In the matter between:
WAYNE ALAN LASKEY FIRST APPLICANT
DAVID PETER ANDERSON SECOND APPLICANT and
SHOWZONE CC FIRST RESPONDENT
RUSSELL ALEXANDER SHAPIRO SECOND RESPONDENT
OFF BROADWAY THIRD RESPONDENT
JOHN HUGHES FOURTH RESPONDENT JUDGMENT
Delivered on 30 October 2006 BINNS-WARD AJ The applicants, who are the owners and occupiers of two inner city apartments in Cape Town, seek the following substantive relief:
‘An order interdicting the First to Third Respondents from:
Causing or allowing to be caused from the premises at 88 Shortmarket Street, Cape Town, a “disturbing noise” and/or a “noise nuisance” as defined in the Noise Control Regulations…
Conducting any business from the premises…in a manner which constitutes a nuisance and/or disturbs the Applicants’ right to free and undisturbed use and possession of their properties situate at….’
By the time the matter was argued it was accepted that any interdict which might issue should be granted against only the first respondent, to whom, for convenience, I shall therefore hereafter refer simply as ‘the respondent’.
The respondent operates ‘On Broadway’, a well-known theatre-restaurant in Cape Town. The theatre was situated initially at an address in Green Point, but in April 2005 it moved premises to 88 Shortmarket Street, in the central business district. The new premises of On Broadway abut directly onto the building situate at 74 Loop Street, where the applicants’ apartments are situated on the third and fourth floors, respectively. Indeed the applicants’ apartments look out over the roof of On Broadway.
As may be deduced from the nature of the relief sought by them, the applicants’ complaint is founded on what they contend to be the unacceptable level of noise, particularly music, emanating from On Broadway, during the performances which take place there on a regular basis.
The applicants claim that they are entitled to interdictory relief against the respondent because it is common cause on the evidence that the noise levels emanating from On Broadway during the evening shows qualify as ‘disturbing noise’ as defined in the Noise Control Regulations made by the Provincial Minister of Environmental Affairs (Western Cape) in terms of s 25 of the Environment Conservation Act 73 of 1989 (‘the ECA’).1 A ‘disturbing noise’ is defined in the regulations as ‘a noise level that exceeds the ambient sound level measured continuously at the same measuring point by 7 dBA [i.e. decibels2] or more’.
It is relevant in the context of the applicants’ complaint to observe that a ‘disturbing noise’ is defined in a technical manner measured as a sound level above a variable base, and without any indicated reference to its effect on the amenities of any person. The variable base is the prevalent ambient noise level- accordingly a much louder noise would be needed to qualify as a ‘disturbing noise’ in a busy urban environment than would be the case in a quiet wilderness area. The repeated cry of a fish eagle in a quiet wilderness area, pleasing and evocative as it might be to the ear of the average human visitor, would nevertheless in all likelihood qualify as a ‘disturbing noise’ in terms of the regulations. I make the observation merely to illustrate that it does not seem to follow that a ‘disturbing noise’ as defined in the regulations would necessarily be disturbing in the ordinary sense of the word, or nuisancesome in the sense necessary to found a claim in neighbour law. By contrast, there is also reference in the regulations to a ‘noise nuisance’, which is defined as a ‘sound which disturbs or impairs or may disturb or impair the convenience or peace of any person’ (my emphasis). It is readily conceivable in my view that a ‘disturbing noise’, as defined, may or may not, depending on the circumstances, also be a ‘noise nuisance’. The reason for the potential distinction provided in the regulations between a ‘disturbing noise’ and a ‘noise nuisance’ is less than clear.
No person shall make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof.’ Regulation 5(a) provides that:
‘No person shall operate or play a….drum, musical instrument, sound amplifier, loudspeaker system or similar device that produces, reproduces or amplifies sound, or allow it to be operated or played so as to cause a noise nuisance’.
Regulation 9 provides that any person who fails to comply with regulation 3, 4 or 5 commits an offence punishable by fine or imprisonment.
The applicants contend that they are entitled to enforce compliance with the regulations, or put differently, that they are entitled to interdictory relief prohibiting the respondent from continuing in its failure to comply with regulation 4.
Referring to the well established requirements that an applicant for final interdictory relief has to satisfy to obtain an order, Mr Irish SC who, together with Mr Tyler, appeared for the respondent, submitted that it is necessary if the applicants are to succeed in obtaining a prohibitory interdict based on the respondent’s non-compliance with the regulations that they should establish that the regulations vested a right in them, the infringement of which was amenable to protection by an interdict. Mr Irish submitted with reference to Knop v Johannesburg City Council 1995 (2) SA 1 (A); Faircape Property Developers (Pty) Ltd v Premier, Western Cape 2000 (2) SA 45 (C)3 and Olitzki Property Holdings v State Tender Board and another 2001 (3) SA 1247 (SCA) that on a proper construction of the regulations what he called ‘civil relief’ was not available to the applicants in the circumstances.
The aforementioned cases referred to by the respondent’s counsel each concerned claims for compensation under the lex aquilia. The plaintiffs in those matters had sought to establish wrongfulness on the basis of a breach or non-compliance by the respective defendants of a statutory duty. The most recent judgment in this line of cases is that of the Constitutional Court in Steenkamp v Provincial Tender Board of the Eastern Cape Case CCT 71/05, handed down on 28 September 2006. The courts declined to entertain the plaintiff’s delictual claims for compensation in the matters referred to by Mr Irish, holding that the scheme of the relevant statutes limited the plaintiffs to availing of other types of remedy, such as domestic appeal or judicial review. The decisions in those cases were, in the respects currently relevant, based primarily on reasons of legal policy.
While being astute to the distinction which might fall to be drawn between a damages case and a claim for an interdict, Mr Irish nevertheless contended that the principles discernible from a consideration of the aforementioned judgments were applicable to the application for an interdict in this matter by parity of reasoning. I, however, think that Mr Fitzgerald SC who, together with Mr Smalberger, appeared for the Applicants, was right when he submitted that the matter must be approached on the basis of the principle stated in Patz v Greene & Co 1907 TS 427, read with Roodepoort-Maraisburg Town Council v Eastern Properties (Prop.) Ltd 1933 AD 87, at 95-6, viz. that when it appears that a statute was enacted in the interests of a particular person or any class of persons, a party who shows that he or she is one of such persons or such class of persons and seeks judicial intervention by way of the grant of interdictory relief premised on the Act is not required to show harm as a result of the contravention of the statute, such harm being presumed. But that when a statutory duty was imposed not in the interest of a particular person or a particular class, but in the public interest generally, the applicant must show that he or she has sustained, or apprehends actual harm in order to obtain interdictory relief on the grounds of a breach of the statute.
In determining into which, if either, of the aforementioned categories of legislation the noise control regulations fall, it is relevant to consider the provision in the ECA in terms of which they were made. Section 25 of the ECA provides:
‘25 Regulations regarding noise, vibration and shock