This article will focus on a nuisance in the form of a foul odour in the agricultural sector as understood in Common law. It is imperative to note that nuisances can take various forms, for example loud noises, or physical protrusions over property boundary lines.
Bearing the aforementioned definition in mind, one must understand that in order for any action or activity to be considered a nuisance it must be an unreasonable and substantial infringement of one’s right to the undisturbed use and enjoyment of their property.
It is thus clear that in order to prove that a nuisance exists one must prove unreasonableness as well as a substantial infringement. This can be done by satisfying the elements of delict or by fulfilling the necessary statutory requirements in accordance with the relevant legislation.
In the matter of JH Jacobs N.O. & Two Others v Hylton Grange (Pty) Ltd and Others, neighbouring grape farmers took a mushroom farmer to court to prevent him from making his own compost which caused a potent urine and rotten egg smell which was a result of the emission of gases from the substrate (compost) he used to grow his mushrooms.
The court then had to decide whether the harm-causing conduct of the mushroom farmer, assessed in accordance with public policy and the legal convictions of the community, constitutionally understood, is or is not acceptable. Therefore was it reasonable to impose liability.
In order to determine reasonableness, the value judgment of the court must be balanced. In an effort to balance the rights of the parties involved the court took into consideration, amongst others, the following:
- The seriousness of the violation/infringement of the right to the undisturbed use and enjoyment of one’s property;
- The practicality of reducing the harmful effects caused by the nuisance; and
- The restrictive means which may be employed to rectify the situation.
In cases dealing with nuisance complaints the objective of the complaint is either to recover compensation for damage caused or to obtain an interdict to prevent the wrongdoer from performing the nuisance causing activity and some instances to achieve both of the above outcomes.
In this case the court concluded that on the evidence it ought to be possible, by taking reasonable steps, to abate the nuisance. If it proves not to be possible, the mushroom operation will not necessarily have to be discontinued altogether. Therefore it was objectively reasonable to impose liability in this case.
The mushroom farmer was interdicted from creating his own substrate until such time as it is proven to the court that they have found a manner in which to make substrate without being a nuisance to their neighbouring farmers.
Nkateko Manganyi is an Associate in the Litigation and Dispute Resolution department and can be contacted on nkatekom@vdt.co.za.
This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out in the relevant legislation. This article should under no circumstances be construed as formal legal advice.
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