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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE HIGH COURT: GRAHAMSTOWN)

CASE NO.CA 57/2009

In the matter between

MONA WINGAARDT & 2 OTHERS Appellants

and

E. GROBLER & ANOTHER Respondents

_____________________________________________________________

JUDGMENT

_____________________________________________________________

ALKEMA J

[1] The issue in this appeal concerns the question whether or not the switching on of Christmas lighting in and outside her house in Jeffreys Bay by the Respondents constitutes a nuisance or disturbance of the Appellants’ right to free and undisturbed use and possession of their property. The Appellants sought a final interdict in the Humansdorp Magistrate’s Court for an order prohibiting the Respondents from switching on any Christmas lights at their home during the festive season, which order was refused by the Court a quo. The Appellants come on appeal to this Court against such refusal.

[2] The Appellants chose to proceed by way of application and not by way of action. Neither party applied for leave to refer the factual disputes to oral evidence, and both were content with the Court making factual findings on the papers.

[3] It is now trite that in an application for a final interdict on papers without resorting to oral evidence, the facts as stated by the respondent together with the admitted facts in the applicant’s affidavit constitute the facts upon which the application is to be adjudicated; subject to the two qualifications that, firstly, a mere denial by the respondent of a fact alleged by the applicant may in certain circumstances not raise a real, genuine or bona fide dispute of fact; and secondly, where the denials or allegations of the respondent are “… so far-fetched or clearly untenable, that the Court is justified in rejecting them merely on the papers” (Plascon-Evans Paints v Van Riebeeck Paints [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C).

[4] It is necessary to refer briefly to the parties. The application papers refer to three applicants (now appellants) and two respondents, who are also the respondents on appeal. The Respondents are husband and wife. They live at 3 Nell van der Poll Street, Jeffreys Bay. That is the address from which the alleged nuisance emanated. The First Respondent is the signatory to the main opposing affidavit. Her husband gave notice of intention to oppose, but he did not make an opposing affidavit because he was away at sea as a commercial fisherman when the application was launched. The First Respondent is the de facto respondent. A reference in this judgment to the Respondent in the singular should be understood to refer to her unless the context shows otherwise.

[5] The First Appellant/Applicant resides with her husband (who is not a party) at 5 AD Keet Road, Jeffreys Bay which is diagonally across the road from the Respondents’ home. The Second and Third Applicants are husband and wife. They live next door to the Respondents. The protagonists in this litigation are the First Appellant and the First Respondent. For reasons which are given below, I shall refer in this judgment to the First Appellant as the Appellant.

[6] Before dealing with the facts, there are two features of a procedural nature which call for comment.

[7] First; the founding affidavits of both the Second and Third “Applicants” (now “Appellants”) are not attested.

[8] An affidavit is a written statement sworn to before a commissioner of oaths. An oath is administered in terms of the Regulations made in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act No 16 of 1963. In terms of Rule 6 (1) of the Rules of this Court, a notice of motion must be supported “by an affidavit as to the facts upon which the applicant relies for relief”. As such, an affidavit constitutes the factual evidence before a Court upon which the matter is to be adjudicated. See: Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200D. The same principle applies in the Magistrate’s Court. (Jones & Buckle, The Civil Practice of the Magistrates’ Courts in South Africa (Vol 2) (9^th Ed.) 55-12A). It follows that if there is no affidavit before a Court in application proceedings in support of the relief claimed, there is no evidence upon which the relief can be granted.

[9] It is trite that in certain circumstances a Court has the discretion to condone strict compliance with the regulations prescribing the administration of oaths, but where no oath was administered, there is no evidence before the Court and the unattested statement is pro non scripto and incapable of condonation. The Second and Third “Appellants” are accordingly not before this Court, and they were also not before the Court a quo.

[10] Second; and by consent between the parties, the Court a quo on 26 March 2008 made an order admitting further supplementary (“aanvullende”) affidavits from the First and Second “Appellants” (as applicants). This resulted in a further set of answering and replying affidavits from the Respondents and “Appellants” respectively.

[11] The application for the filing of a further set of affidavits was motivated by the “Appellants” on the strength of the happening of certain events after 12 December 2007 which were said to be of material interest (“wesenlike belang”) to the hearing of the application. It is of some import to note that the further set of affidavits filed by the First and Second “Appellants” were not intended to supplement or substitute the original founding affidavits – the parties expressly agreed not to term the further affidavits as “founding affidavits” but rather as “supplementary affidavits”. In consequence, the Second “Appellant” remained without a founding affidavit capable of being supplemented and the consent order of 26 March 2008 had no effect on and did not cure his lack of a founding affidavit in the proceedings, and nor did it introduce him as a party to the proceedings.

[12] In regard to the First (remaining) Appellant, her first replying affidavit is dated 11 December 2007 and was filed and served before the events occurred which are described in the Appellant’s supplementary affidavits. As such litis contestatio had already occurred when the further affidavits were filed, which merely served to open fresh factual issues.

[13] In application proceedings, the three sets of affidavits (founding, answering and replying) have a dual purpose: first, they constitute the evidence before the Court and play the same role as oral evidence in action proceedings; and second, they define the issues (both factual and legal) which result in litis contestatio between the parties in the same way as pleadings in an action. I believe it is essentially for this reason, as a general rule (there are exceptions), that an applicant is required to stand or fall by his or her founding affidavit and is not generally allowed to supplement his or her founding affidavit by adducing new facts in a replying affidavit. This much is trite; see Erasmus, Superior Court Practice at B1-45 and the cases cited in footnote 9.

[14] To hold otherwise will result in allowing parties to continually present new or fresh evidence to court as and when it pleases them and when it becomes available, resulting in unwieldy and never-ending trials and applications and a blurring of factual and legal issues. It is certainly not in the interest of justice to allow such a practice, even by agreement between the parties. I will shortly again return to this issue.

[15] Like most rules and principles in law, there are often exceptions to the general rule. Attempted definition of the ambit of the Court’s discretion to allow further affidavits is neither easy nor desirable, as was said by Holmes J in Milne NO v Fabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65A:

“…It is neither necessary nor desirable to say more than that the Court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and that basically it is a question of fairness to both sides.

This approach was confirmed by Ogilvie Thompson JA in James Brown & Hamer (Pty) Ltd v Simmons NO 1964 (4) SA 656 (A) at 660 D-G.

[16] Generally, a fourth set of affidavits will not be allowed unless there are “essential” or “special” circumstances which will justify a further set. See: Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa (5^th ed.) Vol. (1) p.439; South Peninsula Municipality v Evans 2001 (1) SA 271 (C) at 283 A-H; Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N) at 38J-39A.

[17] I do not believe that “essential” or “special” circumstances exists which justified the filing of a fourth set of affidavits. The bulk of the evidence contained in the further affidavits by both parties is irrelevant to the legal issues under consideration. They refer mainly to petitions from the public expressing popular support for a particular point of view. Lengthy newspaper clippings and articles are attached expressing views and opinions of private individuals, and containing reports on the feud between the parties. The affidavits abound with personal attacks on opposing parties and witnesses, and contain endless repetition.

[18] Although public policy and the interest of society are relevant considerations (more about this later), public opinion and popular support are not tantamount to public policy; and public interest is conceptually very different from public opinion. Legal principles and laws are not established by popularity contests – the death penalty is an example. The factual allegations in the newspaper reports on the merits are disputed, and do not constitute admissible evidence in a Court of law.

[19] In Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) at 439G-H Schutz JA remarked:

“There is one other matter that I am compelled to mention ^________ replying affidavits. In the great majority of cases the replying affidavit should be by far the shortest. But in practice it is very often by far the longest ^____ and the most valueless. It was so in these reviews. The respondents, who were the applicants below, filed replying affidavits of inordinate length. Being forced to wade through their almost endless repetition when the pleading of the case is all but over brings about irritation, not persuasion. It is time that the Courts declare war on unnecessarily prolix replying affidavits and upon those who inflate them.

[20] In Van Zyl v Government of South Africa 2008 (3) SA 294 (SCA) at 307 G-H, Harms ADP (as he then was), after quoting Schutz JA, said:

“A reply in this form is an abuse of the court process and instead of wasting judicial time in analyzing it sentence by sentence and paragraph by paragraph such affidavits should not only give rise to adverse costs orders but should be struck out as a whole … … mero motu.”

[21] The affidavits under consideration are not only wholly divorced from a reply to the first set of answering affidavits, but they also contain irrelevant and inadmissible material not contributing anything to the legal issues.

[22] In the circumstances, I believe this Court has the duty to mero motu strike out all affidavits and annexures filed and served in this application after the filing and service of the First Appellant’s first set of replying affidavits dated 11 December 2007.

[23] It follows from all of the aforesaid that this appeal is to be adjudicated only on the First Appellants’ set of founding and replying affidavits together with the Respondents’ first set of answering affidavits.

[24] Applying the Plascon Evans rule (supra) to the aforesaid affidavits, the following facts emerge from the papers.

[25] Jeffreys Bay is a popular holiday and sea-side resort in the Eastern Cape. It is well known for its surfing conditions and moderate climate, and attracts sun-seekers and holiday makers from throughout the country and also from abroad. Although it has many permanent inhabitants, it also has a large number of holiday homes near the beaches which are only occupied during the festive seasons and school holidays. Many of the permanent inhabitants are elderly pensioners.

[26] An unavoidable consequence of the above is the increase to capacity of the population and vehicular traffic during the months of December and January of each year, with the resultant increase of noise levels during that time of the year. These consequences are reasonably expected and tolerated by the permanent inhabitants of Jeffreys Bay.

[27] The Respondent resides with her husband at No. 3 Nell van der Poll Street in the suburb of Wavecrest, Jeffreys Bay. They are tenants of the property and have been residing there since December 2001. It appears from one of the photos attached to Respondent’s answering affidavit that Nell van der Poll Street is relatively close to the sea and beaches.

[28] Since November 2004 the Respondent and her husband have been decorating the exterior of their double storey home with Christmas lights and various other Christmas decorations. The string of lights follow the contours and apex of the upper roof and gables, and then run along the facias of the lower roof, to eventually extend into the garden, decorating trees and a number of smaller hand-made decorations such as images of stars, trees and also that of a Christmas Father. In addition, a “live” Christmas Father was also present. The decorations and lightings create an atmosphere of festive cheer and Christmas spirit and, not surprisingly, attract locals and visitors alike to view the spectacle. Parents take their little children to see and experience the festive spirit and the children become enthralled by the live “Father Christmas” sitting and walking in the front garden. Of course, the noise levels caused by vehicles stopping and starting and by people talking and laughing, increase.

[29] It appears that from 2004 a custom developed whereby parents would surreptitiously leave Christmas presents for their children with the “Father Christmas,” and then take the children on Christmas eve or Christmas day to the house to collect their presents from him. In addition, sightseers are invited to make monetary donations which are used by the Respondent to support two charity organizations, namely the St Francis Hospice (Kouga) and the Hankey Children’s home. This much is common cause. These factors nevertheless contribute to the increase of activity and noise levels.

[30] The Appellant (Applicant in the court a quo) is an elderly retired housewife and pensioner who lives with her husband, also a pensioner, in their home which is situated diagonally opposite that of the Respondent; or put differently, directly opposite the immediate neighbour of the Respondent. The Appellant’s house fronts on AD Keet Street (which intersects Nell van der Poll Street) and is situated on the corner of Nell van der Poll Street (where the Respondents live) and AD Keet Street. Nell van der Poll Street runs roughly from east to west and AD Keet Street from north to south.

[31] It appears that the living area of the Appellant’s home fronts on AD Keet Street, but the main bedroom fronts on and looks out to Nell van der Poll Street, where the Respondents live. A photo taken from the Respondents’ home in Nell van der Poll Street of the Appellant’s home show that a massive tree obscures most of the rear side of the Appellant’s home where the bedroom is situated.

[32] AD Keet Street is a busy thoroughfare and vehicular traffic in both AD Keet and Nell van der Poll Streets increase dramatically during the festive period of December and January of each year. Such increase is compounded by the activities at the Respondent’s residence.

[33] In the past, the Respondent switched the lights on from 1 December until the end of the first week of January. Since litigation started, in an apparent attempt to settle the dispute, she undertook to and did switch the lights on only on 14 December until the end of the first week in January. The lights are switched on at 19h00 and are switched off no later than 23h00 each evening. This remains the prevailing situation.

[34] All of the aforesaid are either common cause between the parties or not seriously disputed by the Respondent. The gravamen of the dispute, as I said at the outset, concerns the extent of the added noise and disturbance levels to the Appellant caused by the Respondent’s activities. The Appellant alleges that the consequences of the Respondent’s actions are “catastrophic” to the “peace and quiet” expected from any occupier of a home in a residential area. She describes the noise levels as an “absolute nightmare”. She states that vehicle engines are regularly switched on and off and that vehicles pull off and stop with great noise; that Christmas Fathers noisily move about on the street between the vehicles to collect donations; that the festivities have developed in a “street-party” in front of their home; that people litter the street; and that as a result she and her husband are unable to sleep and are deprived of their peaceful use and enjoyment of their own property.

[35] The Respondent denies the aforesaid allegations. Although she admits to an increase in the noise levels, she says the Appellant’s description thereof is exaggerated and is no more than what can reasonably be expected. She denies that “Christmas Fathers” move into the street and states that since 2005 only one “Christmas Father” is present who does not move from the front porch of her house. She admits that some vehicles stop and move off again after children have visited “Christmas Father” to collect their presents, and that people make donations to charity in the process. She vehemently denies the suggestions of a “street-party” and littering in the street, and concludes that the increased noise levels are well within reasonable limits and therefore that the Appellant and her husband are not unreasonably deprived of their use and enjoyment of their home comforts.

[36] In addition, the Respondent is supported in her allegations and conclusions by two neighbours, one of whom lives together with his wife directly opposite the Respondent. These witnesses both state that they are not at all inconvenienced. They say their bedroom and lounge windows look directly upon the Respondent’s premises, and when they draw the curtains they are unable to see the lights and can watch television and sleep without interference from the activities outside. They admit to a slight increase of vehicular traffic and noise in front of their home, but state that it has no effect on their “peace and quiet” and does not negatively affect their use and enjoyment of their own home. They support the Respondent in her case.

[37] In conclusion, the Respondent has also put up affidavits from representatives of the two charity organizations which benefit from the donations. Needless to say, they also support the Respondent’s case.

[38] As I remarked earlier in this judgment, the Appellant has elected not to refer the factual disputes to oral evidence and she is content to dispose of the case on affidavit. Much of the evidence on affidavit constitutes subjective views and opinions and there is very little, if any, empirical evidence from which the decibel value of the noise and disturbance levels can be judged. As stated, in these circumstances and in the absence of the two exceptional circumstances, the Plascon rule must be applied and the case must be decided on the Respondent’s version, together with facts put up by the Appellant which the Respondent is not able to dispute.

[39] Ignoring, as I believe I should, the subjective views and opinions of the Respondent and her witnesses, there is no doubt that the noise levels caused by vehicular traffic and its occupants increase substantially in Jeffreys Bay during December and January of each year. Those levels are further raised by the activities caused by the Respondent and described above. The issue is whether such increased noise levels constitute an infringement of Appellant’s property rights.

[40] Despite the absence of any credible objective evidence concerning the extent of the disturbance created by the increased noise, the Court must do its best to establish such extent, and measure it against the extent to which the law allows a property owner or occupier such as the Respondent to use and enjoy his or her own property.

[41] It is common cause that the onus is on the Appellant to establish that the Respondent has exceeded the bounds of reasonable use and enjoyment of her property and, as such, caused a nuisance and disturbance to owners of neighbouring properties, including the Appellant. I believe the proper approach to this case is therefore to first establish the bounds or limits required by law for the use and enjoyment of one’s own property; and then to determine whether or not the Appellant has shown on a balance of probability that the Respondent has exceeded those limits.

[42] In De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) at 191E-G Miller J (as he was then was) referred to the leading case of Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (AD) and formulated the principle thus:

“The principle in our law is this: although an owner may normally do as he pleases on his own land, his neighbour has a right to the enjoyment of his own land. If one of the neighbouring owners uses his land in such a way that material interference with the other’s rights of enjoyment results, the latter is entitled to relief.”

[43] The difficult question is to determine when such “material interference” arises. In the absence thereof, there is no infringement of the appellant’s right and the Respondent’s conduct cannot be held to be wrongful.

[44] The case law dealing with limitations on property rights by neighbouring owners, and with nuisance and disturbance in particular, offer many and wide ranging guidelines in determining an unlawful infringement of a property right. The guidelines refer to concepts such as reasonableness, fairness, the boni mores and legal convictions of society, the need to employ an objective test and to decide each case on its own merits, and so forth. These concepts, familiar as they are to the legal mind, remain vague, uncertain, and very often result in conflicting judgments and are difficult to apply (more about this later). This difficulty, in my respectful view, can be overcome by simply applying basic legal principles.

[45] The so-called “nuisance law” remains part of the law of delict and must be treated as such. It is trite that the five elements of a delict are (1) conduct; (2) which is wrongful and unlawful; (3) committed either negligently, or intentionally (fault); (4) which caused the harm or loss complained of (causation); and (5) resulted in actionable harm, loss or damage. In casu, the enquiry is into the second element of the delict; namely the issue of wrongfulness ^______ the presence of the other elements being common cause.

[46] I do not think it is prudent for purposes of this judgment to indulge in a long discussion on the meaning of delictual wrongfulness, but it is nevertheless necessary to make the following observations.

[47] It is, I believe, an accepted principle of jurisprudence and of sociology that a necessary prerequisite for the peaceful, harmonious and orderly co-existence of any community is an organized, structured society governed by a code of conduct on the part of its members. In the absence of an organized and structured society, chaos and anarchy will prevail. Such code of conduct necessary for a structured community is informed by the values and norms of society, and by its moral, ethical and legal convictions. The code of conduct most essential for the establishment of a society in which individual human and legal rights can be enjoyed and protected, are translated into legal principles and laws – as opposed to arbitrary adherence to mere moral and ethical obligations. Any transgression of these legal principles, in criminal law and in the law of delict, is regarded as “wrongful” and may either constitute a criminal offence or a civil delict; provided, however, that the other elements of the crime or delict are present.

[48] It follows from the above that the concept of wrongfulness, both in criminal law and in the law of delict, has its roots in the boni mores and legal convictions of the society which it serves. The boni mores test as criterion for wrongfulness has repeatedly been emphasized by the Supreme Court of Appeal and our High Courts; to name but a few: Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 387; Marais v Richard en ’n Ander 1981 (1) SA 1157 (A) at 1168; Schultz v Butt 1986 (3) SA 667 (A) at 679; Administrateur, Transvaal v Van der Merwe [1994] ZASCA 83; 1994 (4) SA 347 (A) at 358 and 364; Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA); SM Goldstein and Co. (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 (4) SA 1019 (SCA) at 1024.

[49] In Clarke v Hurst NO. and Others 1992 (4) SA 630 (D) Thirion J remarked as follows at 652H-653A:

If it is accepted, as I think it should, that law is but a translation of society’s fundamental values into policies and prescripts for regulating its members’ conduct, then the Court, when it determines the limits of such a basic legal concept as wrongfulness, has to have regard to the prevailing values of society. I can see no reason why the concept of wrongfulness in criminal law should have a content different from what it has in delict.”

[50] A number of consequences flow implicitly from the aforesaid: First, the test for wrongfulness is determined with reference to society’s perception of justice, equity, good faith and reasonableness. See Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W) at 528-529. In this regard public reaction is not necessarily indicative of society’s legal convictions and perception of reasonableness: courts will not be blindly ruled by such reaction. See Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at 396 D. Also Courts “… … are not concerned with what the community regards as socially, morally, ethically or religiously right or wrong, but whether or not the community regards a particular act or form of conduct as delictually wrongful” (Van Eeden supra at para (10)).

[51] Second, society’s boni mores are not static, but evolve over time to accommodate “changing values and new needs.” See: (Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA) at 1330 A. In a heterogeneous society such as ours, the boni mores of society may also change from community to community. (See Taitz 1993 Vol 110 SALJ 440 who questions the use of a single 'boni mores' criterion in a heterogeneous society).

[52] Third, it is trite that the values and norms reflected in the Constitution must now also permeate the common law and influence the content of “wrongfulness” (Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC) at para 56). It follows that if public policy expressed in our common law conflicts with the values underlying the Constitution, then the latter must prevail (Carmichele (supra) at para 56).

[53] Fourth, the test is an objective test. See Gien v Gien 1979 (2) SA 1113 (T) at 1122; Dorland v Smits 2002 (5) SA 374 (C) at 384; Knobel 2003 THRHR at 500. This means that the whims and personal preferences of the Judge or Presiding Officer hearing the case are irrelevant and play no role in the adjudication process.

[54] This requirement implies an objective weighing-up of the benefits that the exercise of her right to possession of the property has for the Respondent, against the prejudice suffered by the Appellant as the result of the former’s conduct. The reasonableness thus depends on the degree of disproportion between the benefit and the prejudice. See Gien (supra) at 1121; Rand Waterraad v Bothma en ’n Ander 1997 (3) SA 120 (O) at 136; Dorland (supra) at 384; Knobel (supra); Vogel v Crewe and Another [ 2004] 1 All SA 587 (T) para 4; Tiffin v Woods NO and others [ 2007] 3 All SA 454 (C) at 458-459.

[55] Fifth, in determining objective reasonableness as an antithesis for wrongfulness, the test is not that of a highly sensitive person who truthfully complains that he finds the noise to be intolerable, but the reaction of

“ … the reasonable man … who according to ordinary standards of comfort and convenience, and without any peculiar sensitivity to the peculiar noise, would find it, if not quite intolerable, a serious impediment to the ordinary and reasonable enjoyment of his property” (De Charmoy (supra) at 192E-F).

[56] In the above regard De Vos J in Vogel (supra) referred with approval to the well-known dictum of Buchanan J in Holland v Scott (1882) 307 (EDC) at 332:

“. . . the plaintiff must show that the inconvenience complained of is in fact more than fanciful, more than one of mere delicacy or fastidiousness; that it was inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions.”

[57] See also Laskey & another v Showzone CC and others [2007] 4 All SA 1162 (C).

[58] Finally, where the disturbance consists of noise, the factors which have been regarded as material in determining whether the disturbance is of a degree which renders it actionable, include the type of noise, the degree of its persistence, the locality involved and the times when the noise is heard (De Charmoy (supra) at 192; Laskey & another v Showzone CC and others (supra)). By implication, therefore, each case can only be decided with reference to the peculiar facts of that case.

[59] For instance, a noise caused by a neighbouring property opposite or adjacent to the hospital or home for the aged and frail, may be held to be wrongful; whereas the same noise caused by a neighbouring property owner in an industrial area may not be held to be wrongful. Also, noise caused by rowdy students in a men’s university residence may not be held wrongful; whereas the same noise caused by the same students at the same time in a quiet residential area, may well be held to be wrongful.

[60] There are many other judgments laying down criteria for establishing wrongfulness. However, since interference with property rights and the nuisance caused thereby have many and diverse causes and origins, I have confined myself in formulating the above guidelines only to disturbance caused by noise. Even so, the above guidelines by no means constitute a numerus clausus; there may be many more but I have limited myself to only those I consider to be of particular importance and assistance to the facts of this case.

[61] In the application of the guidelines, the focus remains on the search for wrongfulness. In particular, and on the facts of this case, the issue remains the determination of the moment when the Respondent’s use of her property rights becomes an abuse of rights and therefore unlawful. That moment is determined in accordance with the value and norms of society in general, and of the community of Jeffreys Bay in particular. The Respondent’s alleged abuse of her property rights must, moreover be of such extent that it deserves the intervention of the law in order to ensure a peaceful, stable and orderly society where the human and legal rights of all are acknowledged, protected and advanced.

[62] What emerges from the above is that the legal concept of wrongfulness is a value judgment pronounced by the Court based on considerations of morality, the boni mores and legal convictions of society, reasonableness and fairness, and policy. It defines conduct necessary for an orderly, peaceful and harmonious community, and it transforms conduct not consistent with society’s norms and values to an actionable delict or a criminal offence, as the case may be, which attracts the sanction of the Court. In this sense wrongfulness is not conduct which some may regard as merely unethical, immoral or unreasonable, and which does not attract legal sanction.

[63]Although conduct which is wrongful in criminal law need not be wrongful in delict (Bophuthatswana Transport Holdings (Edms) Bpk v Matthysen Busvervoer (Edms) Bpk [1995] ZASCA 105; 1996 (2) SA 166 (A) at 174); and although conduct which may be wrongful towards one may not be wrongful towards another (SM Goldstein & Co. (Pty) Ltd) v Cathkin Park Hotel (Pty) Ltd 2000 (4) SA 1019 (SCA) at 1024 F), unlawfulness nevertheless remains a term which is both conceptually and contextually well understood by our Courts and is applied more often than not without any difficulty.

[64] What also emerges from the above discussion on wrongfulness is that the concept contains many elements and is based on diverse considerations. One of those considerations is reasonableness.

[65] The importance of reasonableness as an element of unlawfulness has been re-affirmed by the Supreme Court of Appeal in a number of cases. For instance, in SM Goldstein (supra) Harms JA (as he then was) said in relation to wrongfulness (at 1024F):

“The test involves a value judgment by applying in the light of all the circumstances the general criterion of reasonableness. The criterion is based upon considerations of morality and policy and the court’s perception of the legal convictions of the community. That harm is foreseeable is a relevant consideration.”

[66] In Olitzki Property Holdings v State Tender Board and another 2001 (3) SA 1247 (SCA) Cameron JA (as he then was) said at 1257A:

“This process involves the court applying a general criterion of reasonableness, based on considerations of morality and policy, and taking into account its assessment of the legal convictions of the community and now also taking into account the norms, values and principles contained in the Constitution.”

[67] And at 1257E:

“The conduct is wrongful, not because of the breach of the statutory duty per se, but because it is reasonable in the circumstances to compensate the plaintiff for the infringement of his legal right. The determination of reasonableness here in turn depends on whether affording the plaintiff a remedy is congruent with the court’s appreciation of the sense of justice of the community. This appreciation must unavoidably include the application of broad considerations of public policy determined also in the light of the Constitution and the impact upon them that the grant or refusal of the remedy the plaintiff seeks will entail.”

[68] In Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at 395I-396B Vivier ADP said in relation to wrongfulness:

“The test is one of reasonableness. A defendant is under a legal duty to act positively to prevent harm to the plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm. The court determines whether it is reasonable to have expected of the defendant to have done so by making a value judgment based, inter alia, upon its perception of the legal convictions of the community and on considerations of policy. The question whether a legal duty exists in a particular case is thus a conclusion of law depending on a consideration of all the circumstances of the case and on the interplay of the many factors which have to be considered.”

[69] It is quite clear from the above dicta, I believe, that the concept of reasonableness, when used as the test for wrongfulness, is nothing less and nothing more than a reasonable appraisal of all the many elements and considerations which make up wrongfulness. It is not, in the context of the dicta, a separate ingredient taken in isolation and then elevated into wrongfulness without reference to the other elements. In proper context, reasonableness has not replaced unlawfulness as an element of delict; it is merely a tool describing the thought process in weighing up the factors making up the concept of wrongfulness. It is clear from the above judgments that the ultimate enquiry remains whether or not unlawfulness has been established.

[70] Unfortunately, it seems that in cases of nuisance under neighbour law, many judgments, and some of our legal writers, have lost the focus on unlawfulness and have taken reasonableness as the test for wrongfulness out of context and describe the test for the abuse of property ownership rights, or for the infringement of property rights, as reasonableness without any reference to wrongfulness. In order to determine reasonableness, it is said, the Court must have regard to a host of criteria such as fairness, objectivity, boni mores, proportionality, and the like. See, for instance Waterhouse Properties CC and others v Hyperception Properties 572 CC and others (2008) JOL 21071 (O) (not reported elsewhere); JF van Eck & 12 others v Clyde Brickfields (Pty) Ltd & others (2006) JOL 17208 (T) (not reported elsewhere); Laskey and another v Showzone CC and other (supra); Tiffin (supra).

[71] Some of the above judgments seem to suggest that reasonableness is the main, if not the only, criterion for establishing delictual liability under neighbour law. JC Van der Walt and JR Midgley in Principles of Delict (3^rd ed) 2005 at 69 para 60 goes as far as stating that “Wrongfulness is determined according to the general criterion of reasonableness, sometimes referred to as the criterion of objective reasonableness.”

[72] With reference to concepts such as boni mores, the prevailing concepts in a particular community at a given time, or the legal convictions of the community, the learned authors state:

“Each of these is merely a different expression of the general criterion of reasonableness.”

[73] I find the above approach, with respect, not only vague and uncertain, but also not to accord with general principles or with the dicta from the Supreme Court of Appeal. The test of reasonableness must, in my respectful view, be applied with caution, always realizing that “reasonableness” and “unlawfulness” are jurisprudentially two very different concepts. As I will shortly demonstrate, reasonable conduct cannot be unlawful, but neither is unreasonable conduct necessarily unlawful.

[74] Reasonableness is the antithesis of wrongfulness. Wrongfulness can never be reasonable. The suggestion that wrongfulness is merely a different expression for the criterion of reasonableness is, with respect, both logically and grammatically unsound. The converse of wrongful conduct is lawful conduct, and lawful conduct is not necessarily reasonable. The classical example is the by-stander who observes the drowning of a child. The omission by a passing motorist who observes a child falling into a swimming pool and who fails to stop and render assistance or to rescue the child may be held to be unreasonable, but not necessarily wrongful.

[75] The same principle applies in cases of nuisance and disturbance under neighbour law. Take the following example:

[76] Farmer A occupies farmland next to a river where the risk of flooding is one in every ten years. To prevent flooding of his farm, he constructs a dam which contains the flood water. Farmer B occupies lower lying farmland immediately adjacent to farm A. If farmer A had not constructed his dam, the lands of farmer B would also have been flooded during the floods without attracting delictual liability to farmer A, and in this sense farmer B obtains an advantage from the construction of the dam by farmer A.

[77] During a particular heavy storm the flood levels rise and threaten to break the dam wall. The only remedy available to farmer A to save both his dam and lands is to open the sluices of his dam. This will, however, result in the flooding of the lands of farmer B causing great damage to the latter (which would have happened in any event if farmer A had not constructed the dam). But this can be prevented by farmer A. At little expense and trouble to himself, he can cause the water flowing from the open sluices to be re-directed in a canal to lower down in the river, by-passing the lands of farmer B. He fails to do so. He opens the sluices causing his neighbour’s land to be flooded, which, as I said, would have happened in any event if he had not built the dam.

[78] Leaving aside for purposes of the argument issues such as interference with the natural flow of water, the question is whether farmer’s A omission to take reasonable steps (at some expense and inconvenience to himself) to prevent the flooding of his neighbour’s land by re-directing the water gives rise to an actionable delict. I venture to suggest that in such hypothetical situation the conduct of farmer A may very well be labeled as unreasonable and morally and ethically reprehensible, but not, legally speaking, necessarily unlawful. In this sense reasonableness is not the criterion for wrongfulness.

[79] The other problem with the general proposition that reasonableness is a different expression for the criterion of wrongfulness is that the concept of reasonableness bears a particular meaning and has been given a particular content in our jurisprudence. It is usually employed to establish negligence in either delict or in criminal law. Conduct which falls short of that expected from the “reasonable man” in the shoes of the accused or respondent is normally labeled as negligent conduct.

[80] The concepts of wrongfulness and reasonableness (to establish negligence) are entirely separate and the existence of the one does not result in the other (Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)). Unlike the determination of unlawfulness which is concerned with the values and norms of society, the enquiry of reasonableness focuses on the objective conduct of a person in the position of either the accused or the respondent/defendant and measures such conduct against the conduct displayed by the accused/respondent/defendant, without considering the interests of the complainant/plaintiff/applicant or the interests of society. This differentiation is recognized by J.C. Van der Walt and J.R. Midgley in the Principles of Delict (supra) para 59 p.67.

[81] Wrongfulness is not only a much wider concept than unreasonableness, but it also seems a convoluted and difficult way to reach the goal of establishing wrongfulness by first establishing reasonableness. To first establish reasonableness, and then to label conduct not complying with the test of reasonableness as wrongful or unlawful, may also result in erroneous findings of wrongfulness – as the examples of the omission to rescue a drowning child and to prevent flooded lands show.

[82] Finally, to determine delictual liability in neighbour law without reference to the all-embracing concept of wrongfulness but with reference only to loose concepts based on equity such as fairness, reasonableness, morality, boni mores of society and the like, will in my view result in a blurring of mere unethical or unreasonable conduct not deserving of legal protection, with unlawful conduct necessary for an orderly society and deserving of protection from the law. Also, to define wrongfulness with reference to the norms of reasonableness and other values of equity, will transform the otherwise clear, uncomplicated and easily determined concept of wrongfulness into a complicated, unclear and vague concept not inductive to uniformity in judgments.

[83] I do not read any of the judgments from the Supreme Court of Appeal or its predecessor, the Appellate Division, to mean that reasonableness has replaced wrongfulness as an element of a delict, or that the only way of establishing wrongfulness is to use the criterion of reasonableness.

[84] For the reasons mentioned earlier, the ultimate question is whether the Respondent’s conduct can be labeled as wrongful within the legal meaning of that word. I therefore intend to deal with this appeal on such premise.

[85] It follows from the above that the starting point, in my view, is that the reasonable use and enjoyment of a lawful owner or occupier of his or her property is lawful. It is only when a neighbour complains that such use adversely and materially interferes with the use of his/her neighbouring property, that the enquiry into wrongfulness arises. This approach results in a consideration of the nature, extent and manner of the alleged interference. If such nature, extent and manner of interference is considered to be unlawful in the usual and ordinary legal meaning of the concept of unlawfulness, then provided all the other elements of the delict are present, the interference becomes actionable.

[86] The next step is to apply the the legal principles to the facts.

[87] It is convenient to first deal with a point raised by Mr Nepgen on behalf of the Respondent, and that is this.

[88] He submitted that it is not the conduct of the Respondent which causes the alleged harm or prejudice to the Appellant, but conduct on the part of the motorists and sightseers. By analogy with a residential home situated directly across a popular rugby or football stadium such as Newlands or Green Point (now known as Cape Town Stadium) in Cape Town, he submitted that such property owner has no delictual claim against the Rugby or Football association caused by rowdy crowds over week-ends, because such noise is not caused by the association, but by the spectators.

[89] The fallacy of the argument, of course, is that the issue is not one of causation, but rather one of wrongfulness. On the legal test of causation, the noise created by the spectators, which was foreseeable by the Rugby or Football association, is a condictio sine qua non of the particular association’s use and exercise of its property rights. Likewise, the noise complained of by Appellant is a condictio sine qua non of the switching on of the Christmas lights by the Respondent. I am satisfied that causation has been established on the facts of this case. The noise complained of is a direct result of the switching on of the lights.

[90] The submission that the property owner next to a rugby or football stadium has no delictual claim based on nuisance (noise) against the sport body is not founded in causation, but rather in having purchased a property next to the stadium knowing full well what the consequences will be. On Mr Nepgen’s example, the operation of the principle volenti non fit injuria will probably result in a finding that the creation of noise on the facts of that particular example, as against a neighbouring property owner, is not unlawful.

[91] In this case the enquiry, in my respectful view, remains whether or not unlawfulness has been established on the part of the Respondent.

[92] For the reasons mentioned earlier, and applying the Plascon test, I must accept the Respondent’s version of the disputed facts on this issue. In addition, the evidence of the Appellant stands alone and uncorroborated. Her own neighbour, who lives directly across the road from the Respondent, refutes her allegations and supports the Respondent’s contention that the noise has very little impact on the lifestyle and home comforts of the neighbours. I nevertheless accept, for the purposes of this judgment, that the noise created does cause inconvenience and discomfort to her and her husband. They are elderly pensioners who no longer take kindly to rowdy and noisy holidaymakers and sightseers next to their home – particularly during evenings when they treasure a homely and quiet atmosphere and environment.

[93] The disturbance and nuisance caused to the Appellant must be balanced against any benefit or advantage experienced by the Respondent from her conduct. Clearly there is no financial or patrimonial benefit – on the contrary, her expenses are probably not insignificant. The benefit is solely the gratification and enjoyment she experiences from creating a festive atmosphere and spirit during the Christmas period. She shares such enjoyment with many locals and visitors alike, and she brings happiness to many children. She also probably draws enjoyment from spreading goodwill and cheer among the community and causing two worthy charity organizations to benefit in the process.

[94] In balancing the prejudice caused to the Appellant against the benefits to the Respondent, the Court must have regard to the interests of the society in general and of the community in Jeffreys Bay in particular. In this process it must determine whether the conduct of the Respondent in the particular context is perceived by society to be lawful and reasonable; or wrongful. It must have regard to the duration of the disturbance caused, the locality where it is caused and the manner in which it is caused. It must be an objective weighing-up of all the relevant factors without being influenced by personal tastes, preferences or prejudices.

[95] Having carefully considered all the relevant factors, I am driven to the conclusion that the inconvenience and disturbance caused to the Appellant is not of such a nature that it deserves the label of wrongfulness which attracts legal sanction.

[96] The boni mores and legal convictions of that particular society, in my judgment, do not call for a sanction of the Respondent’s actions. Whilst the inconvenience and discomfort caused to the Appellant is recognized, it is not of such nature and extent which justifies the Respondent’s conduct as being labeled wrongful or unlawful. Subject to the limitation mentioned in the next paragraph, I believe the law requires the Appellant, on the particular facts and circumstances of this case, to tolerate the higher noise levels for a limited time during the festive season in Jeffreys Bay. The enjoyment derived from the activities by the Respondent, other locals, and visitors; the happiness it brings to children; the spreading of the message of goodwill and cheer to deserved charity organizations, in my respectful view, outweigh any prejudice and inconvenience caused to the Appellant.

[97] The limitation is this: On her own initiative, the Respondent has limited the activities to the period 14 December to the end of first week in January of every year between 19h00 and 23h00. I regard such limitation as reasonable in the circumstances, and it will, to some limited extent, alleviate the Appellant’s inconvenience and discomfort. I believe such limitation should remain in place.

[98] Finally, in regard to the question of costs, I believe both parties are equally to blame for the prolixity of valueless affidavits, documents and annexures. In my view, no costs should be awarded to either party in relation to those papers.

[99] It follows that, in my respectful view, the appeal should fail.

[100] In the circumstances I make the following order:

1. Subject to paragraphs 2, 3 and 4 hereunder, the appeal fails with costs and the order of the Court a quo is confirmed.

2. The switching on of the Christmas lighting in and on Respondents’ property is limited to the period and times 14 December to the end of the first week in January of each year, from 19h00 23h00; and the Respondents are hereby prohibited and interdicted from switching on such Christmas lighting at any other time of the year.

2. The costs order made in paragraph 1 above will:

   1. be confined only to the First Appellant and the Respondents;

   2. exclude all and any costs after the date of filing and delivery of the First Appellant’s first set of replying affidavits dated 11 December 2007;

   3. include the costs of the hearing before the court a quo and of this appeal.

4. The costs order made by the court a quo is set aside and is replaced with the costs order in paragraph 3 above.

____________________

ALKEMA J

I agree.

____________________

JONES J

Heard on 11 December 2009

Delivered on 20 April 2010

Counsel for Appellant : Adv. T. Zietsman

Instructed by : Nel Mentz Inc.

c/o Netteltons Att.

Counsel for Respondent : Adv. J. Nepgen

Instructed by : C.W. Malan Jeffreys Bay Inc.

c/o Neville Borman & Botha

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