Laskey and Another v Showzone CC and Others

• Jurisdiction: South Africa
• Judge: Binns-Ward AJ
• Judgment Date: 30 October 2006
• Citation: 2007 (2) SA 48 (C)
• Docket Number: 5988/2006
• Hearing Date: 10 October 2006
• Counsel: M J Fitzgerald SC (with A Smalberger) for the applicants. D F Irish SC (with T Tyler) for the respondents.
• Court: Cape Provincial Division

Laskey and Another v Showzone CC and Others
2007 (2) SA 48 (C)

2007 (2) SA p48

Citation	2007 (2) SA 48 (C)
Case No	5988/2006
Court	Cape Provincial Division
Judge	Binns-Ward AJ
Heard	October 10, 2006
Judgment	October 30, 2006
Counsel	M J Fitzgerald SC (with A Smalberger) for the applicants.; D F Irish SC (with T Tyler) for the respondents.

Flynote : Sleutelwoorde E

Interdict — Final interdict — Requirements for — Injury actually committed or reasonably apprehended — Continued F contravention of noise control regulations by theatre-restaurant business — Distinction between statute enacted for benefit of public generally and statute enacted for benefit of particular person or class of persons — Former requiring proof of harm — Noise control regulations enacted for benefit of general public — Harm shown if applicants showing G actionable private nuisance — Applicants doing so — Interdict granted but operation suspended to allow for mitigation.

Nuisance — Abatement of — Excessive noise — Interdict — Requirements for — Injury actually committed or reasonably apprehended — Proof of — Proof of actionable nuisance establishing harm — Continued contravention of H noise control regulations by theatre-restaurant business — Distinction between statute enacted for benefit of public generally and statute enacted for benefit of particular person or class of persons — Former requiring proof of harm — Noise control regulations enacted for benefit of general public — Harm shown if applicants showing actionable private nuisance — Applicants doing I so — Interdict granted but operation suspended to allow for mitigation — Quaere: Whether, even in context of finding that respondent's conduct amounting to actionable private nuisance, respondent guilty of criminal offence under regulations.

Interdict — Final interdict — Suspension of — Court having discretion to order suspension of interdict — Court granting order interdicting continued J

2007 (2) SA p49

contravention of noise control regulations by respondent's theatre-restaurant business — Respondent requiring A reasonable period of time to abate nuisance — Social utility of respondent's business outweighing applicants' right to immediate cessation of nuisance and justifying temporary suspension of order.

Nuisance — Disturbance caused by noise — Abatement of — Factors to be taken B into consideration — Test to be applied and generally applicable principles restated.

Headnote : Kopnota

The applicants were the owners of residential apartments in the Cape Town CBD. In the same building the respondent conducted a theatre-restaurant business. They sought to interdict the respondent from continuing to contravene the Noise Control C Regulations (Western Cape) by causing a 'disturbing noise' and/or a 'noise nuisance' as defined in the regulations through the amplification of sound during performances. In the event of the Court's granting the interdict sought, the respondent requested that the order be suspended in order to give it an opportunity to take steps to remedy the applicants' complaint. D

Held, that when an applicant sought to interdict the continued contravention of a particular statute, and that statute had been enacted in the interests of a particular person or class of persons, the applicant was required to show that he or she was such a person or belonged to such class of persons, but was not required to show harm as a result of such contravention, harm being presumed. However, where the statute had been enacted in the public interest E generally, the applicant was required to show that he or she had sustained, or apprehended, actual harm in order to obtain an interdict on the grounds of contravention of the statute. (Paragraph [13] at 54E - H.)

Held, further, that the noise control regulations had been enacted for the general benefit of the public and not for the benefit of any particular person or class of persons. (Paragraph [16] at 55D - E.) F

Held, further, that it followed that, in order for the applicants to secure their interdict, they had to show that the breach of the Regulations had occasioned or was likely to occasion them harm. The requirement of harm would be established if the conduct of the respondent about which applicants complained gave rise to a private nuisance actionable at their instance. (Paragraph [18] at 56B - C.)

Held, further, that, in the present case, an actionable G nuisance had been proved: (a) The extent of the increase in noise levels occasioned by productions at the premises had been shown to be significant; (b) the applicants' evidence was that they endured material discomfort as a result of the increase in noise levels; (c) while the performances were themselves short-lived, they were a regular occurrence and occurred late at night; and (d) it was significant that there were obvious steps H that the respondent could take to ameliorate the problem. (Paragraph [37] at 65D - I.)

Held, further, that the Court did have the power to suspend the operation of a final interdict. (Paragraph [45] at 69D - F.)

Held, further, that the respondent would need a reasonable period of time to do what was necessary to abate the nuisance. The social utility of its business, which provided not only I an important facility of entertainment and culture, but also employment and theatrical career opportunities to many, outweighed the applicants' right to an immediate cessation of the nuisance and justified the temporary suspension of the order. In the circumstances of the case, a suspension of four months would be reasonable. (Paragraph [47] at 70B - F.) J

2007 (2) SA p50

Held, accordingly, that: (a) The conducting of the respondent's theatre-restaurant business from the premises A constituted a noise nuisance actionable at the instance of the applicants; (b) the respondent was prohibited from conducting its business until effective measures had been taken to abate the nuisance; and (c) the operation of the interdict was suspended for a period of four months. (Paragraph [49] at 70G - I.) B

Cases Considered

Annotations

Reported cases

Southern African cases

Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club 2007 (2) SA 40 (C): compared C

Assagay Quarries (Pty) Ltd v Hobbs and Another 1960 (4) SA 237 (N): referred to

Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A): referred to

Candid Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd 1992 (2) SA 459 (C): dictum at 464 applied D

Chapmans Peak Hotel (Pty) Ltd and Another v Jab and Annalene Restaurants CC t/a O'Hagans [2001] 4 All SA 415 (C): dictum in para [23] applied

City of Cape Town v Rudolph and Others 2004 (5) SA 39 (C) (2003 (11) BCLR 1236): dictum at 72G - I (SA) applied

De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D): dictum at 192 applied E

Du Toit v De Bot; Du Toit v Zuidmeer 2 SC 213 (1883): referred to

Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 (2) SA 54 (C): referred to

Gifford v Hare (1897) 14 SC 244: referred to

Graham v Dittmann & Son 1917 TPD 288: compared

Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A): referred to F

Holland v Scott 2 EDC 307: compared

Howard Farrar, Robinson & Co Ltd v East London Municipality (1908) EDC 149: applied

Huisamen and Others v Port Elizabeth Municipality 1998 (1) SA 477 (E) ([1997] 2 All SA 672): applied

Jecks & Co v O'Meara & Co 1904 TH 284: G referred to

Kemp, Sacs and Nell Real Estate (Edms) Bpk v Soll en 'n Ander 1986 (1) SA 673 (O): dictum at 689 applied

Knop v Johannesburg City Council 1995 (2) SA 1 (A): referred to

Lovius and Shtein v Sussman 1947 (2) SA 241 (O): referred to

Moskeeplein (Edms) Bpk en 'n Ander v Die Vereeniging van Advokate (TPA) en Andere 1983 (3) SA 896 (T): dictum at 900H - 901A applied H

Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others 2004 (2) SA 81 (SE): discussed

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): referred to

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1): dictum in paras [32] - [35] applied I

Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T): referred to

Patz v Greene & Co 1907 TS 427: applied

Potgieter and Another v Van der Merwe 1949 (1) SA 361 (A): referred to

Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) ([2003] 2 All SA 465): referred to

Prinsloo v Shaw 1938 AD 570: compared J

2007 (2) SA p51

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): dictum at 106 applied A

Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 87: dictum at 95 - 6 applied

Setlogelo v Setlogelo 1914 AD 221: referred to

Transvaal Property and Investment Co Ltd; Reinhold & Co v SA Townships Mining and Finance Corp Ltd and the Administrator 1938 TPD 512: discussed B

United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T): discussed

Van Reenen v Kruger 1949 (4) SA 27 (W): referred to

Voortrekker Pers Beperk v Rautenbach 1947 (2) SA 47 (A): dictum at 50 applied C

Wynberg Municipality v Dreyer 1920 AD 439: dictum at 447 applied.

Foreign cases

Attorney-General v Corporation of Manchester [1893] 2 Ch 87: referred to

Campbelltown Golf Club Ltd v Winton and Another [1998] NSWSC 257: referred to. D

Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd and Another [2000] VSC 214: referred to

Douglas Lake Cattle Co v Mount Paul Golf 2001 BCSC 566: referred to

Hunter and Others v Canary Wharf Ltd; Hunter and Others v London Docklands Development Corp [1997] AC 655 E ([1997] 2 WLR 684; [1997] 2 All ER 426 (HL)): referred to

Miller v Jackson [1977] QB 966 (CA) ([1977] 3 All ER 338...