The South Gauteng High Court in Johannesburg has ruled in a legal battle between two neighbours in Lenasia over the level of noise from one of them operating as a business premises.
Image: File
TWO neighbours in a Johannesburg suburb are at each other’s throat over excessive noise coming from one of the properties that operates as a cheese-manufacturing business.
Nunostax and its director Asvin Paraboo are the owners of the property in Lenasia, south of Johannesburg, Paraboo purchased the property in 2015 and had it rezoned for commercial use the following year.
One of Nunostax and Paraboo’s neighbours, the Docrat family, has lived in the neighbouring property since 1984 and was aware of the construction that followed the purchase.
The Docrats expressed their unhappiness with the noise emanating from the business premises after construction was completed and even obtained an initial noise report to substantiate their concerns, later getting another noise report.
According to papers filed at the South Gauteng High Court in Johannesburg, the family’s complaint is not only limited to noise but also about a variety of intrusions on the enjoyment of their property and intrusion of their privacy.
The court heard that the neighbours appear to also have a history of acrimony between them.
In their ruling handed down last Tuesday, Judges Mpostoli Twala, Dephny Mahosi and Acting Judge Allen stated that Nunostax and Paraboo’s property is a business premises zoned as such but situated in a residential area.
The judges said the exceeding of noise levels complaint by the Docrats should have been taken up with the City of Johannesburg as it is the municipality that makes the by-laws and police transgressions thereof but the family chose to not involve the council.
”The City of Johannesburg’s involvement in our view is critical since it is the entity clothed with the responsibility to, in terms of its building regulations, to determine whether the first appellant’s (Nunostax) building and alterations thereto are in accordance with building plans approved and whether any objections were raised to such plans and the outcome thereof,” reads the written judgment.
The judges said to determine the correct noise levels subsequent to the building alterations and possible transgressing thereof in terms of the by-laws, the Docrats should have first approached City of Johannesburg to lay a complaint and absent any action or assistance to approach the court for relief.
Instead, the Docrats approached the high court to interdict Nunostax and Paraboo and this was granted by Acting Judge Kevin Trisk in June 2021.
In his ruling, Acting Judge Trisk ordered Nunostax and Paraboo to abate the nuisance forming the subject matter of the Docrats’ application by removing the generators, compressors and extractors, which are affixed to or form part of the company’s property and which currently face onto or are in close proximity to the boundary wall separating its property from the family’s property.
The Acting Judge directed that the machinery must be relocated in order to exclude it from the family’s line of sight and to move it to a position which is on or adjacent to the company’s property, which is as remote as is structurally feasible from the boundary wall.
Nunostax was also ordered to remove the staircase, goods lift, roller shutter door, the windows immediately adjacent to the boundary wall and/or any other vantage points which overlook the family’s property or which could be used to overlook their property and to relocate the structures to a different aspect of the company’s property so as to ensure that the structures do not intrude on or constitute objects which fall within the family’s line of sight and to so position them as to ensure that they are as remote as possible from the boundary wall.
Nunostax and Paraboo were also interdicted and restrained from permitting any noise in excess of that envisaged by the SA National Standards to emanate from their property including any vantage point on their property to be used for the purposes of overlooking the family’s property or any portion thereof.
However, the full bench of the high court – Judges Twala, Mahosi and Acting Judge Allen – overturned Acting Judge Trisk’s ruling.
”The inescapable conclusion is that the respondents’ (the Docrats’) noise report cannot find application in this matter, and that the respondents have not exhausted their alternative remedy of lodging a complaint with the City of Johannesburg prior to approaching the court on both building encroachment and the noise levels,” the full bench ruled.
loyiso.sidimba@inl.co.za