Reasonably remediate nuisance: Curbing criminals

Note: Footnotes omitted, emphasis added and certain personal details redacted to comply with law.

Introduction

[1] The applicant is the body corporate of a sectional title scheme, The Six, developed on erf 1[….]4, Cape Town, also known as Sydney Street, Zonnebloem, which as I understand it comprises of a few hundred units. The applicant has been duly authorised to launch this application by all of the owners in the scheme.

[2] The respondent (“the City”) is the registered owner of neighbouring properties, being seven undeveloped erven forming a large open field as well as a parking lot (which, for sake of convenience, I will refer to as “the site” save where otherwise indicated). The site is situated on the corner of Sydney and Keisergracht Streets, Zonnebloem, and forms a border between the applicant’s units and the Cape Peninsula University of Technology (“CPUT”).

[3] The site is located in District Six and the erven which comprise it are subject to land claims instituted in terms of the Restitution of Land Rights Act (“LRA”). The erven have been awarded to the successful claimants in terms of a framework agreement concluded on 26 November 2000 between the City, the Department of Land Affairs and the District Six Beneficiary Trust under s 42D of the LRA. Clause 10 of the framework agreement provides inter alia that the City shall remain the registered owner of the site until such time as it is transferred to the successful claimants. Despite the elapse of over 22 years transfer of the site has still not taken place.

[4] Since the latter part of 2017 the applicant as well as a number of unit owners have been engaging with the City in an attempt to obtain assistance in relation to what is happening on the site. In short, the applicant’s case is that in its current state, the site as well as the activities being conducted thereon by various persons, including the homeless, constitute a societal health, environmental and safety risk.

[5] Although the City raised various technical arguments about hearsay in relation to the applicant’s factual allegations, nothing much turns on this. In its answering affidavit the City’s deponent accepted that the allegations:

‘20. …in some measure, may have some basis in fact.

21. It is an unfortunate reality that the vacant erven in District Six, in close proximity to the CBD, pose a unique problem in that these properties serve as magnets for the landless and socially marginalised segments of the community. Illegal occupation, vagrancy and associated social problems are a persistent problem in the area…’

[6] In its revised relief the applicant seeks a final interdict against the City directing it to take all steps reasonably necessary to:

6.1 clear the site of the illegal occupants thereon, including but not limited to the institution of legal proceedings for their eviction if they fail and/or refuse to vacate the site having been instructed to do so;

6.2 clear the site of all illegal structures and debris accumulated thereon;

6.3 abate and remediate the nuisance on the site;

6.4 ensure that the site is not used in a manner that contravenes any law or bylaw;

6.5 fence off the site (excluding one of the erven which is the parking lot);

6.5 take the above actions within 6 months from date of this court’s order; and

6.6 conduct inspections twice per week to ensure that the fence is not breached and that no illegal occupation of the site recurs.

[7] The applicant also asks that should the City fail to comply with the above, it be given leave to set the matter down on the same papers duly supplemented, for further consideration and/or relief (the structural interdict component).

. . . .

[33] In Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home Affairs and Others 2010 (5) SA 367 (WCC) [per Owen Rogers AJ] [followed [per LR Adams J] in Mayfair Residential Association v City of Johannesburg Metropolitan Municipality 2021 JDR 1957 (GJ)] the applicant sought to interdict the respondent from operating a refugee office on its neighbouring property on the bases that:

• • (a) the use of the property contravened the City’s zoning scheme; and
  • (b) the refugee office constituted a common law nuisance.

The applicant’s complaints included noise interference, health concerns and safety and security issues.

The court found that the state is bound by its own zoning schemes:

‘[100] Under the Constitution a foundational value of our country is the supremacy of the Constitution and the rule of law (s1(c)). The notion of a State which is not in general bound by legislation strikes one as antithetical to the rule of law. Even more anomalous is the proposition that the State in this country should, in its various manifestations under the Constitution, be assumed not to be bound by legislation merely because this was the position of the Crown developed over hundreds of years by the common law of England. Furthermore, the presumption does not appear to sit comfortably with the constitutional regime for the legislative competencies of the various spheres of government.

The legislative powers of the national, provincial and municipal legislatures are powers conferred on them directly by the Constitution; the provincial and local legislatures do not exercise powers notionally delegated to them by national government (cf City of Cape Town and another v Robertson and Another 2005 (2) SA 323 (CC) paras 53-60) per D Moseneke J].

Under common law, the proposition would have been that the Crown or State President in assenting to legislation was not thereby presumed to be agreeing that the State (whose head he or she was) should be bound.

But where (for example) a provincial legislature under our Constitution enacts a law within its competence and such law is assented to by the provincial premier, why should it be assumed that the provincial legislature was not intending thereby to bind (for example) the national government or municipalities within its area? And if those other spheres of government are bound, why not the province itself?…

[105] In accordance with the common law approach, the fact that legislation is in the public benefit is relevant but not sufficient to establish that the State is bound. Nor is it enough to show that the State would not be prejudiced if it were bound (Raats at 263B); the court must be satisfied that the objects of the legislation would be frustrated if the State were not bound.

Now the court can, I think, take judicial notice of the fact that the national and provincial governments are significant owners and users of land in the Western Cape (and indeed in the country as a whole). From a town planning perspective, the control over the utilisation of land customarily involves the allocation of the same use rights to all properties in a particular area so that one will have areas set aside for residential use, other areas for commercial use and yet others for industrial use, and so forth.

The purpose of town planning would, in my view, be frustrated if the State as a significant user of land were free to disregard zoning restrictions. Even if only a few pieces of land in a particular area were free to be used by the State contrary to the zoning for that area, the character of the area and the welfare of the members of the community in that area would be jeopardised and the planning objectives of the local authority (as approved by the province) frustrated.’

[34] I am in agreement. To my mind the City has either misconceived its obligations or is seeking to hide behind the fact that since its own officials are not conducting the activities it is not obliged to do anything to curb them.

The City’s stance fails to recognise its constitutional obligation to all citizens in its area of responsibility, and it has failed to advance any basis upon which it could be concluded that its decision not to properly enforce its own by-law is rational or excusable.

While it is so that it has taken a policy decision to postpone the eviction of the unlawful occupiers (which cannot be interfered with in these proceedings for the reasons already given) this does not mean that it can simply abrogate its other responsibilities.

. . . .

Nuisance at common law

[56] In Intercape the court explained “nuisance” as follows:

‘[142] In the context of the present case, the term “nuisance” connotes a species of delict arising from a wrongful violation of the duty which our common law imposes on a person towards his neighbours, the said duty being the correlative of the right which his neighbours have to enjoy the use and occupation of their properties without unreasonable interference.

Wrongfulness is assessed, as in other areas of our delictual law, by the criterion of objective reasonableness, where considerations of public policy are to the fore (see, generally,

• East London Western District Farmers’ Association and Others v Minister of Education and Development Aid and Others 1989 (2) SA 63 (A) at 66G-68A [G Hoexter JA];
• Dorland and Another v Smith 2002 (5) SA 374 (C) at 383B-C and 384A-C) [per Comrie J].

For a recent statement by this court of the factors which typically fall to be assessed in determining reasonableness, see Laskey and Another v Showzone CC and Others 2007 (2) SA 48 (C) paras 19-21 [per AG Binns-Ward AJ]; see also LAWSA Vol 19 (2nd Ed) paras 173-185.

[143] Since the applicants in the present case do not claim damages but an interdict in respect of an allegedly ongoing nuisance, fault on the part of the Department and Cila is not an element of the cause of action (see Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 106A and 120G).’

[57] In the present matter there is no genuine dispute that the unlawful occupants of the site are conducting the activities of which the applicant complains.

In Mayfair [per LR Adams J] the following was said:

‘[36] Neighbours have the right to the use and enjoyment of the property that they occupy or upon which they reside… Additionally, section 24(a) of the Constitution provides that the applicant has the right to an environment that is not harmful to their health or wellbeing. In order to determine whether a nuisance is actionable the question before me is whether the nuisance is unreasonable and cannot be expected or tolerated in the circumstances. This requires a test not only of what a reasonable person would tolerate, but more importantly “an objective evaluation of the circumstances and milieu in which the alleged nuisance has occurred”…

[37] In making this determination the court may take into account any relevant factors, including the type of locality in which the nuisance emanates…’

[58] In the present matter, the nature, extent and persistence of the activities complained of on land adjacent to the units of the applicant can only lead to one reasonable conclusion, namely that the activities give rise to a nuisance that the applicants cannot reasonably be expected to tolerate.

This is exacerbated by the fact that the City is unable to provide the court with any concrete indication of when the nuisance is likely to abate as a consequence of the unlawful occupants being evicted from the site.

[59] The nuisance complained of is similar to that in Redefine Properties Ltd v The Government of the Republic of South Africa and Others 2022 JDR 0777 (29258/2021) [2022] ZAGPPHC 62; 2023 (1) SA 226 (GP) (9 February 2022) (GP) [per K Manamela AJ].

The adjacent property was vacant, save for unlawful occupation which began in 2018. As in the present case, there was no access to running water, sewage disposal or any other amenities. The applicant considered the living conditions and activities of those on the adjacent property to be a nuisance as well as a health and fire hazard.

[60] It stated that it generated income from its property and would likely suffer significant financial loss should its tenant terminate the lease agreement due to the unlawful occupation of the adjacent property. It was also alleged that the condition of the adjacent property posed a threat to the safety of both the applicant’s tenant and the unlawful occupiers themselves. It sought an order, inter alia, directing the respondent to abate the nuisance.

The court held:

‘[36] I find that the applicant has established that there is a nuisance of a private nature occurring on the Adjacent Property. But it does not really make any difference if the nuisance could also be classified as a public nuisance. The nuisance interferes with the applicant’s use and enjoyment of the Property (or those occupying the Property with the applicant’s consent) due to the interference with the comfort of human existence on the Property.

The applicant’s tenant on the Property cannot inhabit and occupy the Property in the physical comfort, convenience and wellbeing due to the violations stated above emanating from the Adjacent Property. The interferences are beyond what the tenant of the Property or the applicant can be expected to tolerate. The nuisance ought to be remedied.’

Entitlement to interdictory relief

[61] Given the above analysis I am persuaded that the applicant has established a clear right to the City’s adherence to the relevant provisions of the Constitution and its own by-laws. It has also established a clear right under the common law to prevent the continuation of the nuisance occurring on the site.

[62] The applicant has also shown an injury committed or reasonably apprehended. The injury (or infringement) is ongoing. Given what appears to be the increasing gravity of the situation, it is fair to accept the applicant’s contention that it will not be long before circumstances arise in which serious bodily harm to one of its members or property is caused.

[63] Not even the City seriously suggests that the applicant has any alternative satisfactory remedy at its disposal. The best it could come up with, raised for the first time on the second day of argument when it had also appointed senior counsel, was that the applicant should approach the City Ombudsman in terms of the City Ombudsman By-law for the purpose of having the latter assist the City in fulfilling its obligations.

[64] The requirements for final interdictory relief have thus been met. However the applicant fairly acknowledges that the most appropriate remedy would be a structural interdict. In my view this would afford a reasonable opportunity for the City to determine and take appropriate remedial steps while at the same time the court’s order would not interfere with the policy decision made by the City in respect of the eviction of the unlawful occupants of the site. The order that follows attempts to properly address this.

Costs

[65] In its notice of motion and founding affidavit the applicant sought costs on the ordinary scale. After having received the answering affidavit and perusing the City’s case in the application under case number 7349/2021, the applicant decided to ask for costs on the attorney and client scale. The reasons advanced in its replying affidavit were as follows.

[66]

• First, the applicant represents a group of individuals utilising their after-tax income to approach court for an order compelling the City to uphold the Constitution after years of largely fruitless engagement.
• Second, this application was threatened, in very specific detail, following a lengthy process of individual complaints, and the City did not even afford the applicant the courtesy of a response.
• Third, after having to incur legal costs to launch this application the City’s response was woefully inadequate.

In these circumstances the applicant submits that anything short of an award of attorney and client costs will cause it to be unfairly out of pocket.

[67] In my view most of the applicant’s submissions on this score have merit. In addition, although the order of 24 November 2022 granted the City leave to file a supplementary affidavit on specific limited issues, as the applicant correctly points out, the affidavit that followed also raised other matter. The applicant was thus obliged to deal with that as well which resulted in it incurring yet further costs.

[68] This is not one of those cases where, for example, a private individual is aggrieved by the City’s refusal to approve building plans. The applicant’s members have demonstrated that throughout they have been as reasonable and accommodating towards the City as possible, and that this application was really a last resort. The applicant should thus not be out of pocket as far as reasonably possible, given also that it has been substantially successful.

[69] In the result the following order is made:

1. Subject to paragraph 2 below, the respondent is directed, by no later than FRIDAY 27 OCTOBER 2023, to take steps to abate and/or reasonably remediate the nuisance on erven 9[….]3, 1[….]4, 115713, 115716, 1[….]7, 1[….]8 and 1[….]0, Cape Town (“the site”), which is interfering with the use and enjoyment of erf 1[….]4, Cape Town on which The Six Sectional Title Scheme No SS 4[….]9 (“the property”) is situated;

2. The abatement and/or remediation referred to in paragraph 1 above is directed at curbing the criminal activities on the site as well as directing the respondent to comply with the Environmental Health By-law (PG 6041 dated 30 June 2003), the Community Fire Safety By-law (PG 5832 dated 28 February 2022 as amended), and the Integrated Waste Management By-law (PG 6651 dated 21 August 2009 as amended), so that the use and occupation of the site does not continue to pose a threat to the safety and wellbeing of those occupying the property as well as safeguarding the property itself;

3. The respondent is directed to provide the applicant’s attorney of record with a written report of the steps taken in accordance with paragraphs 1 and 2 above by no later than FRIDAY 17 NOVEMBER 2023;

4. The applicant is granted leave to approach court thereafter on the same papers, duly supplemented where necessary, for further or alternative relief; and

5. The respondent shall pay the costs of this application on the scale as between attorney and client, including any reserved costs orders and the costs of two counsel where so employed.

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