THE JUDGEMENT OF VAN DER MERWE V DRENCHED BOXING (PTY) LTD

This matter is about the return date of a rule nisi for the granting of a final interdict.

The Applicants in this matter are occupants of a building in Cape Town, and the First Respondent, Drenched Boxing (Pty) Ltd (“the gym”), is a gymnasium operating in the same building.

In December 2020, an interim interdict was obtained against the gym, restraining it from amplifying any music or using voice amplification. The premises of the gym is zoned for commercial use, however the Applicants complained that the gym’s classes, which start at 6am, wake them up six days a week, as their bedroom window is only a metre away from that of the gym.

Several complaints were made to the gym regarding the noise. The City of Cape Town also issued an official warning. However, the noise did not abate. The Applicants subsequently applied for an interim interdict against the gym.

After the interim interdict was granted, it came to light that, before the interim interdict, the gym had hired sound technicians to conduct a noise assessment, but the Applicants where never informed of this. The sound technicians recommended certain steps be taken to reduce the noise, and such steps were taken subsequent to the interim interdict.

The Applicants contracted another sound technician after the noise-reduction steps were taken by the gym. The Applicants’ hired sound technician concluded in a report that the noise-reduction steps were not sufficient and that there was no reason to use a microphone to amplify speech. The report further recommended that limiters be installed to limit the overall volume and that the unused loudspeaker should be removed.

The subsequent report conducted by the sound technicians hired by the Applicants resulted in a dispute of fact, but the court did not consider this dispute of fact as it stated that motion proceedings are about the resolution of legal issues based on common-cause facts. The court further stated that this dispute of fact would not affect the outcome of the matter as it does not influence the requirements that need to be proved in order for a court to grant a final interdict.

The court looked at the following requirements for a final interdict:

i) There must be a clear right;

ii) An injury must have been committed or reasonably apprehended; and

iii) There must be no similar protection by any other ordinary remedy other than an interdict.

The Applicants had relied on the common-law right on neighbours’ nuisance, and the Noise Control Regulations. The common-law rights hold that everyone is, in general, permitted to use their property for any purpose they choose, provided that the use of the property should not intrude unreasonably on the use and enjoyment by the neighbours of their property.

In terms of the Noise Control Regulations, “noise nuisance” means any sound that impairs or may impair the convenience or peace of a reasonable person. The court held that a balance must be drawn between the Applicants’ right to peaceful enjoyment of their property and the gym’s right to make full economic use of its property. The court also stated that the Applicants’ right to use and enjoy their property must be viewed in the context of reasonable usage of a property that is located in the City of Cape Town. The building that the Applicants were occupying is a mixed-use building, meaning that business will be operating from the same premises. The court also stated that it is common cause that the building is located on a busy street with a lot of traffic noise.

The court then discussed whether an injury was actually committed. The court stated that if the wrongful act that gave rise to the injury had already occurred, an interdict was not applicable.

In order for an interdict to be applicable, the wrongful act giving rise to injury must either be of a continuing nature or there must be a reasonable apprehension that it will be repeated. The court noted that the Applicants are not entitled to interdictory relief if their sensibility to the noise is a manifestation of a too refined or sensitive disposition or an unreasonably low tolerance level. It seemed common cause that noise mitigation measures where indeed implemented. The court therefore held that it found no reason to believe that the wrongful act was ongoing. Therefore, the Applicants did not establish the element of an injury.

The court lastly discussed whether there were alternative remedies available to the Applicants. The First Respondent (the gym) argued that the Applicants had an alternative remedy, namely engaging with the Respondents to test the soundproofing. However, there was no merit to this argument as there was, on multiple occasions, correspondence between the Applicants and the First Respondent. The Respondent further argued that the Applicants should have approached the South African Police Service (SAPS) and laid a criminal complaint in terms of the Noise Control Regulations. The court did not view this as an alternative to an interdict as the existence of another remedy does not preclude the granting of an interdict where the proposed alternative does not afford similar protection to an interdict. Nevertheless, the court did hold that the procedure for the control of noise in terms of the Noise Control Regulations 10(3) and (4) was not followed. It was concluded that the Applicants failed to prove that all the requirements necessary for the granting of an interdict were met and, as a result, the court dismissed the matter. The Applicants were ordered to pay the costs of the First Respondent, save for the costs of the interim proceedings, which the gym had to pay, as it did not inform the Applicants of the noise report which it had acquired before the interim interdict was granted.