Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others

• Jurisdiction: South Africa

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

2004 (2) SA p81

Citation	2004 (2) SA 81 (SE)
Case No	3263/02
Court	South Eastern Cape Local Division
Judge	Plasket AJ
Heard	January 30, 2003
Judgment	February 21, 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.

Flynote : Sleutelwoorde B

Nuisance — Abatement of — Excessive noise — Respondents interdicted from continuing to cause noise nuisance by playing music at unacceptably high levels at its restaurant and bar in contravention of relevant zoning regulations. C

Practice — Applications and motions — Founding affidavit — Authority of deponent — Whether resolution or written authorisation of deponent by first applicant required — First applicant being metropolitan municipality and deponent being employee of first applicant — Deponent alleging in affidavit that he was D duly authorised to depose to affidavit on behalf of first applicant — Discretion to institute proceedings on behalf of first applicant in hands of municipal manager — Municipal manager having exercised such discretion by taking decision to institute proceedings — Deponent to founding affidavit simply giving effect to that decision — Resolution or written authorisation not required. E

Practice — Parties — Joinder — Requirements for intervention in terms of Rule 12 of Uniform Rules of Court restated.

Practice — Applications and motions — Postponement of — Factors to be taken into account restated.

Practice — Applications and motions — Urgent application — Self-created urgency — Whether protracted dealings between parties prior to launch of application constituting self-created F urgency — Applicant first seeking compliance from respondents and only then approaching Court for relief — Applicant thus not dilatory in bringing application — Urgency not self-created.

Practice — Applications and motions — Urgent application — Non-compliance with Rule 6(5)(a) of Uniform Rules of Court — Applicant's notice of G motion deviating from Form 2(a) of Schedule 1 to Rules by failing to stipulate time periods for filing of notices and papers, suitably abridged in accordance with urgency of matter — Matter sufficiently urgent to justify applicant's form of notice of motion.

Voluntary association — Action by and against — Locus standi thereof — Association of H ratepayers — Constitution making provision for voluntary association — Association having separate legal personality and thus constituting universitas capable of suing and being sued in its own name — Moreover, Rule 14(2) of Uniform Rules of Court entitling association, as unincorporated body, to sue and be sued in its own name. I

Headnote : Kopnota

The first applicant brought an urgent application to interdict the first, second and third respondents from continuing to carry on their business, the CZ restaurant and bar, from erven 1882 and 1883 W suburb. In respect of erf 1882 the applicants alleged that the respondents were breaching the applicable zoning conditions. In respect of erf 1883 they alleged that by J

2004 (2) SA p82

causing loud music to be played from the erf, the respondents were contravening the Noise A Control Regulations (made under the Environmental Conservation Act 73 of 1989) and were causing a nuisance at common law. The respondents contended that a zoning condition that authorised them to play amplified music in the outside dining area of the CZ on Fridays and Saturdays until 22:30, in effect, authorised them to cause a nuisance. An appeal was pending in respect of the rezoning of erf 1882 from B residential to business use. No appeal was pending in respect of the amendments that had been introduced to the zoning conditions applicable to erf 1883. The amendment relevant to the present proceedings was the one that authorised the respondents to play amplified music on Friday and Saturday evenings. By the time of the hearing of the matter the applicants' interim interdict against the respondents had been suspended. The first respondent was the close corporation through C which the CZ was operated. The second respondent was a member of the first respondent. The fourth respondent had made common cause with the first applicant. The second, third, fourth and fifth applicants resided in the vicinity of the CZ and applied for and been granted leave to be joined as applicants on the basis that the allegedly unlawful conduct of the first and second respondents breached their right to peaceful and undisturbed habitation in W suburb. They had also applied for certain amendments to the notice of D motion. The first applicant also applied for a month-long postponement of the matter. When the matter was heard on 30 January 2003, the Court granted the applications for leave to intervene and for the amendment of the notice of motion, but denied the application for a postponement. No reasons were given at the time. In the main E application the first and second respondents took the following preliminary points: (1) that the application was not urgent in that, given the protracted dealings between the parties prior to the applicants' launching the application, the alleged urgency was self-created; (2) that the notice of motion was not in compliance with Form 2(a) of Schedule 1 to the Uniform Rules of Court because it failed to stipulate time periods for the filing of notices F and papers, suitably abridged in accordance with the urgency of the matter, which non-compliance was fatal to the application; (3) that Mr W, the senior estates manager of the first applicant, had not been duly authorised to bring the application or to depose to the applicants' founding affidavit as no resolution or written authorisation to that effect had formed part of the papers; (4) that the fourth respondent had no standing because it did not exist in law and G because there was no necessity to have joined either the fourth respondent or its constituent members in the proceedings; and (5) that the Court's order ought to have been suspended pending determination of the appeal in respect of erf 1882. After deciding these issues the Court proceeded to pronounce on the merits of the case. H

Held, as to the application to intervene, that the question was whether the second to fifth applicants were, on their version, entitled to join in the proceedings as intended in Rule 12 of the Uniform Rules of Court. To satisfy this requirement they had to furnish prima facie proof of their interest (but not that they would succeed at the end of the day) and that the application was seriously made and not frivolous. If the application was based on a direct and I substantial interest in the subject-matter of the dispute, the Court had no discretion to refuse the application. Since the second to fifth applicants satisfied all these conditions, they were entitled to join the proceedings. (Paragraphs [8] - [10] at 88H - 89D.)

Held, further, as to the application for postponement, that the following things had to be considered: the reason for the postponement, the prejudice to the J

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parties if it were granted or refused, and whether a costs order might cure the prejudice that a A party might suffer through the granting of the postponement. (Paragraph [17] at 90F/G - G.)

Held, further, that in the present case the application had to be refused because: (1) the reason given for the postponement, namely to enable the first applicant to ascertain whether a settlement was an option, was not a good one because a settlement was very unlikely; and (2) the second to fifth applicants would be prejudiced by B a postponement because they would have to bear the inconvenience resulting from the continued operation of the CZ. (Paragraphs [18] - [21] at 90H/I - 91G.)

Held, as to urgency, that the first applicant had approached its statutory duty of safeguarding the rights and interests of rate-payers in a responsible manner by seeking to persuade the respondents to comply and only then approaching the Court for C relief. It could therefore not be said that the first applicant had been dilatory in bringing the application and there was consequently no merit in this point. (Paragraph [34] at 94C/D - E/F.)

Held, further, as to the applicant's deviation from Form 2(a) of Schedule 1 to the Rules, that it was trite that applicants in urgent applications were required to give proper consideration to the degree of urgency and tailor the notice of motion D to that degree of urgency. The Courts were endowed with a judicial discretion to allow deviations from the procedures stipulated in the Rules and it was clear that the respondents' argument was based on an unacceptable degree of inflexible formalism. In the circumstances, the matter was of sufficient urgency to justify the first applicant's approaching the court on the notice provided for in the notice of motion. Accordingly, the challenge to the urgency of the application E had to fail. (Paragraphs [37], [40] and [41] at 95A - B, F - G and 96D - F/G.)

Held, further, as to authority, that the respondents' argument lost sight of the distinction between the taking of the decision to litigate, on the one hand, and the putting into effect of that decision, on the other. The former was a discretionary decision. By resolution of the erstwhile Port Elizabeth Municipality, this F decision had been placed in the hands of the municipal manager, who was entitled to institute proceedings to enforce the town planning scheme of the first applicant if he formed the opinion that 'immediate action [was] required'. This discretionary decision-making power...