Limitation of ownership (nuisance)

Question 1

From where does the principle of nuisance arise?

Answer 1

This principle, which is recognised and applied, is traced back to the Roman-law maxim “sic utere tuo ut alienum non leadas” - for we ought not abuse our lawful right.

Question 2

Overview of concept of nuisance in law

Answer 2

It is trite law that a landowner or user may not use the land in such a way that causes unnecessary or unreasonable discomfort or harm for his neighbours.

Question 3

Characteristics of nuisance

Answer 3

Detrimental effects of unreasonable and unlawful use

One person causes effects that cross the boundary with neighbour and that disturb or interfere with ius utendi (use and enjoyment) in a way that exceeds reasonable level.

Contiguity and locus standi should not be interpreted too narrowly.

Question 4

Wide interpretation of “neighbours”

Answer 4

A wide interpretation of “neighbour” is required as far as the location of the land is concerned (contiguity), but also as far as the legal statusof both the perpetrator and the victim of nuisance is concerned.

Question 5

Explain the aspect of contiguity

Answer 5

neighbour law in general and nuisance law in particular rest on the assumption that nuisance usually involves at least two properties that are situated more or less closely together, although they do not have to be strictly adjacent.

Question 6

How far does the effect of nuisance go (ito the people it affects?)

Answer 6

It is equally clear that the nuisance could emanate from neighbouring land, although it is not caused by the owner or the current occupier or user of the land, just like nuisance could affect not only the owner but also the tenant or the occupier of the neighbouring land.

Question 7

who has locus standi for nuisance

Answer 7

nuisance actions could be brought both by and
against non-owners such as lessees, users or other occupiers of the land

Question 8

Conditions for people with locus standi

Answer 8

it is usually said that a claimant in nuisance should have a valid legal right, entitlement or license to be present on, occupy, use or enjoy the land.

Question 9

Definition of Nuisance Law

Answer 9

That branch of the law which provides the conceptual apparatus needed to adjudicate upon a situation where the occupant of fixed property, in the course of using that property, conducts himself in such a way in or such property, as to cause actual or potential damage to the occupant of neighbouring or nearby fixed property

Question 10

what is nuisance?

Answer 10

a conduct whereby a neighbours health, well-being or comfort in the occupation of his or her land is interfered with … as well as the causing of actual damage to a neighbour.

Question 11

Conflicts that arise as a result of nuisance

Answer 11

One person, in using his property, causes effects that cross the boundary between his property and his neighbours
and that disturb or interfere with the use and enjoyment of neighbouring property in a way that exceeds what could reasonably be expected of a neighbour to tolerate.

Question 12

Where will nuisance feature?

Answer 12

Nuisance therefore features in the space where individual rights come into conflict because of the boundary-surpassing impact of land use

Question 13

two main principles on which Neighbour Law regulates these conflicts

Answer 13

1. Landowners are reciprocally obliged to tolerate a reasonable level of interference emanating from normal and lawful use of neighbouring land.
2. Secondly, such interference might become unlawful and hence actionable when it exceeds the level of what neighbours could reasonably be expected to tolerate

Question 14

Different approaches to nuisance law

Answer 14

Narrow
* causes annoyance or discomfort

Wide
* Causes damage to property or Wide personal injury

Public
* causes extensive harm to general public

Statutory
* contravention of statutory or Statutory administrative use limits/guidelines

Question 14

Fundamental aspects of nuisance

Answer 14

• Presence of reasonable tolerance amongst neighbors leads to the absence of annoyance or discomfort!
• Absence of reasonable tolerance leads to annoyance or discomfort.
• Depending on the extent of nuisance, the applicant may take an action to counteract the annoyance or discomfort through employing an appropriate remedy.

Question 15

Meaning of NUISANCE CAUSING ANNOYANCE AND DISCOMFORT: (Narrow interpretation)

Answer 15

Tolerate a reasonable level of interference with property.

But becomes unlawful if action exceed (nature, scope or level) what could reasonably be expected to accept OR tolerate.

Question 16

Annoyance

Answer 16

Continuing, ongoing and repetitive infringements of ius utendi.

Question 17

Discomfort

Answer 17

Hinders / disturbs ius utendi.

Question 18

REMEDIES FOR PREVENTING OR TERMINATING ONGOING NUISANCE

Answer 18

Locus standi
Interdict

Question 19

Who can participate in a locus standi?

Answer 19

Owners, holders of limited real right + personal right, other users

Question 20

If nuisance caused by previous owner or by a person who is not the current owner, such as an occupier, a tenant or even a guest, - who is liable?

Answer 20

Most cases either owner or tenant

Question 21

List 3 purposes of this remedy (locus standi)

Answer 21

• Prevent the respondent from proceeding with an action that would be subject the applicant to nuisance.
• Compel the respondent to take steps to avert an imminent threat of nuisance.
• Compel the respondent to terminate an ongoing action that causes or will cause a nuisance (exceeded normal limits)

Question 22

Purpose of a prohibitory interdict

Answer 22

to prevent the respondent from proceeding with an action that would subject the applicant to nuisance.

Question 23

Purpose of a mandatory interdict

Answer 23

to compel the respondent to either take steps to avert an imminent threat of nuisance or to terminate an ongoing action that causes or will cause a nuisance

Question 24

qualities of an interdict

Answer 24

• Extraordinary remedy
• It is a remedy of last resort.
• Requirements specifically state that there must be no other effective remedy available.
• Court has a discretion to refuse that remedy.
• Cannot expect you to suffer first and experience a loss.
• Abatement order for statutory nuisance.
• No need to prove common law nuisance. In these circumstances, you are asking for an interdict

Question 25

requirements for final interdict:

Answer 25

the applicant must prove:
(a) that he/she has a clear right;
(b) an injury actually suffered or reasonably apprehended;
(c) the absence of an effective alternative remedy.

Question 26

Proving the lawfulness of the actions

Answer 26

The applicant does not have to prove that the respondent’s actions are unlawful.
Unlawfulness is implied in the effect of causing an interference with the applicant’s ius utendi which exceeds that what is reasonably expected of the applicant to tolerate

Question 27

Requirements for interim interdict:

Answer 27

• Balance of convenience.
  Effect of granting interdict on respondents ius utendi - effect of not granting interdict on applicant’s ius utendi.
• Objective test
  (question of fact + matter of degree)
• Is there an interference that exceeds reasonable limits?
• Mutual and reciprocal obligations.

Question 28

On what basis will courts grant an interim interdict?

Answer 28

With reference to what the balance of convenience demands in a particular case.

Courts make this contextual determination by weighing what

the effect would be of granting the interdict on the respondent’s ius utendi of his/her property against what the effect would be of not granting the interdict on the applicant’s

ius utendi of his/her property

Question 29

Context on objective test for interim

Answer 29

(a) the feasibility of abating the nuisance;
(b) the seriousness of probable effect of not removing or reducing the nuisance;
(c) the relative weight of parties’ interests;
(d) customary use of the property;
(e) locality and physical features of the property;
(f) prevailing social and economic conditions;
(g) public interest or general public welfare.

Question 30

Complain on the basis of:

Answer 30

• Abnormal use.
• Exceed limits of reasonable forbearance.
• Cause serious physical damage or seriously and urgently endanger physical integrity, health or well-being.

Question 31

Contextual determination for the basis on which to complain

Answer 31

Suitability of use
(Malherbe and Kirsch);
Kirsch - one owner laid a cement slab to dry moult for beer production but the neighbouring owner planted not only one or two trees but planted trees along all 3 sides of the properties in various roads. Judge found in these instances normal use of planting trees was not suitable for these purposes because falling leaves fell over wall and fell into neighbour’s area and intermixed with moult being dried on concrete slab.

Extent, duration and time(s) of interference
(Allaclas,Laskey, Gien)

Sensitivity of the applicant;
[display some measure of forbearance) nature of property and locality;
[contextualanalysis, distinction between whether property is urban or rural] (Ellaurie)

Nature of property and locality;
[contextual analysis, distinction between whether property is urban or rural] (Jolly Roger)

Possibility and practical/economic feasibility of preventing, terminating or mitigating.
[Ellaurie, Jolly Roger and Jacobs]

Question 32

How is nuisance predicated on normal and reasonable use of land?

Answer 32

There needs to be a balance between mutual and reciprocal rights and obligations.

Question 33

Explain the how the balance between mutual and reciprocal rights and obligations is carried out.

Answer 33

• If you have an innocent owner, he has both rights and obligations towards owner/occupier causing the nuisance.
• When it deals with mutual & reciprocal rights, it pertains to reasonable use.

Question 34

Test for balance between mutual and reciprocal rights and obligations.

Answer 34

• On the basis of the Ordinary physical comfort of a reasonable person.
• Reasonable person = “Normal wo/man of sound and liberal tastes and habits”.
• Not that of a “Perverse or finicking or over-scrupulous person”.

Question 35

Cases for balance between mutual and reciprocal rights and obligation

Answer 35

Laskey, Allaclas, Jacobs, Ellaurie, Jolly Roger.

Question 36

Description of abuse of right

Answer 36

An instance where the otherwise normal and lawful use of an owner or occupier may be rendered unlawful simply because of his/her malicious intent as determined with reference to objective grounds.

Question 37

When would it be difficult for a nuisance causing neighbour to defend itself against a nuisance claim?

Answer 37

If the plaintiff voluntarily occupied - or continues to occupy - a property in the vicinity of a known and existing nuisance.

Question 38

What would the central consideration be in a situation where the nuisance-causing neighbour tried to defend itself against a nuisance claim if the plaintiff voluntarily occupied - or continues to occupy - a property in the vicinity of a known and existing nuisance?

Answer 38

Whether the nuisance exceeds what a reasonable owner or occupier is expected to tolerate

Question 39

Decision in
* Laskey v Showzone CC
* Allaclas Investments (Pty) Ltd v Milnerton Golf Club

Answer 39

the courts appeared to express some sympathy towards the defendants with reference to the locality principle.

According to this principle an owner or occupier cannot expect a higher level of comfort than what is customary in the specific context

Question 40

Kirsch v Pincus describing whether spite or malicious intent a factor for abuse of power

Answer 40

Kirsch v Pincus:
o If your intention behind otherwise normal and
unreasonable use to make sure you, for example, plant a tree that sheds a lot of leaves opposite theboundary wall to fall into pool.

Question 41

Gien v Gien describing whether spite or malicious intent a factor for abuse of power

Answer 41

Yes but the action must be unreasonable and therefore unlawful on objective grounds. Spite or malice is not enough to be unreasonable, but if you can determine the effects are of
unreasonable use.

Question 42

Use of the Actio legis Aquiliae

Answer 42

A plaintiff may, in addition to an interdict to prevent or terminate a nuisance that causes annoyance or discomfort also be able to claim compensation with the Actio legis Aquiliae if the nuisance causes actual patrimonial loss or damage to property.

Question 43

Test for claiming under actio legis aqualiae

Answer 43

Reasonableness standard (BUT, we add the following)
o Actual damage;
o Extent of damage;
o Feasibility of stopping or preventing the nuisance.

Question 44

What can be claimed for under actio legis aqualiae?

Answer 44

• Expenditure incurred to prevent or mitigate damage/loss.
• Actual loss caused by damage to corporeal property.
• Depreciation in the value of the property (permanent and irreversible.

Question 45

When will plaintiff be precluded from claiming via actio legis aquiliae

Answer 45

where the nuisance caused only small losses or can be rectified by incurring a small expense

Question 46

plaintiff’s claim for compensation under Actio legis Aqualiae

Answer 46

(a) expenditure incurred to prevent or mitigate damage;
(b) actual loss caused by damage to corporeal property; and
(c) permanent and irreversible depreciation in the value of the property

Question 47

Claim via actio iniuriarum

Answer 47

A plaintiff may, in addition to an interdict to prevent or terminate a nuisance that causes annoyance or discomfort, also be able to claim compensation or satisfaction with the actio iniuriarum if the nuisance infringes his/her personality rights such as his/her personal integrity and health +psychological injury

Question 48

When plaintiff may be precluded from claiming with the actio inuariarum

Answer 48

where the nuisance caused a mere irritation or discomfort

Question 49

Laskey v showzone cc

Answer 49

Facts: The applicants owned inner-city apartments in Cape Town. They sought an interdict to prevent disturbing noise caused by the respondents, who operated a theatre restaurant next to their building. The noise, particularly music during performances, exceeded permissible levels.

Legal Issue: Did the respondents’ conduct amount to nuisance, considering various factors?

Outcome: The court balanced the social utility of the respondent’s business against the applicants’ right to immediate cessation of nuisance. A reasonable period was granted for abatement

Question 50

Allaclas Investments (Pty) Ltd v Milnerton Golf Club

Answer 50

Facts: The appellant, who owned a property adjoining the golf club, sought an interdict preventing the Milnerton Golf Club from using the 6th hole of the golf course. The reason was to reduce the danger of golf balls hitting the appellant’s property.

Issue: Was the golf club’s use of the 6th hole causing actionable nuisance?

Outcome: The court found that the excessive number of golf balls entering the appellant’s property constituted unreasonable interference with their rights. The golf club was interdicted from using the 6th hole until effective measures were taken to avoid or reduce the danger

Question 51

Jacobs N.O and others v Hylton Grange

Answer 51

Background: The Appellants (trustees of the Modderdrift Trust) operated a commercial mushroom farm on Modderdrift number 93 (MD93). The compost used for mushroom cultivation emitted strong odours, including ammonia and hydrogen sulphide. These odours invaded neighbouring grape farms where the Respondents resided.

Complaints: The Respondents alleged that the offensive odours made it virtually impossible for them to use and enjoy their homes. The odours permeated indoor spaces, curtains, and linen. Flies attracted by the odours even ended up in their grape punnets.

Legal Action: The Respondents sought an interdict to stop the composting operation until the nuisance was abated.

Court Decision: The court upheld the findings of the initial judge, ruling in favor of the Respondents. The Appellants were interdicted from continuing the composting operation until measures were taken to address the offensive odours1.

Question 52

Madrasah Taleemuddeen Islamic Institute v Ellaurie

Answer 52

Facts: The appellant, Madrasah Taleemuddeen Islamic Institute, operated a school for Islamic studies in Isipingo Beach, KwaZulu-Natal. The “Call to Prayer” (Azaan) from their property caused noise audible at Mr. Ellaurie’s nearby property.

Issue: Was the Azaan an actionable nuisance?

Court Decision: The Supreme Court of Appeal held that the right to undisturbed property use is not unlimited. Reasonable interference is expected, considering neighborhood circumstances. Personal oversensitivity isn’t the standard for reasonableness. Constitutionally guaranteed conduct is relevant. The principles governing interdicts were restated12.

Question 53

University of Pretoria v Jolly Roger [2023]

Answer 53

Facts: The University of Pretoria alleged that the Jolly Roger and other respondents occupy premises in an area known as the “Strip,” where they operate bars and nightclubs. These establishments are located along Lynnwood Road, opposite the University campus.

Application: The University sought an interdict against the pubs and owners of the premises from which they operate.
Relief Sought:

Interdict: To prevent the pubs from operating.
Damages: Compensation for harm caused by the pubs’ activities.
Costs: Legal costs incurred by the University