Wingaardt and Others v Grobler and Another

JurisdictionSouth Africa
Citation2010 (6) SA 148 (ECG)

Wingaardt and Others v Grobler and Another
2010 (6) SA 148 (ECG)

2010 (6) SA p148


Citation

2010 (6) SA 148 (ECG)

Case No

57/2009

Court

Eastern Cape High Court, Grahamstown

Judge

Alkema J and Jones J

Heard

December 11, 2009

Judgment

April 20, 2010

Counsel

T Zietsman for the appellants.
J Nepgen for the respondents.

Flynote : Sleutelwoorde B

Nuisance — What constitutes — Christmas lights at home in residential area — Lights attracting sightseers who create noise — Lights not constituting nuisance.

Headnote : Kopnota

C Displaying Christmas lights at a home in a residential area, from 19h00 to 23h00, from 14 December to the end of the first week of January, where this attracts sightseers who create a noise, will not constitute a nuisance. (Paragraphs [28], [34], [95], [96] and [97] at 153H - 154A, 154H - 155A, 165C - D, 165G.)

Cases Considered

Annotations D

Reported cases

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A): referred to

Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N): referred to

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) ([1999] 4 All SA 421): E referred to

Bophuthatswana Transport Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk 1996 (2) SA 166 (A): referred to

Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) ([2000] 3 All SA 171): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) F 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): referred to

Clarke v Hurst NO and Others 1992 (4) SA 630 (D): referred to

Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W): referred to

De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D): referred to

Dorland and Another v Smits 2002 (5) SA 374 (C): referred to G

Gien v Gien 1979 (2) SA 1113 (T): referred to

Holland v Scott (1882) 307 (EDC): referred to

James Brown & Hamer (Pty) Ltd (Previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A): referred to

Laskey and Another v Showzone CC and Others [2007] 4 All SA 1162 (C): H referred to

Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): referred to

Milne NO v Fabric House (Pty) Ltd 1957 (3) SA 63 (N): referred to

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616): I referred to

Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): referred to

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

2010 (6) SA p149

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): applied A

Rand Waterraad v Bothma en 'n Ander 1997 (3) SA 120 (O): referred to

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): referred to

Schultz v Butt 1986 (3) SA 667 (A): referred to

SM Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd and Another 2000 (4) SA 1019 (SCA) ([2000] 4 All SA 407): referred to B

South Peninsula Municipality v Evans and Others 2001 (1) SA 271 (C): referred to

Tiffin v Woods NO and Others [2007] 3 All SA 454 (C): referred to

Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T): referred to

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust as Amicus Curiae) C 2003 (1) SA 389 (SCA) ([2002] 4 All SA 346): referred to

Van Zyl and Others v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA): dictum in para [46] applied

Vogel v Crewe and Another [2004] 1 All SA 587 (T): referred to. D

Unreported cases

Van Eck and Others v Clyde Brickfields (Pty) Ltd and Others (TPD case No 6020/2002, 7 April 2006): referred to

Waterhouse Properties CC and Others v Hyperception Properties 572 CC and Others (OFS case No 4245/04, 28 October 2004): referred to. E

Case Information

Appeal from a decision in a magistrates' court. The facts appear from the judgment of Alkema J.

T Zietsman for the appellants.

J Nepgen for the respondents.

Cur adv vult. F

Postea (April 20).

Judgment

Alkema J: G

[1] The issue in this appeal concerns the question whether or not the switching-on of Christmas lighting in and outside her house in Jeffreys Bay by the respondent constitutes a nuisance or disturbance of the appellants' right to free and undisturbed use and possession of their property. The appellants sought a final interdict in the Humansdorp magistrates' court for an order prohibiting the respondents from switching H on any Christmas lights at their home during the festive season, which order was refused by the court a quo. The appellants come on appeal to this court against such refusal.

[2] The appellants chose to proceed by way of application and not by way of action. Neither party applied for leave to refer the factual disputes I to oral evidence, and both were content with the court making factual findings on the papers.

[3] It is now trite that, in an application for a final interdict on papers without resorting to oral evidence, the facts as stated by the respondent, together with the admitted facts in the applicant's affidavit, constitute the J

2010 (6) SA p150

Alkema J

A facts upon which the application is to be adjudicated; subject to the two qualifications that, firstly, a mere denial by the respondent of a fact alleged by the applicant may in certain circumstances not raise a real, genuine or bona fide dispute of fact; and, secondly, where the denials or allegations of the respondent are 'so far-fetched or clearly untenable that B the court is justified in rejecting them merely on the papers'. See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C.

[4] It is necessary to refer briefly to the parties. The application papers refer to three applicants (now appellants) and two respondents, who are C also the respondents on appeal. The respondents are husband and wife. They live at 3 Nell van der Poll Street, Jeffreys Bay. That is the address from which the alleged nuisance emanated. The first respondent is the signatory to the main opposing affidavit. Her husband gave notice of intention to oppose, but he did not make an opposing affidavit because he was away at sea as a commercial fisherman when the application was D launched. The first respondent is the de facto respondent. A reference in this judgment to the respondent in the singular should be understood to refer to her, unless the context shows otherwise.

[5] The first appellant/applicant resides with her husband (who is not a E party) at 5 AD Keet Road, Jeffreys Bay, which is diagonally across the road from the respondents' home. The second and third applicants are husband and wife. They live next door to the respondents. The protagonists in this litigation are the first appellant and the first respondent. For reasons which are given below, I shall refer in this judgment to the first appellant as the appellant.

F [6] Before dealing with the facts, there are two features of a procedural nature which call for comment.

[7] First, the founding affidavits of both the second and third applicants (now appellants) are not attested.

G [8] An affidavit is a written statement sworn to before a commissioner of oaths. An oath is administered in terms of the regulations made in terms of s 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. In terms of rule 6(1) of the rules of this court, a notice of motion must be supported 'by an affidavit as to the facts upon which the applicant relies for relief'. As such, an affidavit constitutes the factual H evidence before a court, upon which the matter is to be adjudicated. See Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA) at 200D. The same principle applies in the magistrates' court. See Jones & Buckle Civil Practice of the Magistrates' Courts in South Africa 9 ed vol 2 at 55-12A. It follows that, I if there is no affidavit before a court in application proceedings in support of the relief claimed, there is no evidence upon which the relief can be granted.

[9] It is trite that in certain circumstances a court has the discretion to condone strict compliance with the regulations prescribing the administration J of oaths, but, where no oath was administered, there is no

2010 (6) SA p151

Alkema J

evidence before the court and the unattested statement is pro non scripto, A and incapable of condonation. The second and third appellants are accordingly not before this court, and they were also not before the court a quo.

[10] Second, and by consent between the parties, the court a quo on B 26 March 2008 made an order admitting further supplementary (aanvullende) affidavits from the first and second appellants (as applicants). This resulted in a further set of answering and replying affidavits from the respondents and appellants, respectively.

[11] The application for the filing of a further set of affidavits was C motivated by the appellants on the strength of the happening of certain events after 12 December 2007, which were said to be of material interest (wesenlike belang) to the hearing of the application. It is of some import to note that the further set of affidavits filed by the first and second appellants was not intended to supplement or substitute the D original founding affidavits - the parties expressly agreed not to term the further affidavits as 'founding...

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3 practice notes
  • Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and Another
    • South Africa
    • Invalid date
    ...v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA): referred to Wingaardt and Others v Grobler and Another 2010 (6) SA 148 (ECG): H referred to. Australia Mann v Carnell (1999) 201 CLR 1: referred to Osland v Secretary to the Department of Justice (2008) 234 CLR 2......
  • Biggs v Cousins
    • South Africa
    • Labour Court
    • 15 July 2014
    ...as a whole. (See Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 307G-H) See also Wingaardt v Grobler 2010 (6) SA 148 (ECG). [9] In my view, had the outcome of this case been against the respondents I would have made an order of costs against the applicants rel......
  • Mwelase v the Minister of Social Development
    • South Africa
    • Eastern Cape Division
    • 22 March 2018
    ...affidavits and upon those who inflate them.' See also Van Zyl v Govt of the RSA 2008 (3) SA 294 (SCA) para.46.; Wingaardt v Grobler 2010 (6) SA 148 (ECG) para. ...
3 cases
  • Venmop 275 (Pty) Ltd and Another v Cleverlad Projects (Pty) Ltd and Another
    • South Africa
    • Invalid date
    ...v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA): referred to Wingaardt and Others v Grobler and Another 2010 (6) SA 148 (ECG): H referred to. Australia Mann v Carnell (1999) 201 CLR 1: referred to Osland v Secretary to the Department of Justice (2008) 234 CLR 2......
  • Biggs v Cousins
    • South Africa
    • Labour Court
    • 15 July 2014
    ...as a whole. (See Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 307G-H) See also Wingaardt v Grobler 2010 (6) SA 148 (ECG). [9] In my view, had the outcome of this case been against the respondents I would have made an order of costs against the applicants rel......
  • Mwelase v the Minister of Social Development
    • South Africa
    • Eastern Cape Division
    • 22 March 2018
    ...affidavits and upon those who inflate them.' See also Van Zyl v Govt of the RSA 2008 (3) SA 294 (SCA) para.46.; Wingaardt v Grobler 2010 (6) SA 148 (ECG) para. ...

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