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IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case No. 3263/02

In the matter between:

NELSON MANDELA METROPOLITAN MUNICIPALITY First Applicant

MARTIN ISAAC MAASDORP Second Applicant

HAROLD CHARLES LOVEMORE Third Applicant

THOMAS EDWIN ELLIS Fourth Applicant

GIDEON JOHANNES ROSSOUW Fifth Applicant

and

GREYVENOUW CC First Respondent

CHARLES MELVILLE Second Respondent

FRED HUME Third Respondent

VICTORIA PARK RATEPAYERS ASSOCIATION Fourth Respondent

_____________________________________________________________________________________JUDGMENT_____________________________

PLASKET AJ:

[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 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 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 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 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 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, 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 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

(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 ‘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’.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 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

‘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 the respondents, it is the residents⁴ 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.’

[6] This point was re-enforced, 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 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 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 question is whether, on the applicant’s version, he or she is, in the words of rule 12, ‘entitled to join as a plaintiff’.⁷

[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 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

[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 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.

[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 evenings until 22h30, 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 22h30 on the said erf, may not cause any common law nuisance’.

[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 motion to include a prayer for costs not only against the first respondent but also against the second 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 ML Mangcotywa, addressed to the first 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.’

[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.

[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 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 month that settlement would be explored is not the type of prejudice that can be cured by a costs order.

[17] In determining whether to grant the application or not, I must consider the reason for the postponement applied for, the prejudice to the parties if it is granted or refused and whether a costs order can cure the prejudice that a party may suffer through the granting of the postponement.¹⁰

[18] In this case the reason for the postponement is to enable the first applicant to ‘make certain that they have fully engaged with the Crazy Zebra with a view to settling the matter’. While settlement efforts should invariably be encouraged, I note that in this instance the municipal manager stops short of saying that settlement negotiations will be engaged in. Something less tangible and less definitive than that appears to be envisaged. It appears to me that the first applicant wants time to ascertain whether settlement may be an option. There certainly is no suggestion from the letter that settlement is likely.

[19] The reason given by the first applicant for wanting a postponement must also be viewed in the light of various other factors. First, the launching of the urgent application by the first applicant was preceded by exchanges of letters and a meeting. These dealings were fairly protracted. They were unable even to produce an undertaking from the respondents. There is no indication that anything has changed from then. Secondly, the matter is ripe for hearing and a great deal of time and effort has been expended by all the parties – including the first applicant – to ensure that the matter could be argued on 30 January 2003. Thirdly, there have already been a number of postponements. On two occasions, the postponements were requested by the first applicant and it tendered the costs of all of the other parties. It does not appear that efforts were made in the time afforded by these postponements to explore the options that the first applicant now wants to explore. It appears to me, therefore, that the reason why the first applicant seeks a postponement is not a good one and, if it would have been prejudiced by proceeding, it has not placed any information in relation thereto before me or even alleged such prejudice.

[20] The second issue I turn to is whether the other parties would be prejudiced by the postponement. There is no indication that the respondents will be but the same is not true of the second, third, fourth and fifth applicants. They, as Mr Mouton pointed out, will bear the brunt of the month-long delay in which the first applicant makes certain that it has ‘fully engaged’ with the respondents, whatever that may mean. There are no guarantees that a settlement is even a possibility and, because of the fact that the interim order that was initially granted has been suspended, they are not even protected by it. The nature of the applicants’ complaints about the conduct of the respondents is such that a costs order cannot cure the prejudice that the second, third, fourth and fifth applicants allege is their lot as a result of the operation of the Crazy Zebra.

[21] For the above reasons, I decided to refuse the application for the postponement. After I had done so, the matter proceeded.

[C] URGENCY, AUTHORITY AND STANDING

(a) Urgency

[22] The respondents take the point that the matter is not urgent and to the extent that it may be, the first applicant’s notice of motion did not attempt, as far as practically possible, to comply with the form required by the rules. On either of these grounds the application falls to be dismissed, in the submission of Mr Beyleveld.

[23] In respect of the first issue, the respondents argue that, given the protracted dealings that preceded the launching of the application, the first applicant has abused the processes of the court by claiming that the matter is urgent: the urgency was self-created, and self-created urgency does not pass muster for purposes of rule 6(12).

[24] In order to deal with this argument it is necessary to have regard to the dealings between the parties in the weeks prior to the launching of the application.

[25] For present purposes 7 November 2002 is a convenient date to assume for present purposes that the dispute between the first applicant and the respondents commenced.¹¹ It was on that day that the first applicant’s attorneys directed a letter to the first respondent concerning the alleged non-compliance with zoning conditions. The first respondent was informed that the playing of loud music had caused a nuisance and requested to take steps to rectify the situation by immediately ceasing to play ‘live and/or recorded music in the outside alfresco dining area on any Friday or Saturday of the week which causes a common law nuisance’. It was, however, only on 21 November 2002 that a reply was received. Prior to that, however, the first applicant received more complaints about the noise emanating from the Crazy Zebra. It investigated those complaints and also discovered that the business was being conducted without a valid business licence, required by the Business Act 71 of 1991, and without a certificate of acceptability, required by a regulation made in terms of the Health Act 63 of 1977.¹²

[26] On 21 November 2002, the respondents’ attorneys responded to the letter of 7 November 2002. In this letter it is stated that ‘we have advised our client to ensure that common law nuisance ceases to the extent that there is a nuisance’.¹³ The first applicant’s attorneys responded on the same day and informed the respondents’ attorney that ‘we are preparing papers dealing with other issues beyond the common law nuisance aspect such as the zoning and use where appeals have been filed’.¹⁴

[27] On the following day the first applicant’s attorneys addressed a letter to the respondents in which they set out a lengthy list of what they alleged were breaches of the zoning conditions. A demand was made that the respondents remedy their breaches of the zoning conditions within 48 hours and the first applicant’s right to invoke the legal process was reserved.¹⁵ On 2 December 2002, the respondents’ attorneys answered this letter. He complained of unlawful police action against his clients, of an ‘orchestrated effort on the part of certain individuals (who have an agenda) to close down our client’ and that ‘the current appeals in respect of this [the] rezoning [of erf 1882] are simply part of another orchestrated attempt to delay a completely reasonable rezoning’. He stated that his client was complying with the zoning conditions and that it was not causing a nuisance. He proposed a meeting to be attended by ‘all interested parties, including the neighbours, the SAP and your client’.¹⁶

[28] This meeting took place on 9 December 2002, after initially being set down on an earlier, but as it happened, unsuitable day. The meeting, according to the respondents’ attorneys did not succeed in resolving any of the issues.¹⁷ On the following day the first applicant’s attorneys responded. It was pointed out that the first applicant’s position was that it was unlawful for the respondents to conduct business at erf 1882 and that they were required to cease to do so, and that the zoning condition that allowed music to be played on erf 1883 did not authorise the respondents to cause a nuisance. A demand was made of the respondents that they comply with the zoning conditions in respect of erf 1883 and that they immediately close their business operations on erf 1882.¹⁸

[29] On 12 December 2002 the first applicant’s attorneys sent a further letter to the respondents’ attorneys in which they drew to their attention the fact that the respondents were still operating their business without either a business licence or a certificate of acceptability. The respondents were given five days grace to lodge their applications for the licences and an undertaking that they would be dealt with within 21 days by the first applicant. This letter specifically said that it was written on the assumption that the business operations conducted on erf 1882 would cease.¹⁹

[30] On 13 December 2002 the first applicant’s attorneys sent another letter to the respondents’ attorneys in which they made it clear that, in their view, the respondents were acting unlawfully and they demanded the cessation of that unlawful conduct. The letter further stated that ‘[o]ur client expects written confirmation from your client to comply with their demands by no later than close of business today Friday 13 December 2002’ and that if no undertaking was given an application would be made for an interdict to compel the respondent’s compliance with the law.²⁰

[31] No undertaking was given and, on 13 and 14 December 2002, noise surveys were conducted by Mr Jacobus Slabbert, a senior environmental health practitioner employed by the first applicant. These surveys revealed that unacceptably high noise levels emanated from the Crazy Zebra and also confirmed that erf 1882 was still being used for business purposes contrary to the zoning conditions.²¹

[32] The application was launched on 19 December 2002 and notice was given that the matter would be heard at 09h30 on Friday 20 December 2002 or as soon thereafter as counsel could be heard. The papers were served on the respondents on the morning of Thursday 19 December 2002.²²

[33] The respondents placed reliance on the judgment of Trengove J in Schweizer-Reneke Vleis Maatskappy (Edms) Bpk v Die Minister van Landbou en andere,²³ an oft-quoted locus classicus on self created urgency. The nub of this case is contained in the following passage:²⁴

‘Volgens die gegewens voor die Hof wil dit vir my voorkom dat die applicant alreeds vir meer as ‘n maand weet van die toedrag van sake waarteen daar nou beswaar gemaak word. Die aangeleentheid het slegs dringend geword omdat die applicant getalm het en omdat die tweede respondent, soos die applicant lankal geweet het, of moes geweet het, dat die besigheid in Schweizer-Reneke ge-open het. Die applicant mag gewag het vir inligting van die eerste respondent soos in die skrywe aangevra maar dit was geensins nodig vir die doeleindes van hierdie aansoek wat op die nie-nakoming van die audi alteram partem reel gebaseer is, om so lank te wag om die Hof te nader nie.

Al hierdie omstandighede in ag genome is ek nie tevrede dat die applicant voldoende gronde aangevoer het waarom die Hof op hierdie stadium as ‘n saak van dringendheid moet ingryp nie. Ek is dus, in die omstandigheid, nie bereid nie om af te sien van die gewone voorskrifte van reel 6.’

[34] In this case, the first applicant did not drag its feet. It undertook efforts to resolve the problem that it had found at the Crazy Zebra by notifying the owners of their alleged non-compliance with the law, by attending a meeting in an effort to resolve the problem and when that failed, by requiring an undertaking. When that was not forthcoming, it investigated further so that it had evidence of the level of noise emanating from the Crazy Zebra. In my view it 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 relief. In these circumstances it cannot be said that the first applicant has been dilatory in bringing the application.²⁵ There is consequently no merit in this point.

[35] The second aspect relating to urgency relied upon by the respondents is that the notice of motion was not as far as possible in compliance with form 2(a) of Schedule 1 to the rules. Instead it is deviates completely from form 2(a) by failing to stipulate time periods for the filing of notices and papers, suitably abridged in accordance with the urgency of the matter. Reliance is placed on the judgment of Kroon J in Caledon Street Restaurants CC v D’ Aviera²⁶ in which the learned judge dismissed an urgent application because the applicant had misconstrued the degree of urgency and should have given more notice than it had to the respondent.²⁷

[36] Much is made by the respondents of the dicta in this case to the effect that the applicant should not have deviated from form 2(a) entirely but should have stipulated truncated time periods for filing a notice of opposition and for the filing of answering papers and the reply, and that applicants may only deviate from the forms and service provided for in the rules to the extent necessary.

[37] It is trite that applicants in urgent applications must give proper consideration to the degree of urgency and tailor the notice of motion to that degree of urgency.²⁸ It is also true that when courts are enjoined by rule 6(12) to deal with urgent applications in accordance with procedures that follow the rules as far as possible, this involves the exercise of a judicial discretion by a court ‘concerning which deviations it will tolerate in a specific case’.²⁹

[38] Secondly, it is not in every case in which the applicant may have departed from the rules to an unwarranted extent that the appropriate remedy is the dismissal of the application. Each case depends on its special facts and circumstances. This is implicitly recognised by Kroon J in the Caledon Street Restaurants CC case when he held – looking at the issue from the other perspective, as it were – that the ‘approach should rather be that there are times where, by way of non-suiting an applicant, the point must clearly be made that the rules should be obeyed and that the interest of the other party and his lawyers should be accorded proper respect, and the matter must be looked at to consider whether the case is such a time or not’.³⁰

[39] Thirdly, the ratio of the decision in Caledon Street Restaurants CC was not that the application fell to be dismissed because the applicant had not attempted to comply more fully with form 2(a) of Schedule 1 to the rules but rather that the applicant had misconceived the urgency of the matter to the extent that Kroon J held that ‘the use that the applicant made of the procedure relating to matters of urgency, was a misuse, indeed an abuse, of the process of the court’ and it was on this basis that the learned judge concluded that the application was to be dismissed.³¹

[40] I am of the view that the argument of the respondents on this point is based on a degree of inflexible formalism that, I am sure, Kroon J did not intend to suggest should be the norm in all cases irrespective of the circumstances. Indeed, the erstwhile Appellate Division has on a number of occasions turned its back on such formalism in the application of the rules. For instance, in Trans-African Insurance Co Ltd v Maluleka³² Schreiner JA held that ‘technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits’. In Federated Trust Ltd v Botha³³ Van Winsen AJA held that the ‘rules are not an end in themselves to be observed for their own sake. They are provided to secure the inexpensive and expeditious completion of litigation before the courts’ and that ‘[w]here one or other of the parties has failed to comply with requirements of the Rules or an order made in terms thereof and prejudice has thereby been caused to his opponent, it should be the court’s endeavour to remedy such prejudice in a manner appropriate to the circumstances, always bearing in mind the objects for which the Rules were designed’. In Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission³⁴ Corbett JA held that ‘[n]aturally, it is for the Court to decide whether the matter is really one of urgency and whether the circumstances warrant a departure from the normal procedures. To hold otherwise would, in my view, make the Court the captive of the Rules. I prefer the view that the Rules exist for the Court, rather than the Court for the Rules’.³⁵ Most recently, in Scott v Golden Valley Supermarket³⁶ Harms JA held that the rules ‘are designed to ensure a fair hearing and should be interpreted in such a way as to advance, and not reduce, the scope of the entrenched fair trial right’ contained in s34 of the Constitution.

[41] In these circumstances, I am of the view that the matter was of sufficient urgency to justify the first applicant approaching the court on the notice provided for in the notice of motion. It should be borne in mind that the allegations against the respondents involve not only ongoing unlawful conduct, but conduct that constitutes criminal offences. The first applicant has a duty to safeguard the interests of residents and that must surely include a duty to act in the public interest to prevent violations of zoning schemes and the perpetration of offences. It must also be borne in mind that the issues involved in this matter were known to the respondents well before the application was launched: the letters from the first applicant’s attorneys to the respondents’ attorneys are detailed and foreshadow what was to be contained in the founding papers. The respondents cannot be said to have been taken by surprise by the contents of the first applicant’s papers. I am consequently of the view that the challenge to the urgency of the application must fail.

(b) Authority

[42] The founding affidavit was deposed to by Dawid Johannes Welgemoed who is employed by the first applicant as the senior estates officer. He stated that he was ‘duly authorised to bring this application and to depose to the affidavit herein on behalf of the [first] applicant’.³⁷ The respondents challenge the authority of Mr Welgemoed pointing out that no resolution or written authorisation forms part of the papers.³⁸

[43] In order to meet this challenge, the first applicant relies on three points. First, in his replying affidavit, Mr Welgemoed stated that he had delegated authority from the Chief Executive of the first applicant – the Municipal Manager -- to ‘institute legal proceedings to ensure compliance of zoning and related matters’.³⁹ He attached the instrument that purports to give him this authority.⁴⁰ Secondly, the Municipal Manager, Mr ML Mangcotywa, stated that he has authority to institute and defend legal proceedings on behalf of the first applicant, that he took the decision to institute proceedings against the respondents, that Mr Welgemoed acted at all times with his knowledge and consent and that Mr Welgemoed consequently was, at all times, duly authorised to bring the application on behalf of the first applicant.⁴¹ Thirdly, to the extent that this may be necessary, Mr Mangcotywa claims to ratify and authorise all of the actions of Mr Welgemoed in instituting these proceedings on behalf of the first applicant.

[44] I intend to deal only with the second point, which will dispose of the issue. I do so because it appears to me that it, in fact, is definitive of the nature of Mr Welgemoed’s authority to act as well as of Mr Mangcotywa’s powers to instruct Mr Welgemoed to act.

[45] Mr Goosen argued that Mr Mangcotywa’s power to institute proceedings is derived from s55(1) of the Local Government: Municipal Systems Act 32 of 2000 that provides that a Municipal Manager is, inter alia, responsible and accountable for ‘the management of the municipality’s administration in accordance with this Act and other legislation applicable to the municipality’,⁴² for the ‘administration and implementation of the municipality’s by-laws and other legislation’⁴³ and for the ‘exercise of any powers and the performance of any duties delegated by the municipal council, or sub-delegated by other delegating authorities of the municipality, to the Municipal Manager in terms of section 58’.⁴⁴

[46] Provincial Notice 87 of 2000 disestablished five municipalities and established in their stead the larger Nelson Mandela Metropolitan Municipality. Section 10 of this notice saved all by-laws, regulations and resolutions made or passed by the disestablished municipalities, until such time as they were amended or repealed and made them applicable to the new municipality. One such resolution of the erstwhile Port Elizabeth Municipality delegated to the Chief Executive/Town Clerk – the predecessor in title of the Municipal Manager – the power to ‘consider and take whatever action he may deem necessary in all legal actions, legal applications and arbitrations’, to ‘take all action necessary to conduct litigation and arbitration in the best interests of the Council’ and, perhaps most pertinently, in ‘the circumstances in which, in his opinion, immediate action is required to protect the interests of the Council or to enforce the regulations, tariffs or Town Planning Scheme of the Council by way of interdict, mandamus or other court order, to institute or intervene in any legal proceedings including criminal prosecutions or in any court of law’.⁴⁵

[47] Mr Beyleveld argued that Mr Mangcotywa was not entitled to delegate the function of litigating on behalf of the first applicant to Mr Welgemoed as he purported to do. This argument loses sight, in my view, 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 is a discretionary decision. The resolution places this decision in the hands of the Municipal Manager who may institute proceedings to enforce the town planning scheme of the first applicant if he forms the opinion that ‘immediate action is required’ in this respect. I have little doubt that this discretionary decision-making power may not be delegated in the absence of authorisation to do so.

[48] Mr Mangcotywa stated, however, that he took this decision – that he had been briefed on developments in this matter, that Mr Welgemoed advised him that ‘further legal action would be required in order to ensure compliance with the [first] applicant’s zoning scheme’, that he ‘approved and authorised such action’ and that Mr Welgemoed ‘was at all times acting with my knowledge and consent and was accordingly at all times duly authorised to bring this application on behalf of the [first] applicant’.⁴⁶

[49] In other words, Mr Welgemoed did not exercise any discretionary powers or perform any discretionary functions. His functions were purely mechanical. He was simply the human face of the first applicant for purposes of giving effect to the decision that had been taken by Mr Mangcotywa.

[50] The principle against delegation of delegated powers is not offended in these circumstances. It is intended to ensure that when discretionary powers are vested in an official because of his or her seniority, responsibility or expertise, the purpose of the empowering provision cannot be defeated by a delegation of authority to another official who does not possess the requisite qualities.⁴⁷ Non-discretionary decisions – such as the giving effect to a discretionary decision – would not defeat the purpose of the rule. Baxter states the position thus:⁴⁸

‘Powers which involve little or no discretion – so-called “purely mechanical” powers – are usually delegable. Since there is no choice involved nothing is lost if the power is exercised by a subordinate. The same may be said where the person designated by the legislation directs his personal attention to those elements of the power which involve discretion and then, having made a decision, leaves its implementation to someone else.’

[51] On the above basis I conclude that it cannot be said that Mr Welgemoed was not properly authorised to bring the application on behalf of the first applicant. The challenge to his authority therefore fails and it is unnecessary for me to consider whether or not Mr Mangcotywa could ratify his acts after the event.

(c) Standing

[52] The respondents challenge the standing of the fourth respondent on two grounds. In his answering affidavit, Mr Melville denied that ‘the fourth respondent exists in law’ and ‘further denied that there is any necessity for joining either such association which has no legal personality or the individual constituent members as respondents in these proceedings’.⁴⁹

[53] It is necessary to set out some details about the fourth respondent. It was formed by the second, third, fourth and fifth applicants on 12 December 2002 who orally agreed to form a voluntary association ‘with the specific purpose to sue and be sued in connection with enforcing the compliance by the respondents with the rezoning conditions imposed on erven 1882 and 1883, Walmer, as well as in connection with the common law nuisance created by the respondents as a result of such non-compliance’.⁵⁰ The terms of the constitution of the fourth respondent were discussed between these founding members and their attorney, Mr Martindale and rough amendments were made to the constitution of an existing voluntary association to suit the circumstances of the voluntary association that they were in the process of forming. In due course, the constitution was typed and signed by the four founding members. It was, however, backdated from 6 January 2003 – the date of the signing -- to 12 December 2002 – the date of the oral agreement.⁵¹ The relevant provisions of the constitution of the fourth respondent are set out below.⁵²

[54] The preamble states, after noting that the Crazy Zebra is ‘causing a nuisance and contravening the zoning laws by illegally operating a business on erf 1882 Walmer, and the conditions of use of erf 1883’ and that attempts by residents and landowners in the area to resolve this problem had been unsuccessful, that the ‘the founding members agree to form an association for carrying out a series of planned activities with the special aim of promoting and protecting their constitutional and common law rights in relation to their ownership of property and have agreed to the terms and conditions of their association’. The name of the association thus created is the Victoria Park Ratepayers Association.⁵³

[55] Under the heading ‘Legal Status’ the constitution provides:⁵⁴

’2.1 The Association is and shall continue to be a distinct and separate legal entity with the power to acquire, to hold and to alienate property of every description whatsoever and with the capacity to acquire rights and obligations and having perpetual succession.

2.2 The Association is and shall be a juristic person and can act and be acted against in its own name.

2.3 The property and funds of the Association vest in the Association, as a juristic person and no member of the Association shall be liable for the debts of the Association.’

[56] The objects of the association are set out in paragraph 5 of the constitution. This paragraph provides:

‘5.1 The main objects and powers of the Association are and shall be –

5.1.1. To protect the residential amenities which are presently being adversely affected by the Crazy Zebra;

5.1.2. To take legal steps to end the nuisance caused by the owner of the Crazy Zebra and to campaign for the promotion and protection of the common law and constitutional rights of the members and other ratepayers and residents who occupy or who own properties surrounding No. 1 (Erf 1882) and No. 3 (Erf 1883), 3^rd Avenue, Walmer, Port Elizabeth;

5.1.3. To campaign for procedurally fair, lawful and reasonable conduct by the Nelson Mandela Metropolitan Municipality and Provincial Government in respect of its rezoning decisions and administrative actions in respect of Erven 1882 and 1883, Union Road, Walmer, as well as its administrative action regarding the conduct of the restaurant/pub business called the Crazy Zebra;

5.1.4. To oppose, defend and initiate and conduct in any manner whatsoever as advised by its legal advisors, appropriate legal proceedings in the High Court of South Africa, South Eastern Cape Local Division, including a court of appeal and review, for such relief as will give effect to the objects set out in paragraphs 5.1.1, 5.1.2 and 5.1.3 above.’

[57] Paragraph 7 of the constitution is headed ‘Limitations’. It provides that the income and property of the association ‘shall be applied solely towards the promotion of its objects, and no portion thereof shall be paid or transferred, directly or indirectly, by way of dividend, bonus or otherwise howsoever, to the members of the Association’. Paragraph 22.2 provides that upon the dissolution of the association, its assets that remain after its debts have been paid, ‘shall be given or transferred to some other association or institution or associations or institutions having objects similar to the objects of the Association’.

[58] Bamford defines a voluntary association as ‘a legal relationship which arises from an agreement among three or more persons to achieve a common object, primarily other than the making and division of profit’.⁵⁵ Caney and Brooks say the following of the formation of voluntary associations:⁵⁶

‘An association is founded on a basis of mutual agreement. This entails that it will come into being if the individuals who propose forming it have the serious intention to associate and are in agreement on the essential characteristics and objectives of the universitas or unincorporated association. The latter aspect is usually manifested by the approval and adoption of a constitution. For practical purposes it is advisable, but not essential, to have a written constitution.’

[59] The fourth respondent came into being on 12 December 2002 when its founding members agreed to form it and did so in the terms of the draft constitution and with the ‘specific purpose to sue and be sued in connection with’ forcing the respondents to comply with the applicable zoning laws and the law of nuisance. The essentials for the creation of a voluntary association were thus present: the association claimed separate legal personality, perpetual succession, the ability to sue and be sued in its own name, a non-profit nature and came into existence to pursue the object, common to its founders, to take legal and other steps to ensure that the Crazy Zebra did not conduct business contrary to the zoning laws and in violation of the common law rules relating to nuisance.

[60] I am of the view that the fourth respondent acquired a legal personality separate from those of its members at common law -- and that it is thus a universitas. In terms of its constitution it claims perpetual succession⁵⁷ and the right to hold property in its own right, distinct from its members.⁵⁸ It is also clear from its constitution that it is not required to be registered as a company as it was not established, in the words of s31 of the Companies Act 61 of 1973, ‘for the purpose of carrying on any business that has for its object the acquisition of gain by the association or by the individual members thereof’.⁵⁹ As a result, it may sue and be sued in its own name. The respondents’ contention that it is does not exist in law is therefore unsound.

[61] Even if I am wrong in this regard, rule 14(2) of the uniform rules provides that an association, defined by rule 14(1) as ‘any unincorporated body or person, not being a partnership’, may ‘sue or be sued in its own name’. The rule made it possible for the first applicant to sue the fourth respondent in its own name but does not answer the ancillary question of whether it should have sued the fourth respondent.⁶⁰ It is to that issue that I now turn.

[62] The nub of the issue is whether the fourth respondent had a sufficient interest in the subject matter of the dispute and that it was therefore necessary for the first applicant to join it as a respondent in the proceedings.

[63] On 9 December 2002, shortly before the institution of these proceedings, the founding members of the fourth respondent had taken part in a meeting with the first applicant and the respondents. Prior to that, of course, the founding members of the fourth respondent had been at the centre of opposition to the rezoning of erf 1882 and had appealed against the decision to rezone it. The first applicant had thus had dealings with the founding members of the fourth respondent for some time.

[64] On 12 January 2003, the first applicant received a letter from the fourth respondent’s attorney, Mr Martindale, in which he stated that the fourth respondent had been formed, that it had a separate legal personality and that its main objects was to ensure that ‘in relation to the rezoning of erven 1882 and 1883, Walmer, and the conduct of the current business under the name Crazy Zebra’ the first applicant would act in accordance with the values that are imposed upon the public administration by the Constitution, that it would respect the rights of residents to lawful, reasonable and procedurally fair administrative action and that it would uphold the rule of law. Mr Martindale stated further that, as a result of what his clients perceived to be reliance on ‘stalling tactics and ‘red herrings’ on the part of the first applicant, he had instructions to demand that he be advised urgently as to what the first applicant intended to do to put a stop to the illegal activities at the Crazy Zebra.⁶¹

[65] By the time that the application was launched, the first applicant was aware of the existence of the fourth respondent and of what its aims and objects were, in broad terms. Given the nature and subject matter of the dispute, it would have been reasonable for the first applicant to have assumed that the fourth respondent had a sufficient interest in the subject matter of the dispute and, on that basis, to have cited it as a respondent.

[66] In addition to the above, the fourth respondent’s constitution expressly gives it the power to sue or be sued in the furtherance of its objects, which relate directly and unambiguously to the plans of the members of the fourth respondent to force the Crazy Zebra, through litigation, to comply with the law. In these circumstances, even under the restrictive pre-1994 common law rules of standing, courts recognised the standing of associations like the fourth respondent to litigate on behalf of their members.⁶² Now, when courts are required to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights;⁶³ when s34 of the Constitution makes specific provision for the entrenchment of a fundamental right of access to court; when the rules of standing in their constitutional setting must be applied broadly;⁶⁴ and when courts have developed the common law in similar situations to recognise the standing of associations to act in the public interest or in the interests of their members,⁶⁵ there can be little warrant in not recognising the standing of an association such as the fourth respondent to litigate on behalf of its members.

[67] The need to do so is all the more necessary in a context such as the present case when the dispute is one in which private law, to which the Constitution may not apply directly, and public law, to which the Constitution does apply directly, are tightly interwoven, and in which the rights and obligations of an organ of local government, and those of residents and ratepayers are similarly closely interconnected. It is important to bear in mind that s152(1)(e) of the Constitution provides that one of the objects of local government is to ‘encourage the involvement of communities and community organisations in the matters of local government’.

[68] For the above reasons, the respondents’ attack on the standing of the fourth respondent fails.

[D] THE MERITS, SUSPENSION OF THE ORDER AND COSTS

(a) The Merits

[69] The basis upon which the lawfulness of the respondents’ conduct is challenged by the applicants is different in respect of erf 1882 and erf 1883. It is alleged that the respondents are in breach of the zoning conditions applicable to erf 1882 and on that ground ought to be interdicted from carrying on business there. In respect of erf 1883, it is argued, the respondents are not entitled to use the erf, in accordance with the terms of the zoning conditions, in such a way as to cause a common law or statutory nuisance and they ought to be interdicted from doing so.

[70] Erf 1882 is currently zoned for residential use. Erf 1883 is zoned for business purposes.⁶⁶ During 2002, however, the respondents applied to the first applicant for the re-zoning of erf 1882 and for the amendment of the zoning conditions applicable to erf 1883.⁶⁷ These applications were successful: erf 1882 was rezoned from residential to business use and the zoning conditions applicable to erf 1883 were amended.⁶⁸ The letter from the first applicant to the first respondent to inform it of the success of the applications sets out a number of conditions that attach to the rezoning and the amendment.⁶⁹

[71] The third applicant appealed against these decisions,⁷⁰ although it would appear that only the decision to rezone is appealable.⁷¹ The appeal lies to the Premier of the Province and it has not been determined yet.

[72] Regulation 20 of the regulations made in terms of s47 of the Land Use Planning Ordinance 15 of 1985⁷² provides that when an application for rezoning in respect of which objections have been made is granted, the Municipal Council concerned ‘shall point out to the applicant not to act on the said approval until such time as it is confirmed in writing that no appeal has been received; provided that where an appeal is received, the said approval shall be suspended’. This means that, until such time as the appeal has been decided by the Premier, erf 1882 may only be used for residential purposes. To use land otherwise than in accordance with applicable zoning conditions constitutes an offence in terms of s39(2), read with s46(1) of the Land Use Planning Ordinance.

[73] It is common cause that erf 1882 was being used for business purposes by the respondents at the time when the application was brought. Mr Melville admits this in as many words. For instance, he stated that ‘I operate the business and restaurant known as the Crazy Zebra, the business which is conducted not only on Erf 1883 but also on Erf 1882, Walmer’.⁷³ In answer to Mr Slabbert’s averment that when he conducted his noise survey he observed that erf 1882 was being used for business purposes, Mr Melville admitted that this erf was, at the time, used ‘for business purposes but it is denied that it was contrary to the applicable zoning of the property’.⁷⁴

[74] On this basis alone, the respondents’ use of erf 1882 is unlawful and it is not necessary for me to consider the arguments in respect of the respondents’ failure to comply with the conditions upon which the rezoning was dependant.

[75] The position is different in respect of erf 1883. It was zoned for business use and the amendment of the conditions applicable to it is not subject to an appeal. The case of the applicants is not that the use of erf 1883 for the purposes for which it is being used is unlawful, but rather that the manner of its use is: by causing loud music to be played, the respondents have contravened the Noise Control Regulations⁷⁵ made under the Environmental Conservation Act 73 of 1989, and have caused a nuisance at common law. On both accounts, it is argued, the conduct of the respondents is unlawful and ought to be interdicted.

[76] The amended condition (xiv) that applies to the use of erf 1883 is to the effect that the respondents may not ‘cause or permit the playing of music that is audible outside of the restaurant buildings or music which is played inside of the restaurant buildings and is audible outside of the restaurant buildings to the extent that it causes any type of common law nuisance, except that amplified music may be played in the outside alfresco dining area on any Friday and Saturday of any week and only until 22:30’.⁷⁶

[77] The respondents argue that the condition, because it allows the playing of amplified music, in effect authorises the respondents to cause a nuisance on Friday and Saturday nights until 22:30.

[78] Before turning to whether the evidence establishes a breach of the Noise Control Regulations or that the conduct of the respondents amounts to a nuisance at common law, this argument must be dealt with briefly. I agree with Mr Mouton when he described the condition as being ‘unhappily worded’ because of the explicit prohibition on the causing of a common law nuisance in the playing of music generally, followed by the phrase ‘except that amplified music may be played in the outside alfresco dining area on any Friday and Saturday of any week and only until 22:30’.

[79] Despite the unhappy wording, there are three reasons that spring to mind why the interpretation contended for by the respondents cannot prevail. First, administrative action that ‘contravenes a law or is not authorised by the empowering provision’ is liable to be reviewed and set aside in terms of s6(2)(f)(i) of the Promotion of Administrative Justice Act 3 of 2000, being an infringement of the fundamental right to lawful administrative action. If the first applicant intended to give permission to the first respondent to act unlawfully, it did not have the lawful authority to do so. Secondly, the Noise Control Regulations themselves make provision for the lawful causing of noise nuisances in three sets of circumstances: to warn people of dangers, in an emergency and if a person has applied successfully in writing to an organ of local government for an exemption from any of the provisions of the regulations.⁷⁷ There is no suggestion that the respondents made such an application. Thirdly, when interpreting statutes and statutory instruments, courts may assume, in the absence of clear indications to the contrary that, when conduct is referred to, the drafter intended to refer to lawful conduct,⁷⁸ that unfair, unjust and unreasonable results were not intended⁷⁹ and that the legislator intended that enactments should be consistent with the existing law and should not alter the common law or statute more than is necessary.⁸⁰

[80] The evidence upon which the applicants argue that the respondents have contravened the Noise Control Regulations was given by two experts, Mr Jacobus Slabbert, a senior environmental health practitioner employed by the first applicant, Mr Mhlayifani Titima, a divisional environmental health practitioner, also employed by the first applicant.

[81] Mr Slabbert conducted a noise survey on 13 and 14 December 2002 at a property adjacent to erfs 1882 and 1883. He stated that his results ‘indicate that the noise levels exceeded the ambient sound level by 7dBA and more, therefore constituting a disturbing noise as defined in terms of the Noise Control Regulations’ and that it was his opinion that ‘the noise levels emanating from the business known as the Crazy Zebra constitute a noise nuisance in respect of the adjacent residential properties’.⁸¹ In his report, he sets out in detail the equipment he used, the tests he conducted and their results, the standards he applied and his conclusions.⁸² One of his conclusions is the following:⁸³

‘The biggest problem exists when the live bands are performing and/or recorded music is being played in the outside alfresco dining area as it is impossible to soundproof an open area where sound waves are travelling in different directions. It appears as if no proper sound barriers between the Crazy Zebra premises and the complainant’s premises and/or adequate noise attenuation measures which could absorb some of the sound generated by the playing of amplified music, is installed.’

[82] Mr Titima conducted a noise survey at premises adjacent to the Crazy Zebra on 20 December 2002. He too found that ‘the noise level exceeded the ambient sign level by 7dB or more thus constituting a disturbing noise as defined in terms of the Noise Control Regulations’ and that, in his opinion, ‘the noise level emanating from the business known as the Crazy Zebra constituted a noise nuisance in respect of the adjacent residential properties’.⁸⁴

[83] This evidence must be regarded together with the evidence of Mr Maasdorp (whose evidence about the noise levels is confirmed by Ms Beverley Lovemore,⁸⁵ the wife of the third applicant, and confirmed in general by the fourth applicant⁸⁶ and the fifth applicant⁸⁷). Mr Maasdorp said the following about the noise from the Crazy Zebra:⁸⁸

‘It is further to be noted that the noise nuisance is not only determined by experts such as Mr Slabbert who are capable of according a numerical value to the levels of noise created by the Crazy Zebra Restaurant. The plain and simple fact of the matter is that especially on Friday and Saturday nights, but also on certain other nights (particularly Wednesday nights), the music is so loud that residents have to close their doors and windows and turn up their television sets or radios in order to endeavour to drown out the music and to listen to their own entertainment. On many, many occasions, it is impossible for us to invite our friends to visit us socially since it would be an almost impossible task to carry on conversation and it would in any event be most unpleasant for them to be exposed to the incessant loud music. Many of us cannot fall asleep anymore without the aid of sleeping tablets and the constant noise has caused severe stress in some of us, particularly Mr Lovemore, who is not in good health.’

[84] As against this evidence, the respondents allege that the noise is not as bad as alleged, that the residents in the vicinity of the Crazy Zebra do not have a valid complaint about the noise, that they live in a noisy area close to the airport and that the noise that does emanate from it does not constitute a noise nuisance in terms of the Noise Control Regulations or a nuisance in terms of the common law. (I leave aside the assertion that condition (xiv) permits the respondents to make as much noise as they like on Fridays and Saturdays before 22:30, as this argument has been dealt with above.)

[85] In support of these defences, the respondents rely on two witnesses. The first is Mr Wessel Coleske, a resident who lives next to erf 1883. He stated that he does not find that ‘the music played at the restaurant constitutes a public nuisance and if it might be a trifle loud, all it takes is a telephone call to the second respondent to sort it out’.⁸⁹ The second witness is Mr Steven Frost, a businessman involved in the sound industry. He took issue with the findings of Mr Slabbert (as well as with the contents of a report ostensibly compiled by a Mr Williams, which is attached to the affidavit of Mr Maasdorp) and stated that, on 22 and 24 January 2003, he ‘conducted intermittent noise recordings in the vicinity of erf 1882 and [erf] 1883 Walmer’.⁹⁰

[86] Despite this, I am of the view that the applicants have discharged the onus resting on them to establish the noise nuisance that they allege. Mr Slabbert measured the noise levels over two evenings, without the respondents being aware that he was doing so. Mr Titima, whose evidence and conclusions are not challenged did the same and arrived at the same conclusions. Their findings are in accordance with the evidence of the second applicant and the third applicant’s wife. Even if one ignores the evidence of Mr Slabbert, the evidence of Mr Titima remains unchallenged. The evidence of Mr Coleske does not take matters much further: its import is that although there is noise that emanates from the Crazy Zebra, he can tolerate it and it is not as bad as it could be. Mr Frost’s report raises some queries about Mr Slabbert’s methodology but this is not sufficient to raise a genuine dispute of fact. Nor is the fact that, when he conducted his tests at the request of, and presumably with the knowledge of the respondents, he did not find that, on those evenings, the noise was excessive.

[87] Mr Mouton urged me to use the robust approach that Price JP advocated in Soffiantini v Mould.⁹¹ The learned Judge President held as follows:⁹²

‘If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device.

It is necessary to take a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.’

[88] The overwhelming weight of the evidence and the probabilities compel the conclusion that the respondents run their business in contravention of the Noise Control Regulations and that they thereby cause a noise nuisance on Friday and Saturday nights by allowing music to be played at unacceptably loud volumes. When this evidence is placed in the scales with: the denials of the respondents; their assertions that they are entitled to conduct their business in this way; the obfuscatory attacks on the good faith of Mr Welgemoed, the second, third, fourth and fifth applicants; the vague allegations of conspiracies; and the equally vague report by Mr Frost on the tests he conducted and his sniping at the methodology of Mr Slabbert, I am compelled to the conclusion that, on a robust and common-sense approach to the facts, the case of the applicants for a contravention of the Noise Control Regulations has been established on a balance of probabilities.⁹³ In these circumstances I am of the view that the dispute of fact that is said to exist is not a ‘real, genuine or bona fide dispute of fact’ and I am, furthermore satisfied as to the ‘inherent credibility’ of the applicants‘ version as to the noise level that emanates from the Crazy Zebra.⁹⁴ I am also satisfied that oral evidence ‘would not disturb the balance of probabilities appearing from the affidavits’.⁹⁵

[89] It has thus been established, in my view, that the sound that emanates from the Crazy Zebra and that forms the basis of the complaint against the respondents is indeed sound that disturbs or impairs (or at the very least, that may disturb or impair) the convenience or peace of the second, third, fourth and fifth applicants, and probably of other people living in the area too.⁹⁶ In terms of regulation 5(a), read with regulation 9, it is a criminal offence, punishable by way of a fine not exceeding R20 000.00 or imprisonment not exceeding two years, or both (for first offenders) to ‘cause a noise nuisance, or allow it to be caused, by operating or playing any radio, television set, drum, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound’.

[90] The unlawfulness of the respondents’ conduct has thus been established in respect of erf 1883 and it is unnecessary for me to deal with whether this conduct also constitutes a nuisance at common law. The applicants have established an entitlement to an interdict in respect of the activities of the Crazy Zebra on both erf 1882 and 1883. The precise terms of the order will be dealt with below.

(b) Suspension of the Order

[91] Mr Beyleveld has argued that if I find that the conduct of the respondents ought to be interdicted, I should suspend the operation of an order to that effect until the appeal against the rezoning of erf 1882 has been dealt with. As there is no appeal against the amendment of the conditions that apply to the use of erf 1883, there can be no question of a suspension of an order that is made concerning it.

[92] The grounds upon which Mr Beyleveld relies are essentially that the closure of the Crazy Zebra while the Premier considers the appeal will cause economic hardship to the respondents and those they employ and that the prospects of Mr Lovemore’s appeal succeeding are slim. In these circumstances I am urged to exercise a discretion in the interests of equity and because the balance of convenience favours the respondents.

[93] Mr Goosen has argued that no general discretion exists that allows a court to permit unlawful conduct to continue, that while it may be that a discretion of limited nature may be exercised in exceptional circumstances, such circumstances are not present in this case and the conduct complained of is criminal conduct, and that there is no basis upon which to assume that the appeal is a foregone conclusion.

[94] I am of the view that a court does not have a general discretion, having found conduct of a respondent to be unlawful and criminal, to suspend its order that would put an end to that conduct. I am therefore in respectful agreement with Harms J in United Technical Equipment Co (Pty) Ltd v Johannesburg City Council⁹⁷ in this regard. Even if a limited discretion exists to cater for exceptional circumstances, this is not such a case. Indeed, in this case, considerations of policy and good governance point in the opposite direction: to suspend an order would, as in the United Technical Equipment Co (Pty) Ltd case, have the effect of presenting the Premier and the first applicant with a fait accompli engineered through the respondents’ own unlawful conduct⁹⁸ and it would also have the effect of undermining the confidence of ratepayers and residents in the ability of the courts, the Premier and the first applicant to perform their constitutional and statutory functions and safeguard the rights and interests of ratepayers and residents in a lawful, reasonable and fair manner. In the absence of the type of exceptional circumstances that were present in CD of Birnam (Suburban) (Pty) Ltd and others v Falcon Investments Ltd⁹⁹ the suspension of an order would, in my view, amount to an abdication of judicial responsibility. For good reason, such a course finds no support in our case law.

[95] Secondly, as Harms J held in the United Technical Equipment Co (Pty) Ltd case, a lenient approach to unlawful land use may be regarded as an open invitation to members of the public to simply use their land as they want, irrespective of the zoning laws, in anticipation of their unlawful use being legalised in due course.¹⁰⁰ It is obvious that this type of approach strikes at the legitimacy of the law as an instrument for the effective and fair regulation of the competing rights and interests of communities and as the means to safeguard and advance the public interest. Thirdly, and perhaps most importantly, a suspension of the order I plan to make would amount to condoning criminal behaviour in circumstances in which the respondents have acted with what may best be described as contempt for the law.¹⁰¹

[96] In the light of the above, I am of the view that, to the extent that I may have a discretion to suspend the order that I will make, the facts of this matter do not qualify as being exceptional and that, consequently, no basis exists for me to exercise such a discretion.

(c) Costs

[97] In the light of the conclusions that I have reached, the costs of the application are to be borne by the first and second respondents, there being no reason why costs should not follow the result.

[98] I should add, however, that at the outset of the hearing I dismissed the application of the first applicant for a postponement. This application was opposed by the second, third, fourth and fifth applicants (who were then applying to intervene) and the fourth respondent, but was supported by the first and second respondents. The costs of this application should also follow the result, as should the costs of the application by the second, third, fourth and fifth applicants to intervene, which was opposed by the first and second respondents.

[E] THE ORDER

[99] For the reasons set out above an order is made:

1. restraining the first and second respondents from utilising or causing to be used erf 1882, Walmer, Port Elizabeth, situated at 1, 3^rd Avenue, Walmer, Port Elizabeth (hereafter referred to as erf 1882), for any purpose other than residential 1 use, in accordance with the current zoning of this property;

2. restraining the first and second respondents from in any manner conducting the business known as the Crazy Zebra, or any other business, from erf 1882 until such time as the erf is appropriately rezoned to authorise such use;

3. directing the first and second respondents to take such steps as may be required to abate the noise nuisance occasioned by their use of erf 1883, Walmer, Port Elizabeth, situated at 3, 3^rd Avenue, Walmer, Port Elizabeth (hereafter referred to as erf 1883);

4. declaring that zoning condition (xiv) applicable to erf 1883 does not authorise the first and second respondents to cause a noise nuisance;

5. directing the first applicant to pay the costs of the second, third, fourth and fifth applicants and the fourth respondent occasioned by the application for a postponement on 30 January 2003;

6. directing the first and second respondents, jointly and severally, the one paying, the other to be absolved, to pay the costs of the second, third, fourth and fifth applicants, occasioned by its opposition to their application to intervene;

7. directing the first and second respondents, jointly and severally, the one paying, the other to be absolved, to pay the costs of the main application.

_______________________

C. Plasket

Acting Judge

Date Argued: 30 January 2003

Date of Judgment: 21 February 2003

Counsel for the first applicant: Mr G Goosen

Counsel for the second, third, fourth, fifth applicant and the fourth respondent: Mr C Mouton SC

Counsel for the first and second respondents: Mr A Beyleveld

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