NUISANCE AND RELIGION
Nuisance – Right to undisturbed use and enjoyment of own property is not unlimited – Reasonable interference is to be expected depending on the circumstances in a specific neighbourhood – Oversensitivity or personal peculiarities do not serve as a standard for reasonableness – Whether the interfering conduct is constitutionally guaranteed is a relevant consideration.
Madrasah Taleemuddeen Islamic Institute v Ellaurie [2022] ZASCA 160 at [11]-[19]
Facts: Mr Ellaurie lives about 200 metres from the Madrasah in Isipingo Beach where there is a mosque. Five daily prayers are performed in the mosque, preceded by the Azaan call, which is delivered by a Muadhin, to remind people of the Islamic faith to come to prayer. Mr Ellaurie complained that the Azaans invaded his personal space and that they happened at an unearthly time, the first being around 03h30 at the start of summer. He also complained that they gave a distinctly Muslim atmosphere to the area.
Appeal: The Madrasah appeals against the High Court interdict that the Madrasah had to ensure that the Azaan would not be audible within the buildings on Mr Ellaurie’s property.
Discussion: A limited interference with property rights and enjoyment thereof by owners of other properties in the same neighbourhood is expected and acceptable in law. Mutual tolerance is a civic value that is restricted by the legal yardstick of reasonableness. Mr Ellaurie placed himself within the realm of a specially or extraordinarily sensitive complainant. The reasonableness of the Azaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach.
Findings: The Constitutional Court confirmed the universal right to a religion of choice, the right to manifest openly that or any other religion, and freedom from restraint when observing or manifesting a religious belief. The reasonableness assessment in this case had to take into account and balance the countervailing constitutional rights. There was no room for these considerations in Mr Ellaurie’s convictions. His motivation for pursuing litigation was not advancement of constitutional justice, but rather his dislike of Islam.
Order: The appeal is upheld and the order of the High Court replaced with one dismissing the application.
DAMBUZA ADP (GORVEN JA, HUGHES JA, MUSI AJA and DAFFUE AJA concurring.)
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SLIP AND FALL AT MCDONALD’S – DISCLAIMER NOTICE
Delict – Slip and fall – While leaving premises – Disclaimer notice – Whether the area was wet – Size, wording and visibility of the disclaimer notice – Consumer Protection Act 68 of 2008, s 49.
Lombard v Mcdonald’s Wingtip [2022] ZAGPPHC 877 at [102]-[113]
Facts: Ms Lombard went to McDonald’s at the Wingtip Crossing Shopping Centre and on leaving the premises, she slipped and fell near the ramp area in front of the store entrance.
Claim: For the claim for damages, the court is to determine the issue of liability.
Discussion: The contentions that the store had a duty to keep the area dry or at least place warning signs and that it allowed customers to use a ramp that was inherently dangerous; whether the spot where the plaintiff fell was wet; that the store relies on a disclaimer notice which states that the defendant would not be liable for any loss and/or damages sustained to her person and/or property whilst on the premises for whatsoever reason; and the contention that by entering onto the premises and leaving same the plaintiff represented to the defendant that she agreed to be bound by and accepted the terms of the disclaimer notice.
Findings: Considering the location, size and visibility of the disclaimer notice and section 49 of the Consumer Protection Act 68 of 2008, there was nothing controvertible about the disclaimer notice’s wording. There was no ambiguity in the language used therein given that the language used is quite plain. The store has established that the disclaimer notice, which the court finds to be applicable and enforceable, absolves it of liability. Furthermore, the plaintiff failed to prove that the area was wet. The store was not negligent in the manner in which it both checked, detected and cleaned the area prior to the incident and the time when the incident occurred.
Order: The plaintiff’s claim is dismissed with costs.
VUMA AJ
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EQUALITY AND CONTRIBUTION TO COSTS
Family – Divorce – Contribution to legal costs – Gender-based inequalities – Right to equality – Right of access to courts – To be equal before the law, the parties require equality of arms – Rule 43 to be interpreted through prism of equality provision in section 9 of the Constitution.
H v H [2022] 44450-22 (GJ)at [89]-[105]
Facts: The couple previously lived a high lifestyle and there was intense acrimony in the divorce proceedings, with disputes over the exercise of their respective parental responsibilities and rights towards the children. The eldest child was 9, the second 6 and the third very young.
Application: In terms of Rule 43 for interim maintenance and a contribution to legal costs.
Discussion: The high level of acrimony; that the level of hatred towards each other remains at a toxic level and that the children are the casualties in this scenario and are the worst affected; that the respondent is a man of considerable means, being a highly successful businessman; contributions to legal costs; section 9 of the Constitution and the right to equality; section 34 and the right of access to the courts; the exercise of judicial discretion; context and the gender-based inequalities that characterise Rule 43 applications; and what effect the constitutional imperative of “equality of arms” has on Rule 43 applications.
Findings: Interpreting and applying Rule 43 through the prism of the Constitution means that it is possible for one spouse to be entitled to a claim for all her legal costs. The question is whether the wife is able to defend her case with an arm that is as long and a purse that is as deep, and whether she has an equal opportunity to have her voice heard. To be equal before the law, the parties require equality of arms.
Order: The respondent is ordered to pay an amount of R830,000 as a contribution towards legal costs within 10 days of the order.
VICTOR J
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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