Prinsloo v Shaw

• Jurisdiction: South Africa
• Judge: Stratford CJ, De Wet JA, Watermeyer JA and Tindall JA
• Judgment Date: 27 September 1938
• Citation: 1938 AD 570
• Hearing Date: 16 September 1938
• Court: Appellate Division

De Wet, J.A.:

The respondent, Shaw (hereinafter referred to as the applicant) made an application, upon notice of motion, to the Eastern Districts Local Division for an order restraining or interdicting Prinsloo Thereinafter referred to as the respondent) from causing or committing a nuisance on his property or from allowing or permitting other persons to cause or commit a nuisance on such property by conducting or holding religious or other services or exercises accompanied by very loud and strident singing and yelling, singing in a monotonous whine and chant, frenzied praying, stamping of feet, clapping of hands, groaning, all in such a manner that applicant and his family are seriously incommoded, disturbed, disquieted and interfered with, their comfort seriously diminished and the value of applicant's property diminished. In the supporting petition the applicant applied in the alternative for a temporary interdict pending action.

A considerable number of affidavits were filed on behalf of both

De Wet, J.A.

the applicant and the respondent and after argument the learned Judge granted an order interdicting the respondent from allowing hand clapping, or stamping with the feet or other undue noise, such at.; to incommode and disturb the household of the applicant, to take place at religious services conducted or permitted to be conducted by him upon his property and ordered the respondent to pay the costs of the application.

From this decision an appeal was brought to the Cape Provincial Division. That Court dismissed the appeal with costs but directed the order to be amended so as to read that the respondent be interdicted from conducting or allowing to be conducted on his property religious services at such times and in such manner as to constitute a nuisance to the inmates of applicant's property. By special leave the present appeal is brought against that decision.

At the outset of the argument Mr. Malan (who had not appeared in the Court of first instance) stated that he understood that, in terms of the Rules of Court, application had been made to have the evidence of the witnesses for applicant heard viva voce. The relevant Rule is as follows: -

"6 (i) All applications to Court shall be brought by way of petition or notice of motion which shall be supported by affidavits of the facts or circumstances upon which the same are made: Provided that the Court may, on the application of any party, order the attendance for cross-examination of any person making such affidavit.

"6 (ii) When in any proceedings on motion there is a conflict of evidence and the matter cannot be decided without the hearing of oral evidence, the Court in its discretion may order such oral evidence as the parties may desire to produce to be heard forthwith or at such later date as the Court may fix...."

As there was nothing on the record to show that any such application had been made, the Registrar was directed to communicate with the Registrar of the...