SA Motor Racing Co Ltd and Others v Peri-Urban Areas Health Board and Another

• Jurisdiction: South Africa
• Judge: Bresler J
• Judgment Date: 02 December 1954
• Court: Transvaal Provincial Division
• Citation: 1955 (1) SA 334 (T)

Bresler, J.:

In these interdict proceedings there are three applicants, B namely the South African Motor Racing Company Limited, Raymond Steyn, a chartered accountant, and the latter's wife, Muriel Margaret Steyn to whom he is married out of community of property with the marital power excluded. There are two respondents, namely first respondent, the Peri-Urban Areas Health Board, Pretoria, and second respondent, Drive-in C Theatres (Pty.) Ltd. Some fifteen years ago the first applicant abandoned its racing ventures and the land it so held was proclaimed as Kelvin Township and it says that it is vitally interested in anything which may affect the value of its land detrimentally. First and second applicants own a large block of land in the township of Kelvin and second and third applicants have erected a large and attractive home on D their ground. It is stated that this township of Kelvin was laid out and constituted as a residential township and that it enjoys a pleasant rural atmosphere.

Immediately to the south of Kelvin lies certain land described as 'portion 202 and the remaining extent of portion 'D' of portion of the E farm Zandfontein No. 1' and on this the second respondent has erected the Drive-In Theatre referred to. The property is east of and contiguous to the Main Road between Johannesburg and Pretoria. The properties owned by second and third applicants are those in the Township nearest to this Theatre and they say that the manner in which it is conducted by second respondent has caused a nuisance not merely to them but has affected F other lots in Kelvin detrimentally. The whole area surrounding Kelvin is said to be free from business activities save for the Drive-In Theatre. The business activities referred to are said to be some miles distant.

Some years ago, the petition continues, first respondent proceeded to G prepare a Town Planning Scheme which embraced the Township of Kelvin and the property now occupied by second respondent. Kelvin was zoned for residential purposes as was the land occupied by second respondent but first respondent allowed second respondent to conduct a cinema business thereon. Applicants say too that this right would not entitle second respondent to provide patrons with what is termed 'a restaurant business'.

H The petitioners state that during June, 1951, they heard that an application was being made by second respondent for permission to conduct a Drive-In Cinema on their property whereupon they caused a letter to be written by their attorneys objecting to the requisite licence. This was on the 12th June, 1951. In this letter it is pointed out, inter

Bresler J

alia, that the necessary advertisement had not come to their notice and the Board was urged to consider a number of objections some eight in number. In conclusion first respondent is requested to set its face against a policy of commercialisation and industrialisation and to inspect the area; first respondent is also invited to hear the views of A residents, and permit any other interested parties to lodge objections if they wish to do so. The first respondent replied on the 13th July, 1951, pointing out that although these objections were received out of time they were, however, brought to the notice of the Board on the 15th June, 1951. Petitioners were also informed in this letter that the B application had been granted subject to a number of conditions. Then on the 30th July, 1951, petitioners' attorneys replied in a letter in which it is pointed out inter alia that interested persons could not have been expected to see the notice of the pending application. Finally the petitioners say that they reserve certain rights including the right to object to the grant of permission for the establishment of the 'Open C Air Cinema'. The next correspondence referred to in the papers is dated the 3rd February, 1953, in which reference is made to the letter of the 15th June, 1951, and its contents. It is further pointed out that in the meantime the cinema had been established and that the licence or authority for licence fell due for renewal on the 23rd February, 1953. D In this connection the attorneys say that they have been instructed to note 'strenuous' objection to the renewal of that licence; the project is alleged to have become a nuisance as was only to be expected and it may be convenient to refer to the letter in detail to indicate the burden of the complaints and comments on what were regarded as undesirable developments. The letter is lengthy but reference to it is, E I think, essential.

This long letter sets out the objections raised by the petitioners, the conditions imposed by the Board and the petitioners' complaints about the existing state of affairs. It becomes necessary to refer to it as briefly as possible and it is to the effect that:

(a)

The project is not adequately screened. The cinema screen is 70 F to 60 feet high and the split pole fence is not the required 8 feet high; the screen moreover constitutes an unsightly landmark visible for miles around. Persons in motor cars are said to congregate outside the fence in order to obtain a free view of the entertainment and on these occasions natives also gather near the home of second and third applicants.

(b)

The large accumulation of vehicles which occurs outside the cinema causes traffic congestion there every night at about 7 G p.m. and 9 p.m., a situation which is aggravated on a Saturday night. On one occasion it is said that second applicant was held up for more than half an hour by five rows of cars abreast on the west side of the road whilst the east side was completely taken up by cars leaving after the first of the two evening sessions of the Drive-In Theatre. The road being an important and arterial one should not be subjected to such congestion which creates a further nuisance in the shape of noise and dust. (First and second applicants have to turn in from the main road to get to their property.)

(c)

Refreshments of all types are sold during the show whereby the second respondents are carrying on a business other than that of H a strictly Drive-In Cinema.

(d)

During the change over between the first and second evening sessions the whole district is treated to blaring broadcasts of music which are repeated when the performance ends continuing until all the cars have left. This music blends with the hooting of cars to create an objectionable disturbance whereby those who have gone to sleep are disturbed and awakened.

Bresler J

More detail is supplied in the petition itself, in which reference is made to broadcast testing during the day time. Reference is also made to the congestion caused by those patrons who cannot gain admission and then have to turn back. Para. 36 of the petition elaborates the position further as follows:

A 'From about 8.15 p.m. onwards the patrons for the second show proceed to arrive. If the show is a popular one, they tend to come rather early and an enormous number of vehicles proceeds to accumulate on the Main Road, in the vicinity of the cinema. After this has taken place for some time, patrons for the first show commence to come out. The Cinema fills fairly rapidly with the patrons for the second show. After the Cinema is full, patrons for the second show continue to arrive, are unable to gain admission and have to turn their motor cars around to return to their point of origin. The confusion and congestion of traffic which occurs is B well nigh incredible and normal lawful users of this main road are quite unable to make use of it.'

Complaints are also made that the lights of the cars render the road unsafe at night and that on some occasions the din caused by the hooting of cars is deafening. Objection is also taken against the effect on the surrounding country of illuminated search lights at night as well as C against the erection of screen hoardings in contravention of the Roads and Ribbon Development Act, 21 of 1940.

I think I should point out at this stage that Mr. Rathouse on behalf of the applicants indicated that he was only asking for temporary relief and that he did not consider it necessary to rely on features other than D those connected with noise and traffic obstruction in order to make out a case against second respondents of having created a nuisance.

As far as the case against second respondent is concerned the petition concludes by charging it with having contravened the conditions imposed by first respondent and with having conducted its entertainment unlawfully in a number of respects.

E An inspection in loco was held on the first of the six days that the argument lasted and a general view of the Drive-In Theatre and the vicinity was obtained.

Before dealing with the affidavits Mr. Rathouse referred to the difference between our law and that of England namely that it was not F necessary according to our decisions for an applicant to...