class of persons, a party who
shows that he or she is
one of such persons or such class of persons and seeks judicial
intervention by way of the grant of interdictory
relief premised on
the Act is not required to show harm as a result of the
contravention of the statute, such harm being presumed.
But that
when a statutory duty was imposed not in the interest of a
particular person or a particular class, but in the public
interest
generally, the applicant must show that he or she has sustained, or
apprehends actual harm in order to obtain interdictory
relief on the
grounds of a breach of the statute.
In determining into which, if either, of the aforementioned
categories of legislation the noise control regulations fall, it is
relevant to consider the provision in the ECA in terms of which they
were made. Section 25 of the ECA provides:
‘
25 Regulations regarding noise, vibration and shock
The Minister may make regulations with regard to the control of
noise, vibration and shock, concerning-
(a) the definition of noise, vibration and shock;
(b) the prevention, reduction or elimination of noise, vibration
and shock;
(c) the levels of noise, vibration and shock which shall not be
exceeded, either in general or by specified apparatus or machinery
or
in specified instances or places;
(d) the type of measuring instrument which can be used for the
determination of the levels of noise, vibration and shock, and the
utilization and calibration thereof;
(e) the powers of provincial administrations and local authorities
to control noise, vibration and shock; and
(f) any other matter which he may deem necessary or expedient in
connection with the effective control and combating of noise,
vibration
and shock.’
The enabling provisions of s 25 of the ECA fall to be construed
with regard to the evident objects of the Act as a whole,
which
appear to me to be fairly summarised in the long title which
proclaims that it was an ‘
Act …to provide for the effective
protection and controlled utilization of the environment and for
matters incidental thereto
’.
The aforementioned contextual considerations support the conclusion
that the regulations were intended to provide for the controlled
utilisation of the environment and matters incidental thereto for
the general benefit of the public. Nothing in the content of
the
regulations themselves detracts from the effect of the contextual
considerations just described. On the contrary, it is apparent
from
the regulations that their principal object was to oblige local
authorities to administer matters relating to noise pollution
and to
define uniform criteria by which such authorities are to do so. In
the constitutional context, the regulations are recognisable
as
legislation or measures of the nature contemplated in terms of s 154
of the Constitution (Act 108 of 1996).
Support for the conclusion that the regulations were not intended
for the benefit of any particular person or class of persons
in the
sense referred to in the
Roodepoort-Maraisburg
case, supra,
is afforded by the provision in terms of regulation 7(2) and (3) of
the power to local authorities, on application,
to exempt any person
from any provision of the regulations. It would obviously be for
the local authority to determine in any
given case whether notice of
such application fell to be given to the public in general, or to
any category of identified persons.
No doubt in discharging its
obligations under
ss 3
and
4
of the
Promotion of Administrative
Justice Act 3 of 2000
in this connection the local authority would
have regard to the potential detriment to third persons that might
be occasioned as
a result of the grant of any exemption. In this
context, the local authority, in determining the potential interest
of third parties
in the decision of any application for exemption
under
regulation 7
, would inevitably have to have regard in the
broad to essentially the same considerations that a court must do in
determining issues
under what is variously labelled ‘private
nuisance’, or ‘neighbour law’. In this regard I consider that
the grant to an
applicant by a local authority of an exemption from
the provisions of
regulation 4
would not be of cognisable
interest to third parties unless the noise that would be permitted
in terms of the exemption amounted,
actually or potentially, to a
‘
noise nuisance
’ as defined in the regulations, and which
would be likely to affect such persons.
It follows that the fact that the respondent has been shown to be in
apparent breach of
regulation 4
read with
regulation 9
of the Noise
Control Regulations does not, without more, entitle the applicants
to interdictory relief. In order for the applicants
to obtain such
relief it is necessary for them to show that the breach has
occasioned them harm, or is likely to do so. I am of
the view that
in the circumstances of this case the requirement of harm would be
established if the conduct of the respondent about
which applicants
complain gave rise to a private nuisance actionable at their
instance. It is unnecessary in the circumstances
to say anything at
this stage about the argument by Mr
Irish
that the
regulations are susceptible to impugnment on account of what the
respondent contends to be their irrationality and arbitrariness
(although I shall return to that subject in a different connection
later). Indeed, the applicants have founded their claim, in
the
alternative, on the common law remedy and it is its consideration in
that context that will therefore be determinative of the
application.
Ignoring for the moment the effect of various regulatory systems
that characterise life in the modern age, such as zoning controls,
building regulations and the like, 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 usage in any given case is
dependant 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.
4
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.
’
The balance that falls be struck in the context of acknowledging the
mutual rights of neighbours to the free use and enjoyment
of their
property on the one hand and the obligation on them on the other
hand to exercise those rights in a manner which does
not
unreasonably impinge on the equivalent rights of the other implies
the necessity for some degree of what Milton describes as
‘mutual
sacrifice’, in accordance with a principle of ‘give and take;
live and let live’.
7
Noise is not uncommonly a matter of contentiousness and a source of
ill-feeling between neighbours and it is not surprising therefore
that disputes comparable to the current matter have come before the
courts over the years.
8
The import of the principles just stated in general terms were
rehearsed by Miller J (as he then was) in a noise nuisance
case
as follows:
‘…
..it goes without saying
that, especially in contemporary conditions, some discomfort or
inconvenience or annoyance emanating from
the use of neighbouring
property must needs be endured. Indeed, the Chief Justice expressly
excepted (at p. 110) [of the judgment
in
Regal v African
Superslate (Pty) Ltd
1963 (1) SA 99
(A)
]
'die gewone, wederkerige laste
wat die een buurman van die ander moet verduur'.
The difficulty in cases of this
nature lies in determining the level at which a disturbance which
results from the contiguity of two
properties, each of which is a
potential source of disturbance to the other, ceases to be a
'to-be-expected-in-the-circumstances'
interference with rights of
enjoyment of property and becomes an unwarranted and actionable
interference. This is largely a question
of fact and of judgment and
opinion, but there are guiding considerations which should be borne
in mind in the interests of fairness
to both parties, many of which
considerations have frequently been stated in South African
decisions, borrowing freely from judgments
in the English Courts. 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 in noise) the type of noise, the
degree of its persistence, the locality
involved and the times when
the noise is heard. The test, moreover, is an objective one in the
sense that not the 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 quite intolerable, a serious impediment
to the ordinary and reasonable
enjoyment of his property. (Cf.
Holland v Scott,
2
E.D.C. 307
at p. 324;
Graham v Dittmann &
Son,
1917 T.P.D. 288
at pp. 290 - 1;
Leith
v Port Elizabeth Museum Trustees,
1934 E.D.L. 211
at pp. 213 - 4;
Ferreira
v Grant,
1941 W.L.D. 186
at pp. 188 - 9;
Prinsloo
v. Shaw,
1938 AD 570
at p. 575). As has been pointed out in the
African
Superslate
case,
supra, the subject has not been worked out systematically or in
detail by Roman-Dutch law commentators.
’
See
De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) 188 (D&CLD)
at 192.
The following gloss was added in
Moskeeplein (Edms) Bpk en ‘n
ander v Die Vereeniging van Advokate (TPA) en Andere 1983 (3)SA
896(T
) at 900H-901A.:
‘
Dit is dus duidelik uit
Regal
se saak supra asook die
De
Charmoy
saak dat die
reg 'n reëling vir die botsende eiendoms-en genotsbelange van bure
moet voorsien - met ander woorde, al word daar aanvaar
dat daar 'n
geraas gemaak word deur een buurman moet sy belange ook in oorweging
geneem word om te bepaal of in die omstandighede
daardie geraas
onredelik oormatig is. By die bepaling daarvan moet onder andere die
besondere omgewing waarin die geraas plaasvind
in ag geneem word.
Waar egter, soos in die huidige
geval, dit aanvaar kan word op die stukke dat 'n geraas gemaak word
wat wel 'n stoornis veroorsaak,
berus daar, na my mening, 'n plig op
die persoon wat vir daardie stoornis verantwoordelik is om aan te
toon dat daar nie redelikerwys
stappe gedoen kan word om die stoornis
te voorkom nie.
’
The respondent contends that the applicants are not entitled to
complain because the premises now occupied by On Broadway had been
used for the best part of 40 years as ‘a place of night-time
entertainment’ at which music had been played, one assumes at
comparable volumes to that experienced by the applicants today, and
because they had ‘come to the nuisance’. The contention
proceeds that there are many restaurants and bars in the area and
that having regard to the established character of the area the
business of On Broadway ‘is being appropriately carried on at
88 Shortmarket Street, and in the circumstances constitutes
the
reasonable and natural use of those premises’, whereas the
applicants’ use of 74 Loop Street for residential purposes ‘is
inappropriate to its locality’.
9
In my judgment the respondent’s contentions argue the issues too
bluntly. While it is correct that the central business district
of
Cape Town did suffer an almost complete loss of its residential
component during the latter part of the twentieth century, there
has
been a drive in the last ten years or so to change the character of
the inner city to make it once again a place where people
both live
and work. The change that has already been wrought in this respect
is significant; it being a matter of common local
knowledge that
many formerly commercial premises have been transformed either in
whole or in part into apartment buildings. This
means that some
longstanding users of inner city space now have new neighbours. The
changing character of the inner city undoubtedly
means that noise
levels that went uncomplained about in the past because they caused
no or insignificant disturbance to the neighbours
might now invite
attention in the altered context.
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. While established noise levels are certainly a
consideration in assessing what the new class of inner city
apartment
dwellers might reasonably be expected to tolerate
10
,
it cannot be an absolute answer for somebody responsible for
creating a level of noise which exceeds what the inner city resident
should reasonably be expected to tolerate at night to say simply ‘I
was making this noise before you moved in and therefore if
you wish
to live here you will just have to put up with it, or find a home
elsewhere’. If an area is suitable for residential
occupation, or
has been popularly adopted for that use, other users of property in
the area must be accommodating of the rights
of such residents to
the reasonable amenities of life.
In his chapter on ‘
Nuisance
’ in LAWSA
11
,
Milton records that ‘
It is said to be no defence to an action
for nuisance that the plaintiff voluntarily set up a residence or
other occupation on premises
within the ambit of the nuisance.
Priority of occupation does not per se entitle a landowner to
deprive his neighbours of reasonable
physical comfort of human
existence. Likewise, a landowner cannot be said to have acquiesced
in an interference with rights of
personal enjoyment by knowingly
locating within the ambit of an existing nuisance.
’ That is
certainly the law in England
12
,
and in Canada
13
and Australia.
14
Howard Farrar, Robinson & Co Ltd v East London Municipality
(1908) EDC 149
(a matter in which the plaintiffs, having taken
up the lease of a site near an existing refuse dump, later sought
and obtained an
interdict against the local authority operating the
dump to abate the nuisance arising amongst other things from the
offensive
gases emanating from the dump) affords South African
authority in accordance with the principle.
The applicants aver that despite realising, when they moved into the
inner city, that they might have to tolerate certain intrusions
into
their comfort that suburban residents do not, life in the city
centre in fact ‘exceeded all expectations’ and that their
properties had been ‘surprisingly quiet at all hours of the day’
until the opening of On Broadway. It is clear from the actions
of
the applicants, by visiting the operator of On Broadway on more than
one occasion and engaging in correspondence calling for
remedial
action to be taken, that the increased noise levels in the area
attendant on the operation of the theatre were a cause
of discomfort
and displeasure. It is apparent that the applicants were not
concerned with the noise generated by the chatter of
the audiences
and the background music played during the pre-show suppers, but
that it was the amplified sound during performances
that was the
problem. In an email from the second applicant to the operator of
On Broadway, and majority interest holder in the
respondent, dated
16 May 2005, it was stated ‘Remember that your building abuts
directly onto mine and that you’ve effectively
got a tin roof with
just minimal insulation in some (but not all) parts between me and
your system. You have issues with noise
escaping and vibration from
bass thump which runs straight up our shared wall. The noise on
Tuesday 10 May 2005 when you had your
opening party was deafening,
turning it down slightly is not going to do the trick.’ Elsewhere
in their founding papers the
applicants say that they have tried to
protect themselves from the discomfort experienced by them due to
the noise generated during
performances at On Broadway by closing
their windows, but that this gives no meaningful relief. The
applicants claim that they
are subjected virtually nightly to what
they describe as ‘a material or substantial nuisance which is
unreasonable between neighbours’.
It appears that the
performances at On Broadway usually occur between about 20h30 and
22h30 of an evening.
Mr
Irish
however emphasised the absence of any allegations on
the papers to the effect that the noise levels complained about are
having
any physically untoward effect on the applicants- the
applicants do not claim to be sleep deprived, or to be suffering
from any
physical or psychological ill-effects as a consequence of
the noise. In this connection, he referred to a passage from the
speech
of Lord Westbury LC in
St Helens Smelting Co. v Tipping XI
H.L.C. 642
, where the Lord Chancellor appeared to draw a
distinction in the context of nuisance between usages of land
occasioning personal
discomfort and those occasioning injury to
property, saying: ‘
My Lords, in matters of this description it
appears to me that it is a very desirable thing to mark the
difference between an action
brought for a nuisance upon the ground
that the alleged nuisance produces material injury to the property,
and an action brought
for a nuisance on the ground that the thing
alleged to be a nuisance is productive of sensible personal
discomfort. With regard
to the latter, namely, the personal
inconvenience and interference with one’s enjoyment, one’s
quiet, one’s personal freedom,
anything that discomposes or
injuriously affects the senses or the nerves, whether that may or
may not be denominated a nuisance,
must undoubtedly depend greatly
on the circumstances of the place where the thing complained of
actually occurs. If a man lives
in a town, it is necessary that he
should subject himself to the consequences of those operations of
trade which may be carried
on in his immediate locality, which are
actually necessary for trade and commerce, and also for the
enjoyment of property and for
the benefit of the inhabitants of the
town and of the public at large.
’ As Mr
Irish
pointed
out, this passage has enjoyed the approbation of South African
courts on a number of occasions. He submitted that there
was a
distinction drawn in nuisance cases ‘between activities which, on
the one hand, threaten injury to property or health,
and activities
which, on the other hand, merely interfere with personal comfort’.
He submitted that the approval by the courts
in this country of
Lord Westbury’s statements in
St Helens Smelting Co.
had
the effect that ‘where conduct merely disturbs personal comfort,
the question of the environment in which it occurs assumes
heightened significance’.
15
I do not consider, however, with respect, that the frequent
approbation of Lord Westbury’s words has either added to or
derogated
from the effect of the generally applicable principles in
respect of private nuisance reiterated earlier in this judgment. In

the modern urban milieu where noise is alleged to be nuisancesome in
a situation such as that presented in this matter it is appropriate,
using the approach described by Lord Westbury, on the one hand to
accept that while restaurants and theatres are important facilities
contributing to the social amenities of the community and that
therefore persons choosing to live in areas like Loop and
Shortmarket
Streets, where such amenities are appropriately
situated, and have been for some time, should have to accommodate
the inconveniences
attendant on such voluntary propinquity, and on
the other hand to acknowledge that the availability of modern
technology to dampen
and contain the volume and frequency of
amplified sound that characterises modern theatre is a factor to be
taken into account
when judging what is reasonable or not in
circumstances. As long ago as 1882, Barry JP pointed out, when
granting an interdict
to the plaintiff who complained about the
noise emanating from a nearby workshop, that the interdict would not
prevent the defendant
from continuing to carry on his trade there if
he constructed the building in which it was conducted of different
material. See
Holland v Scott
2 E.D.C. 307
, at 316.
In the context of the emphasis placed upon them by Mr
Irish
,
it is interesting to note that the remarks of Lord Westbury in
St
Helens Smelting Co. v Tipping
were quite recently considered by
the House of Lords in
Hunter and Others v. Canary Wharf Ltd;
Hunter and Others v. London Docklands Corporation
[1997] UKHL 14
;
[1997] AC
655
;
[1997] 2 All ER 426
;
[1997] 2 WLR 684
in circumstances
which suggest that they have also been susceptible to being
misconstrued by English jurists; albeit in a different
sense. .
Lord Hoffman referred to the case, saying ‘
St. Helen's
Smelting Co. v. Tipping
was a landmark case. It drew the
line beyond which rural and landed England did not have to accept
external costs imposed upon it
by industrial pollution. But there
has been, I think, some inclination to treat it as having divided
nuisance into two torts, one
of causing "material injury to the
property," such as flooding or depositing poisonous substances
on crops, and the other
of causing "sensible personal
discomfort" such as excessive noise or smells….. But the
premise is quite mistaken. In
the case of nuisances "productive
of sensible personal discomfort," the action is not for causing
discomfort to the person
but, as in the case of the first category,
for causing injury to the land. True it is that the land has not
suffered "sensible"
injury, but its utility has been
diminished by the existence of the nuisance. It is for an unlawful
threat to the utility of his
land that the possessor or occupier is
entitled to an injunction and it is for the diminution in such
utility that he is entitled
to compensation.
’ These remarks,
which highlight the treatment of nuisance in English law as a ‘tort
against land’, serve as an illustration
of the appositeness of the
cautionary enjoinder by Steyn CJ in
Regal v African Superslate
(Pty) Ltd
1963 (1) SA 99
(A)
at 106 that our ‘neighbour law’
(
Afr.
‘buurreg’) and the English law of nuisance are by
no means identical.
16
See also LAWSA (First Re-issue) op cit supra, vol. 19 at para 185.
English law would not seem to draw the distinction that Mr
Irish
,
relying on
St. Helen's Smelting Co.
and
Gifford v Hare
(1897) 14 SC
244, at 259, sought to draw between
nuisance having a physically adverse effect and nuisance affecting
the sensibilities without
a demonstrable physical effect. And, as I
have said, I do not consider there is a proper basis in South
African law for such a
distinction either. Acts or events which
interfere with the comfort of human existence are in fact the
central subject matter
of the South African law of private nuisance,
whereas other grounds of action are primarily appropriate for acts
causing material
damage to property or physical injury to persons.
The relevance of the observations of the Lord Chancellor in
St.
Helen's Smelting Co.
must therefore be recognised as bearing
only on the axiom that the nature of the locale is factor affecting
the characterisation
of particular usage as a nuisance or not. On
my reading of the cases that is indeed the context in which they
have on repeated
occasions been approved by the South African
courts.
I am mindful however that the applicants are not entitled to
interdictory relief if their sensibility to the noise generated by
the performances at On Broadway is a manifestation of a too refined
or sensitive disposition, or an unreasonably low tolerance
level and
I accept that the measure of what stands to be tolerated is affected
by the character of the milieu in which the matter
complained of as
a nuisance occurs. I am also mindful that it has often been
observed by judges faced with cases like this that
it can be
difficult to decide where to draw the line. In this case I have
derived considerable assistance in the latter respect
from the
technical evidence provided by noise measurements taken on site at
appropriate times by qualified technicians, and from
the
consideration of those measurements by Professor J.L. van Niekerk, a
professor in the department of mechanical engineering
at the
University of Stellenbosch, who is an acknowledged expert in noise
and vibration- with particular emphasis on human response
to noise
and vibration. Professor van Niekerk’s affidavit was put in by
the respondent.
Professor van Niekerk summarises the sound measurements conducted at
the apartments of the applicants at different times by Messrs
L.J. van Rensburg and T. Mackenzie-Hoy, at the instance of the
respondent and the applicants, respectively. He expresses
the
opinion that the measurements taken by van Rensburg and
Mackenzie-Hoy seem to have been recorded appropriately in accordance
with the relevant noise regulations and the national standard
published by the South African Bureau of Standards in
SANS 10103/2004,
which he describes as pertaining to ‘the
measurement and rating of environmental noise with respect to land
use, health, annoyance
and to speech communication’.
According to the SANS 10103 standard, the acceptable rating level
for noise in residential districts situated within urban districts,
measured indoors with windows open, is 45dBA in the daytime and
35dBA at night (defined as during the hours between 22h00 and

06h00). In non-residential districts of central business districts,
the equivalent acceptable rating levels for noise are 55dBA
and
45dBA, respectively With reference to these levels and the ambient
noise levels measured in the applicant’s apartments prior
to the
commencement of the performances at On Broadway (i.e. between 45dBA
and 50dBA), Professor van Niekerk makes the point that
the
apartments are situated in what in any event might be characterised
objectively as an unacceptably noisy environment.
17
.
This observation reassures me, in the context of their expressed
general satisfaction with the noise levels in the area, that
the
applicants do not appear to be unduly sensitive to noise
disturbance, or unrealistically unaccepting of the challenges of the
environment in which they have taken up residence.
The provision in the noise regulations that a 5dBA upward adjustment
of any noise reading is required where the sound involves
a
discernible pitch is contentious, but everyday human experience
informs one that the tonal character of certain sounds such as
the
thud of bass sounds in amplified music, or the shrillness of a
ringing telephone have an especially intrusive effect over and
above
general background noise. It is unnecessary however to try to
resolve the issue of whether or not the 5dBA adjustment is
appropriate in the context of the definition of ‘disturbing
noise’. It suffices to have regard to what Professor van Niekerk
says with reference to table 3 of his report sv. â€˜
Subjective
rating of an increase in noise levels’
. Table 3 lists what
the expert describes as ‘the subjective assessment of a human of
an increase in noise level’. According
to the table, an increase
in noise level of between one and two decibels is ‘not
noticeable’; an increase of three decibels,
‘barely noticeable’;
an increase of five decibels, ‘clearly audible’ and an increase
of 10 decibels, ‘twice as loud’.
Consistently with the
information set out in table 3, Professor van Niekerk regards the
approximately 10dB difference in ambient
noise levels between those
obtaining in apartments near the junction of Loop and Shortmarket
Streets and those regarded as acceptable
in an urban residential
district as significant, and as affording the basis to characterise
the area in question as ‘very noisy’.
The noise levels measured in the apartments at various times during
performances at On Broadway indicate, even leaving the 5dBA
tonal
character adjustment required in terms of the regulations out of
consideration, that sound levels are typically increased
by between
four and eight decibels, and occasionally by more than ten decibels.
Obviously the range is affected by the content
of the various
performances and the variable nature of audience reaction to the
different shows. The nature of the contribution
of sound from On
Broadway appears to range from clearly audible to loud. If the five
dBA upward adjustment is applied, the increased
sound levels appear
much worse.
It falls to be decided whether or not this contribution of sound by
the activity at On Broadway in an area which, by its nature,
is
already very noisy, certainly from the perspective of residential
suitability, is nuisancesome to an actionable degree. After
considering all the relevant factors pointed to in the respondent’s
comprehensive and helpful written and oral arguments, a number
of
features have weighed especially in my conclusion that an actionable
nuisance has indeed been proved. The extent of the increase
in
noise levels occasioned by the productions has been demonstrated on
the evidence of Professor van Niekerk to be significant.
His
evidence in this regard corroborates the cogency of the applicants’
evidence that the comfort of their existence during
the periods that
performances are staged is materially affected. While it is true
that the performances generally occur only for
something between one
and a half and two hours of an evening, they are a regular
occurrence- not just an occasional intrusion into
the applicant’s
comfort zone with which they might be required to put up, like
everyone does when their next door neighbour throws
the occasional
party, for example. The performances occur, at least in part,
during the late hours of the evening when most people
would
reasonably expect things to be quietening down, more or less in line
with the indications in the SANS 10103:2004 table in
respect of
acceptable rating levels for noise in districts, mentioned above. I
have considered it very significant that there
are obvious steps
that can be taken by the respondent to ameliorate the problem. I
accept that the respondent has acted in good
faith to institute
measures to address the problem, and incurred not inconsiderable
expense in this respect. But it is clear from
all the expert
reports that most of the money spent by the respondent in this
connection has been wasted and that appropriate measures
still need
to be implemented.
Noise monitoring reports produced by Mr L.J. van Rensburg at the
instance of the respondent indicated that the premises of On

Broadway has a roof gallery about a metre in height with walls made
of board-like material with a number of louvers and had a corrugated
iron roof. He considered that the noise that was being heard by the
applicants was emanating through the sides and roof of the
gallery.
An inspection by Professor van Niekerk on 14 September 2006
indicated that insulation material that had been installed
by the
respondent after the receipt of initial expert reports was ‘totally
unsuitable’ for acoustic insulation and had been
haphazardly
installed, not covering the complete roof area, as would in his
opinion have been necessary to effectively acoustically
insulate the
theatre. The September 2006 inspection revealed that ‘large
openings between the roof sheeting and walls open to
the outside
were still evident and had not been acoustically sealed’. In
addition large areas of the roof had received no treatment
at all,
including that above the back of the stage. Professor van Niekerk
has recommended a number of steps for further action
including the
installation of an appropriately engineered acoustic treatment over
the entire roof area. He points out that this
will probably
necessitate removing the gallery at the apex of the roof, removing
all the roof sheeting and installing the acoustic
material before
reinstalling the roof sheeting. He considers that in the process
all openings from the theatre should either be
sealed airtight or
acoustically treated.
Professor van Niekerk considers that the achievement of what he
regards as the necessary targeted reduction of noise by about 15
decibels might be ‘ambitious’, but possible if the offending
noise is made up only of airborne noise emanating through the
roof
of the theatre. As I said, Mr van Rensburg, the other sound expert
employed by the respondent, is of the opinion that this
is primarily
the case. It seems to me on a general view of the papers to be
probable that if the steps mentioned above that have
been
recommended by Professor van Niekerk are implemented the
nuisancesome noise levels will be abated materially, hopefully to
the extent that any residual intrusion on the comfort of the
occupiers of the nearby apartments could be addressed by the simple
expedient of closing the windows.
18
(There are some indications that there might also be a problem
caused by sound vibration travelling up a common wall between the
properties, but there is insufficient evidence to make a finding in
this respect. There is also insufficient evidence on this
aspect to
enable a finding that the respondent should be liable in respect of
any discomfort occasioned to the occupants of the
applicants’
apartments by vibration in the walls.)
Mr
Irish
informed me that in the event that an interdict as
sought by the applicants were to be granted in these proceedings,
the respondent
would wish to implement the remedial measures
recommended by Professor van Niekerk and requested that any
interdictory order be
framed in a way so as to enable the respondent
to do so before the interdict became operational. Mr
Fitzgerald
,
however, opposed the granting of any such indulgence to the
respondent, relying on the authority of the judgment of the Full

Bench of the Transvaal Provincial Division in
United Technical
Equipment Co (Pty) Ltd v Johannesburg City Council
1987 (4) SA 343
(T)
, followed in
Nelson Mandela Metropolitan Municipality and
Others v Greyvenouw CC and Others
2004 (2) SA 81
(SECLD)
,
to
submit that it was not competent for this court, having found that
the applicants had made a case for final interdictory relief,
to
suspend the operation of the resultant order.
In the
United Technical Equipment
case, the appellant had
been using its land for purposes not permitted in terms of the
applicable town planning scheme, which constituted
a criminal
offence. The court of first instance had refused to suspend the
operation of a prohibitory interdict obtained by the
local
authority, pending the determination of an application which the
appellant had launched after the commencement of interdictory
proceedings instituted against it by the municipality, which, if
granted, would regularise the unlawful land use. The court of
first
instance appears to have considered that it was possessed of the
discretionary power to grant the suspension sought, but
in the
exercise of such discretion had refused to accede to the appellant’s
request. The appeal was against that part of the
judgment refusing
to suspend the operation of the interdict. Writing for the Full
Bench in the judgment on appeal, Harms J (as
he then was) doubted
the existence of a judicial discretion to
refuse
a final
interdict when an applicant had satisfied the well-known
requirements for final interdictory relief in accordance with
the
principles stated by Innes JA in
Setlogelo v Setlogelo
1914
AD 221
.
19
His Lordship, referring to the remarks of Schreiner J (as he
then was) in
Transvaal Property and Investment Co Ltd and
Reinhold & Co v SA Townships Mining and Finance Corp Ltd and the
Administrator
1938 TPD 512
at 521, expressed the view that the
discretion to refuse an interdict in such circumstances was limited
to the case where the rights
of the party complaining could be
protected ‘by any other ordinary remedy’. The court noted,
however, that in
Kemp Sacs and Nell Real Estate (Edms) Bpk v Soll
en ‘n Ander
1986 (1) SA 673
(O)
at 689, it had been held,
after consideration of the divergent views on the issue expressed in
various academic texts, that the
statement by Innes CJ in
Wynberg Municipality v Dreyer
1920 AD 439
at 447 that 'the
Court has a discretion to grant or not to grant [a final interdict]'
afforded binding authority that there is
a wide discretionary
judicial power. Despite the court’s inclination in
United
Technical Equipment
against the existence of a wide
discretionary power, the court nevertheless decided the appeal
assuming the existence of such a
power, holding on that approach
that the court of first instance had not misdirected itself in the
exercise of such discretion.
Similarly, in the
Nelson Mandela
Metropolitan Municipality
case, supra, Plasket AJ (as he then
was), while endorsing the views expressed in
United Technical
Equipment
, refused to suspend the interdictory order he had
granted on the basis of assuming that to the extent that he might
have been vested
with the discretionary power to do so, it was
inappropriate on the circumstances of the case to exercise that
power in favour of
the respondents.
The issue discussed in
United Technical Equipment
was touched
on in a Full Bench judgment of this court in
Chapmans Peak Hotel
(Pty) Ltd and another v Jab and Annalene Restaurants CC t/a O’Hagans
[2001] 4 All SA 415 (C)
at para 23, where Greisel J (Knoll
and Moosa JJ concurring) stated ‘
The existence of a general,
unqualified discretion to refuse a final interdict where all the
other requisites have been established
has been questioned.
According to LAWSA such discretion “is very limited and depends
exclusively upon the question whether the
alternative remedy is
adequate”. On the other hand, there is authority – both in this
Division and in the Appellate Division
– acknowledging the
existence of a seemingly unqualified discretion.
’
The Appellate Division authority to which Griesel J referred was
Wynberg Municipality v Dreyer
, supra, and the authority in
this Division was the judgment in
Candid Electronics (Pty)
Limited v Merchandise Buying Syndicate (Pty) Limited
1992 (2) SA 459
(C)
at 464, in which Cooper J held that the principles in
respect of the grant of specific performance of contractual
obligations
stated in
Haynes v Kingwilliamstown Municipality
1951
(2) SA 371
(A)
at 378E-F and
Benson v SA Mutual Life
Assurance Society
1986 (1) SA 776
(A)
, at 782H-783B, applied
‘mutatis mutandis in an application for an interdict’. It is
clear, however, that the learned judge
did not accept that the ambit
of the discretion to refuse an interdict was limited to a situation
where a more appropriate alternative
remedy (for example
compensation in damages) was available.
In
City of Cape Town v Rudolph and Others
2004 (5) SA 39
(C)
,
at 72G-I, Selikowitz J expressed the view that the provisions of
Uniform Rule 45A confirm that the court is empowered to suspend
the
operation of its orders. In the context of eviction cases under the
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1998, the learned judge held that the provisions in the
Act empowering the courts to delay the eviction of unlawful
occupiers of land on just and equitable grounds was no more than a
confirmation of ‘a discretion that the courts have frequently
exercised at common law’. A consideration of the authorities
cited by Selikowitz J in support of this proposition
20
illustrates other instances in which the courts, including the
Appellate Division, have been willing to act as if vested with a
discretion to suspend orders for the enforcement of a legal right to
which they had found a party to be entitled, albeit in some
cases
questioning the actual existence of such discretionary power in the
absence of any statutory provision for it. A recent
example of a
case in which a court suspended the operation of an interdict for a
period to enable the respondent ‘to put its
house in order’ is
the judgment of the Full Bench of the
Eastern Cape High Court in
Huisamen and Others v Port Elizabeth Municipality
1998 (1) SA 477
(E)
.
As I have mentioned, the applicant’s argument in this connection
was founded on the dicta in the
United Technical Equipment
and
Nelson Mandela Metropolitan Municipality
cases. As both
those matters were decided on the basis of an assumption of the
existence of a wider discretion to refuse a final
interdict than
Schreiner J considered to be available, it is plain to me that
neither of the judgments was intended to be resolutive
of what is
clearly an uncertain area in our law. Schreiner J’s remarks in
the
Transvaal Property and Investment Co
case were predicated
on what the learned judge considered to be the implications arising
from the statement in
Setlogelo
that a person with a clear
right and no adequate alternative ordinary remedy was entitled to a
final interdict. The learned judge
was not called upon to consider
the extent of the courts’ power, if any, to suspend the operation
of an interdict. In my view
the temporary suspension or
postponement of the operation of a final interdict is a question
quite distinguishable from the refusal
of a final interdict in a
context in which the applicant has satisfied the requirements for
relief. No authority has been cited
to me which makes it clear that
this court lacks the discretionary jurisdiction to suspend the
operation of a final interdict.
On the contrary, as I have shown,
precedent in this and other Divisions supports the existence of such
a power. In the absence
of any argument based on the common law to
demonstrate the fallacy of such authority, I therefore intend to
proceed on the assumption
of the existence of such a discretion.
Obviously the discretion must be exercised judicially.
Mr
Fitzgerald
submitted that a suspension of the interdict
would be tantamount to condonation of criminal conduct and
accordingly contrary to
public policy. This was a consideration
which in the context of the facts in the
United Technical
Services
and
Nelson Mandela Metropolitan Municipality
cases weighed heavily against the exercise of the assumed discretion
against the respondents, and for good reason. In my view,
however,
whereas it was plain in those matters that the respondents had
wittingly embarked on unlawful conduct, the same cannot
be said of
the respondent in this case. In the circumstances of the current
matter it is not clear, even in the context of the
finding that its
conduct amounts to an actionable private nuisance, that the
respondent is guilty of a criminal offence under the
Noise Control
Regulations. I referred earlier to certain relevant and peculiar
anomalies in the regulations. It has been unnecessary
for me to
reach any conclusion on the matter, but Mr
Irish
has
persuaded me that there is a prospect that the respondent might in
the context of any prosecution for an alleged contravention
of the
regulations be able to persuade a court that the regulations are
invalid in relevant respects on account of irrationality
or
arbitrariness. It would certainly be open to the respondent to
advance such a defence in the context of a prosecution. See
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA)
;
([2004]
3 All SA 1
(SCA))
at paragraphs
32-35.
The remedy to which the applicants are entitled in this case is an
interdict directing the respondent to abate the nuisance. They
are
not primarily entitled to an order directing the respondent to
refrain from the conduct of its theatre-restaurant business.
The
respondent will need a reasonable period of time to do what is
necessary to abate the nuisance.
21
The social utility of its business, which provides not only an
important facility of entertainment and culture, but also employment
and theatrical career opportunities to many who are vitally
dependent thereon, is such that in my view it outweighs the interest
of the applicants in the immediate cessation of the nuisancesome
noise that intrudes on their comfort for about two hours a day.
Mr
Irish
has submitted, and I agree, that having regard to the
fact that we are approaching the end of year period, when it is
notoriously
difficult to get anything in the line of building
alterations done in Cape Town, it would be reasonable to afford the
respondent
a period of four months to undertake the work necessary
to abate the nuisance. An order will issue accordingly.
This application was brought as a matter of urgency and set down for
hearing on that basis on 20 June 2006. On 22 June
2006 an
order was made by agreement by Desai J postponing the matter
for hearing in October on the semi-urgent roll and reserving
all
questions of costs. In my view, it was not appropriate for the
applicants to have moved the application as a matter of urgency,
and
accordingly they will have to bear the costs occasioned by the
setdown of the application for hearing in June.
In the result the following order is made:
The first respondent’s conduct of a theatre-restaurant business in
the premises at 88 Shortmarket Street, Cape Town in

circumstances in which the entire roof and roof gallery have not
been acoustically insulated and the openings between the roof

sheeting and exterior walls of the building have not been
acoustically sealed is declared to occasion a noise nuisance
actionable
at the instance of the first and second applicants.
The first respondent is hereby prohibited from conducting its
theatre-restaurant business from the premises at 88 Shortmarket
Street, Cape Town until effective measures have been taken to abate
the aforesaid nuisance by acoustically insulating the entire
roof
and roof gallery and acoustically sealing the openings between the
roof sheeting and exterior walls of the building.
The operation of the interdict granted in terms of paragraph (b),
above, is suspended until 28 February 2007.
The first respondent is directed to pay the applicants’ costs of
suit, including the costs of two counsel and the qualifying
expenses
of Mr. T. Mackenzie-Hoy, but excluding the costs attendant on the
setdown of the application for hearing as a matter of
urgency on
20 June 2006 and the obtaining of the directions order dated
22 June 2006.
The applicants are directed, jointly and severally, to pay the first
respondent’s costs of suit incurred in respect of the setdown
of
the application for hearing as a matter of urgency on 20 June
2006 and the obtaining of the order dated 22 June 2006,
including the costs of two counsel.
A.G. BINNS-WARD
Acting Judge of the High Court
1
Published in PN627/1998, dated 20 November 1998
2
Reg. 1 defines ‘dBA’ as the value of the sound pressure level in
decibels determined using a prescribed method and formula.
The
letter A in the abbreviation appears to denote the use of a
particular frequency weighting value.
3
Reference might more pertinently have been made to
Premier of the
Province of the Western Cape v Faircape Property Developers (Pty)
Ltd
2003 (6) SA 13
(SCA);
[2003] 2 All SA 465
(SCA)
at para
32-49.
4
It is considerations of this nature that informed
the judgments in
Du Toit v De Bot; Du
Toit v Zuidmeer
2 SC 213
(1883) (in
which De Villiers CJ declined to grant an interdict for the
abatement of an alleged noise nuisance to an applicant who
had gone
to live in a part of Paarl where a cooperage and other
‘manufactories’ carried on business) and
Jecks
& Co v O’Meara & Co
1904 TH 284
(in which Wessels J refused to come to the assistance of the
applicant who complained of the vibrations and noise caused by
machinery
at a neighbouring flour mill, holding that the locality
was a business locality in which the respondents were ‘carrying on
a
legitimate business in a legitimate manner’).
5
LAWSA ed Joubert et al (First Re-issue) vol.19
Nuisance
at
para 189, pp135-6.
6
Also reported at
[1940] UKHL 2
;
1940 (3) All E.R. 349
(HL).
7
See LAWSA (First re-issue) op cit supra, vol. 19 at para 187 and
Assagay Quarries (Pty) Ltd
1960 (4) SA 237
(N)
at 240H, where
Warner AJ observed that the ‘The homely phrases “give and take”
and “live and let live” are much nearer
the truth than the Latin
maxim
sic utere tuo ut alienum non laedas
’.
8
See the judgments cited in the footnotes to para 203 in LAWSA (First
Re-issue) op cit supra, vol. 19.
9
I quote from the respondent’s heads of
argument.
10
Cf.
Allaclas
Investments (Pty) Ltd and another v Milnerton Golf Club
CPD case no. 8552/04 (judgment dated 24 August 2004, as yet
unreported, but which may be accessed on the internet at
http://law.sun.ac.za/cgi-bin/list.php
.)
11
LAWSA ed Joubert et al (First Re-issue) vol.19
Nuisance
(by
JRL Milton, revised by ES Pugsley) at para 226, p. 152.
12
The Law of Torts, JG Fleming, 9th ed (1998) at 491;
Sturges v
Bridgman
(1879) 11 ChD 852
; Attorney-General v Corporation of
Manchester
(1893) 2 Ch 87
at 95. Lord Denning MR’s judgment
in
Miller v Jackson
[1977] EWCA Civ 6
;
1977 QB 966
(CA)
;
[1977] 3 All ER 338
(CA)
, which is cited by Milton, loc cit, as authority ‘that in
certain circumstances the fact that nuisance existed at the time the
plaintiff came within its ambit may constitute a defence’ was a
minority judgment.
13
Russell Transportation Ltd v Ontario Malleable Iron Co.
[1952] 4
DLR 719
; Douglas Lake Cattle Co. v Mount Paul Golf
2001 BCSC 566
at
para 15.
14
Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd &
Anor
[2000]
VSC 214
, in which Gillard J held (at para 73-4):
‘
It is
well established that it is no defence to an action for nuisance
that the plaintiff willingly came to occupy a property knowing
that
there was a nuisance or a potential for a nuisance. "The
doctrine of coming to a nuisance may be looked on as exploded.
A man
is not precluded from maintaining an action or a suit by the fact
that the business which creates the nuisance had been carried
on
before he took possession." - see Kerr on Injunctions, 2nd ed.
at p.208. See also the Law of Torts by Dr Fleming,
9th ed. at
p.491.
But
the important issue here concerns the obligations of the defendants
in the operation and conduct of their golf course. They
do not have
superior rights to adjoining landowners merely because they were
there first and conducting a golf course.’.
See also
Campbelltown Golf Club Limited v Winton & Anor
[1998]
NSWSC 257
(unreported, NSWCA CA No 40056 of 1996, judgment
dated 23 June 1998), referred to in this court’s judgment in
Allaclas Investments (Pty) Ltd and another v
Milnerton Golf Club
(see footnote
10, above).
15
The quotations are from the respondent’s heads of argument.
16
The differences between the two systems have sometimes been
obfuscated by the labelling of some cases which were in fact
aquilian
actions as ‘nuisance’ cases. For example, in
Wynberg
Municipality v Dreyer
1920 AD 439
(referred to again in a
different connection later in this judgment), which concerned a
claim for interdictory relief and aquilian
damages arising from the
pollution of the plaintiff’s water supply by offensive matter
which the local authority had allowed
to percolate from its nearby
sewerage works, Innes CJ remarked, at p. 447, ‘Now one of the
remedies for a delict of this nature,
amounting to
what the
English law would call
a nuisance, is the remedy of an
interdict.’ (My underlining.) That passing reference to the
English law of nuisance resulted
in the editors of the law reports
mislabelling the case in the headnote as a ‘nuisance’ case.
There are several indications
in the judgment itself, however, which
demonstrate the Appeal Court’s conscious treatment of the claim in
issue as one founded
in delict, under the lex aquilia.
17
The respondent referred in their answering
affidavit to a table in a document published on the website of the
City of Cape Town
Department of Health which reportedly contains a
table illustrating ‘typical noise levels’ and which describes
‘common sounds’
in the 30dB-50dB range as ‘rainfall, quiet
office’, refrigerator, computer’ with the perception of sound
‘heard faintly’.
I find it impossible to reconcile these
indications with the evidence of the experts who have made
affidavits in this application.
Prof. van Niekerk, for example,
describes an area with an ambient sound level of 45-50dBA as ‘very
noisy’. I can only speculate
that the difference might be due to
the ‘A’ weighting in the sound measurement.
18
Mr
Irish
submitted that the nuisance that the applicants
complain about could be effectively addressed if they simply closed
their windows
during performances. The sound measurements taken,
which are not in dispute, however, indicate that the performances
would still
be clearly audible above the already very noisy ambient
levels even with the windows closed. In my judgment this is not a
reasonably
acceptable situation in the context of the overall
conspectus of relevant considerations.
19
‘…a clear right: injury actually committed or reasonably
apprehended, and the absence of similar protection by any other
ordinary
remedy.’
20
Voortrekker Pers Beperk v Rautenbach
1947 (2) SA 47
(A)
at
50;
Lovius and Shtein v Sussman
1947 (2) SA 241
(O)
at 243;
Potgieter and Another v Van der Merwe
1949 (1) SA 361
(A)
at
374;
Van Reenen v Kruger
1949 (4) SA 27
(W)
at H 29;
Palabora Mining Co v Coetzer
1993 (3) SA 306
(T)
at 310J -
311B.
21
Even the noise control regulations upon which the applicants rely
provide for the giving of an instruction notice by the local
authority stipulating a time by which noise nuisance must be abated.
See reg. 2(c).