Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others

• Jurisdiction: South Africa
• Judge: Plasket AJ
• Judgment Date: 21 February 2003
• Citation: 2004 (2) SA 81 (SE)
• Docket Number: 3263/02
• Hearing Date: 30 January 2003
• Counsel: G Goosen for the first applicant. C J Mouton SC for the second, third, fourth and fifth applicants and for the fourth respondent. A Beyleveld for the first and second respondents. No appearance for the third respondent.
• Court: South Eastern Cape Local Division

Plasket AJ: A

[A] Parties, facts and issues

[1] The first applicant brought an urgent application against the first, second and third respondents in which it sought to interdict them from carrying on their business, a restaurant and bar known as the Crazy Zebra, to the extent that this business was conducted in contravention of zoning conditions and to the extent that B it caused a nuisance, whether in terms of the common law or noise control regulations. The first applicant is the organ of local government that has jurisdiction in respect of the suburb of Walmer, Port Elizabeth, the area where the Crazy Zebra is situated. The first respondent is the close corporation through which the Crazy Zebra C is operated. The second respondent is a member of the first respondent. So is the third respondent, although he has had nothing to do with these proceedings. No relief or costs order is sought against the third respondent.

[2] Although the first applicant cited the fourth respondent as a respondent because of its interest in the matter, it seeks no D relief against the fourth respondent. Indeed, the fourth respondent has made common cause with the first applicant. At a later stage in the proceedings, the second, third, fourth and fifth applicants sought leave to intervene in the proceedings. They reside in the vicinity of the Crazy Zebra. They also appear to be the driving E force behind the fourth respondent. When they applied to be joined as applicants, they also applied for certain amendments to the notice of motion.

[3] A number of issues require resolution. On 30 January 2003 when the matter was heard, I granted the application brought by the second, third, fourth and fifth applicants to intervene as F applicants and for the amendment of the notice of motion and I dismissed an application brought by the first applicant for a postponement. I gave no reasons at the time and will do so below. In the main application, there are three preliminary points taken by the first and second respondents (whom I shall refer to, from now on, G simply as the respondents): first, they argued that the matter was not urgent and, to the extent that it was, the first applicant failed to attempt to comply with the rules to the extent possible; secondly, they took the point that the deponent to the founding affidavit did not have the necessary authority to act on behalf of the first applicant; and, thirdly, they challenged the standing of the fourth H respondent. When these issues have been dealt with, I shall turn to the merits, to whether any order I make may or should be suspended for a period and to the question of costs.

[B] Intervention, amendment and postponement I

(a) The application to intervene

[4] The applicants in the application to intervene claim a direct interest in the matter based on the fact that, in the words of Mr Maasdorp, 'my family and I are seriously and continuously detrimentally affected by the unlawful activities of the first and second respondents' and that, as J

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'residents directly affected by the unlawful conduct of the respondents, I and the other intervening co-applicants therefore have the right to appear in these proceedings and to endeavour to safeguard our fundamental right to peaceful and undisturbed habitation in our residential suburb'.Affidavit of Maasdorp, para 4.1 (p 215 - 216). 1

[5] In addition, Mr Maasdorp states that he and his co-applicants grew alarmed when the first applicant's application appeared to be in danger of being dismissed because, when challenged by B the respondents, it could not establish the authority of the deponent to the founding application, resulting in two postponements at the first applicant's cost. As a result of this, the operation of the interim interdict that had initially been granted was suspended. [2] The consequence of this problem was stated as follows by Mr Maasdorp: [3] C

'This meant that the unlawful conduct of the respondents, and particularly the unbearable noise nuisance (but also including extensive parking problems, traffic congestion, taunting of residents, public urination and all other adverse effects flowing from having a busy pub and restaurant in the middle of a residential suburb) continued unabated since then. It is not the municipality that is bearing the brunt of the unlawful activities and nuisance created by D the respondents, it is the residents [4] that are suffering. I regret to say that the other affected residents and I have lost confidence and trust in the ability (and perhaps even the resolve) of the municipality to get its papers in order and to proceed to obtain timeous final relief against the respondents which would at last bring peace and tranquillity to our lives.' E

[6] This point was reinforced, in the submission of Mr Mouton SC, who appeared for the intervening applicants, when the first applicant indicated that it would seek a postponement of the matter for a month.

[7] The respondents opposed the application. In his affidavit, the second respondent takes issue with the allegation F that the Crazy Zebra is being operated in an unlawful manner, that it creates a nuisance, that there are parking and other problems as Mr Maasdorp alleges and that, in effect, since the intervening applicants chose to allow the first applicant to litigate in their interest as it were, they should not now be allowed to change horses in G mid-stream. [5]

[8] In my view, the denial of unlawful conduct on the part of the respondents is no bar to the application to intervene. In much the same way as the issue of standing is a preliminary issue in which the merits are assumed in favour of the applicant, [6] in an application to intervene the H question is whether, on the applicant's version, he or she is, in the words

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of Rule 12, 'entitled to join as a plaintiff'. [7] A

[9] In order to satisfy this requirement, an applicant must furnish prima facie proof of his or her interest (and hence his or her right to intervene) but he or she need not go further to satisfy the Court that he or she will succeed in the end of the day; and an applicant must satisfy the Court too that his or her application is made seriously and is not frivolous. [8] In B addition, when, as in this matter, the applicants base their claim to intervene on a direct and substantial interest in the subject-matter of the dispute, the Court has no discretion: it must allow them to intervene because it should not proceed in the absence of parties having such legally recognised interests. [9] C

[10] It is clear that, on the basis of the allegations made by Mr Maasdorp that I have quoted above, he and his co-applicants have established that they have a direct and substantial interest in the subject-matter of the dispute, that their application is a serious one and is not frivolous and that the allegations made by them make out a prima facie case. They are entitled to join these D proceedings as applicants.

(b) The amendments

[11] Mr Mouton brought an application for the amendment of the notice of motion in certain respects. Most of the amendments were directed at formally bringing the notice of motion into line with the intervention of the four applicants represented by him. E

[12] He also applied for one amendment of the notice of motion that has substantive consequences. That was the addition of a prayer for a declarator that 'on a proper interpretation of zoning condition (xiv) applicable to erf 1883, Walmer, the amplified music that may be played in the outside alfresco dining area on Friday and Saturday F evenings until 22:30, may not cause any common-law nuisance' and an alternative prayer 'amending the said condition to the extent that any music that may be played in the outside alfresco area on Friday and Saturday evenings until 22:30 on the said erf, may not cause any common-law nuisance'. G

[13] Neither Mr Goosen for the first applicant nor Mr Beyleveld for the respondents opposed the amendments, which were duly granted. I granted a further amendment to the notice of motion on the application of Mr Goosen. It was the amendment of prayer 2.5 of the notice of H

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motion to include a prayer for costs not only against the first respondent but also against the second A respondent.

(c) The application for the postponement

[14] Mr Goosen applied for the matter to be postponed for a month. In support of his application, he handed up a letter from the municipal manager, Mr M L Mangcotywa, addressed to the first B applicant's attorneys and dated 30 January 2003. It stated:

'My instructions to you are that you apply for a postponement of this matter for one month to enable the Municipality to make certain that they have fully engaged with the Crazy Zebra with a view to settling the matter.

You have authority to tender the wasted costs of the postponement of all parties on a party and party scale.' C

[15] Mr Beyleveld did not oppose the application and, indeed, supported it. His argument was one that probably holds true as a general proposition: that it is better to talk and attempt to settle, rather than to 'slug it out in court' as he put it. D

[16] Mr Mouton opposed the application vigorously. He argued, firstly, that this case involves the ongoing infringement of the rights of his clients and, secondly, that the conduct complained of is not merely unlawful but also constitutes criminal conduct: a postponement would mean that this criminal conduct would proceed unchecked for the month during which an attempt is made to settle. He E argued, thirdly, that to grant a postponement would amount to allowing the first applicant to abrogate its statutory and constitutional duties to residents. Fourthly, he argued that the prejudice suffered by his clients in the...