MUNICIPALITY – Land use – Noise nuisance
Complaints from students at university residence about noise from bars and nightclubs – Premises zoned as Business 1 allowing for use as place of refreshment – Terms of liquor licence cannot override the land use rights – Respondents interdicted from conducting business in violation of permissible land use rights as contained In Pretoria Town Planning Scheme – Interdicted from creating a noise nuisance and any noise in excess of noise levels permitted by land use rights.
Facts: The University of Pretoria alleges that the Jolly Roger and other respondents occupy premises in what is known as the “Strip” from where they operate bars and nightclubs. These establishments are all located along Lynnwood Road opposite the University campus. There are four residences located on the University campus which are allegedly affected by the noise emanating from the Strip. These residences house nearly 1,000 students. An acoustics expert was appointed to compile an environmental noise impact assessment and he was of the view that a noise disturbance had been created at two measuring points on the campus and that there had been a serious contravention of the Noise Control Regulations.
Application: Seeking an order interdicting the respondents from creating a noise nuisance in excess of the permissible noise levels permitted by the Land Use Rights, that they do not create a noise nuisance for the University and for its students and that they do not conduct any business from the premises which is in violation of the permissible Land Use Rights as contained in the Pretoria Town Planning Scheme.
Discussion: The so-called “authority” attack which is often employed by respondents regarding the deponent to the founding affidavit; that the Registrar was authorized to act for the University in launching the application; that the Jolly Roger concedes that the premises are zoned as Business 1 which only allows for the use of the premises as a Place of Refreshment and that it argued that the Town Planning Scheme allows for a secondary use of the premises as a Place of Amusement; and that many students have complained that they were unable to study or to sleep until the music abated in the early hours of the morning.
Findings: The Jolly Roger has taken substantial steps to mitigate the noise and, on the evidence of the experts, they seem to have succeeded. The claim for an interdict in respect of the noise nuisance must, as against the Jolly Roger, fail. The terms of the Jolly Roger’s liquor licence cannot override the Land Use Rights. The claim for an interdict against the violation of the land use rights by the Jolly Roger must succeed. A clause of the lease agreements of Jolly Roger and Latino’s Bistro provides that the tenants may not use the premises for illegal or improper purposes or cause damage or disturbance to the occupants of adjoining properties. The landowners were entitled to enforce compliance with this clause. Instead, they remained supine, and it is appropriate that an order be granted against them.
Order: The respondents are interdicted from conducting any business in violation of the permissible land use rights as contained in the Pretoria Town Planning Scheme and are interdicted from creating or allowing anyone to create a noise nuisance and any noise in excess of the noise levels permitted by the Land Use Rights. Seventh respondent is ordered to take all reasonable measures to ensure that second and third respondents do not create a noise nuisance.
CIVIL PROCEDURE – Prescription – Knowledge of minimum facts
Buyers purchased house with defects – Became aware of cracks that had been patched – Buyers contending that they became aware on receipt of letter from bank declining their insurance claim – When they became aware of identity of liable person among seller, insurer or builder – Had earlier knowledge of sufficient facts to cause them to believe that there had been attempts by the sellers to cover up latent defects in the property – Prescription Act 68 of 1969, ss 12(2) and 12(3).
Facts: Mr and Mrs Mokhethi (respondents) viewed the property of Mr and Mrs Stemmet (appellants) on two separate occasions. They were impressed with the condition of the property and an agreement of sale was concluded in May 2013 with a purchase price of R1,290,000 and a mortgage bond with Absa Bank. The property was transferred in July 2013 when respondents took occupation. Several months later they noticed structural cracks in several places. Absa declined their insurance claim on 12 August 2014 because “the defects were old and gradual, had been previously patched and were caused by the expansion and retraction of the clay upon which the property was built.”
Appeal: In their claim against the appellants, the magistrate’s court reasoned that the respondents could only have acquired the minimum facts to interrupt prescription on 12 August 2014 when Absa declined their claim and provided the reason for its decision. It dismissed the special plea of prescription and granted judgment against the appellants on the merits. In the appeal a third judge was called in and the full court was not unanimous. The majority dismissed the appeal, while the minority would have upheld the appeal.
Discussion: The majority found that in June 2014 the respondents could not have known whether their debtor was the appellants, the insurer or a builder. Conversely, the minority found that there could not have been a doubt that the appellants were liable either in contract or delict. In addition, having noticed the structural cracks, and informing Absa that the property was “falling apart” in June 2014 they were in possession of the minimum facts necessary to institute action. The question that arises is: when did the respondents become aware of the existence of the defects and the damages arising therefrom to satisfy section 12(2) of the Prescription Act 68 of 1969 and did they, at that stage, know the identity of the person responsible for their damage, to satisfy the requirement in section 12(3)?
Findings: As early as June 2014, the respondents were in possession of sufficient facts to cause them, on reasonable grounds, to believe that there had been attempts by the appellants to cover up latent defects in the property. The patchwork on the cracks was evident before the respondents lodged the claim with Absa and this would immediately have led to a reasonable belief that the respondents had fraudulently misrepresented the facts to them. That apprehension was sufficient to complete their cause of action against the appellants. They thus had knowledge of sufficient facts which would have led them to believe that the defects existed when they purchased the property from the appellants and that they were fraudulently concealed by them.
Order: The appeal is upheld such that the order of the magistrate’s court is replaced with one upholding the defendants’ special plea of prescription and dismissing the plaintiffs’ claim with costs.
WEINER JA (MAKGOKA JA, MATOJANE JA, MOLEFE JA and MALI AJA concurring)
LABOUR – Constructive dismissal – Discrimination on disability
Contends department failed to meet reasonable disability accommodation needs – Avers such conduct led to resignation – Evidence shows department complied with all requests – Always positively responded and attended to requests – No basis for conclusion that department failed in its obligations – No constructive dismissal took place – Claim fails and absolution granted – Labour Relations Act 66 of 1995, s 187(1)(f).
Facts: The applicant was employed by the Department in the position of Deputy Director: Race, Gender, and Disability. She is quadriplegic, having tragically been involved in a motor vehicle accident prior to her appointment by the Department. The Department has in place a policy on the provision and management of reasonable accommodation needs for employees with disabilities. The applicant had formally registered her disability and made a request for her reasonable accommodation needs by completing the relevant form. Her needs were essentially in the form of assistive technology; appropriate office space to accommodate her wheelchair according to specification; custom ablution facilities; ramped entrances and access to upper floors by lifts; and a personal assistant (PA) who would also be her driver.
Application: The applicant having resigned from the Department, seeks to declare her resignation amounted to a constructive dismissal. The basis of the claims was that her working conditions were intolerable, and effectively that she was discriminated against on account of her disability.
Discussion: The applicant contends that she was discriminated against based on the Department’s failure to immediately meet her reasonable accommodation needs as outlined. The essence of the applicant’s case is that the Department failed to take reasonable steps to accommodate her disability and that such conduct led to her resignation. She contends that since she did not voluntarily resign, this amounted to constructive dismissal, which dismissal in turn was automatically unfair based on her disability. The Department paid into the applicant’s account all the costs towards the services of the PA. The agreement was that the applicant would secure a PA and manage her, with the Department carrying all her costs in that regard. Her complaint however was that since a PA could suddenly decide to leave or be unavailable, the supervisor and the department ought to have accommodated her further by affording her more time off. However, at no stage was the applicant prevented from working from home. The requested needs regarding the provision of a PA were met.
Findings: From the moment the applicant commenced her employment and had made her reasonable accommodation needs known, at no stage did the Department turn down any of her requests, nor did it fail to attend to them. Evidence demonstrated that at all material times when she made requests, the Department was always responsive and sensitive to her needs. The non-availability of some of the needs at some point of the applicant’s employment cannot have been the source of her grievance to the extent that it can be concluded that it had made the working environment intolerable for her, leading her to resign. The applicant has not established prima facie evidence upon which court, having applied its mind reasonably to it, could or may find for her. The applicant’s evidence was incurably and inherently improbable and unsatisfactory to support her causes of action, and the court was obliged to reject it.
Order: The respondents’ application for absolution from the instance is granted. The applicant’s claim is dismissed.
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 Spartan Case Law
You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.