What is the essence of common law nuisance?

It lies in the maxim sic utere tuo aliennum non laedas – which means use your own property in such a manner as not to injure that of another.

In the case of Waterhouse Properties CC and others and Hyperception Properties 572 CC and others (OFS), Judge Rampai referred to the general principle which governs the neighbour relations. laid down in the case of REGAL v AFRICAN SUPERSLATE (PTY) LTD 1963 (1) SA 102 (AD) at 106 H – 107 A. where Steyn CJ said:

“In hoofsaak het ons hier te doen met wat buurreg genome kan word.  As algemene beginsel kan iedereen met sy eiendom doen wat hy wil, al strek dit tot nadeel of misnoeë van ‘n ander, maar by aangrensende vasgoed spreek dit haas vanself dat daar minder ruimte is vir onbeperkte regsuitoefening.  Die reg moet ‘n reeling voorsien vir die botsende eiendoms- en genotsbelange van bure, en hy doen dit deur eiendomsregte te beperk en aan die eienaars teenoor mekaar verpligtings op te lê.”

The aforegoing passage was refined and elucidated by Spoelstra AJ in the case of GIEN v GIEN 1979 (2) SA 1113 (TPD) at 1121 A – C:

“Waar die onbeperkte bevoegdheid van een eienaar om ‘n saak te gebruik en die bevoegdheid van ‘n ander eienaar om onbelemmerde genot van sy saak te hê, met mekaar in botsing kom, word die regte beperk, soos Hoofregter Steyn dit stel, deur wedersydse verpligtinge op te lê.  ‘n Eienaar se eiendomsbevoegdhede strek dan, soos ek die uitspraak verstaan, slegs sover as wat daar ‘n verpligting op sy buurman rus om die uitoefening van daardie bevoegdheid te verduur.  Dit bring ‘n verpligting vir die een eienaar mee om sy reg so uit te oefen dat hy nie daardie perk oorskry nie.  Word dit oorskry, tree hy nie meer op ingevolge die bevoegdhede wat sy reg aan hom verleen nie en maak hy inbreuk op die reg van sy buurman.  Dit is onregmatige optrede wat die reg nie duld nie en wat die grondslag vir ‘n interdik kan vorm.”

What emerges from the two quotations is that the law creates certain obligatory legal norms in order to regulate the relations between neighbours.  The proposition has two crystal dimensions.  The first dimension is that the land owner has by virtue of the most comprehensive right, the right of ownership, the general freedom to fully exercise his real right in respect of his landed property.  The radius of such legal exercise is generally limitless.  The second dimension is that the other neighbouring landowner also has, by virtue of her real right of ownership, the most comprehensive of all the rights, the general freedom to fully enjoy her real right in respect of her fixed property.

The law imposes a duty on the second neighbour to tolerate and to endure to a certain extent the first neighbour’s reasonable exercise of his ownership powers or rights.  Such an obligatory legal norm primarily limits the second neighbour’s right to the full enjoyment of her property.  The law also imposes a duty on the first neighbour to exercise his powers within the normal and acceptable limits of reasonableness.  Such an obligatory legal norm restricts the first neighbour’s right to the full exercise of his powers and rights of ownership or the exploitation of his property.  It is impermissible to exceed the obligatory legal norms.  They are designed to harmonise neighbour relations.

When a landowner crosses the dividing line, he exceeds the regulatory demarcation of tolerance.  He oversteps the mark.  He breaches the norm of healthy neighbourliness.  He exceeds the legal limit of reasonable exercise of his ownership rights.  Beyond such a boundary his conduct becomes an unreasonable interference.  Our neighbour law forbids it.  In this sphere there can be no reasonable exercise of rights.  Here we have nothing else but interfering conduct which closely borders on an abuse of rights.  The landowner’s conduct which causes intolerable annoyance and discomfort in this way to his neighbour is a nuisance.  Our neighbour law tells us that it is actionable.  The law between neighbours is inspired by considerations of fairness and equity in order to promote tolerant neighbourliness.

The applicants are inviting me to apply the test applicable to the common law of nuisance to the facts in casu and to find that the first respondent’s conduct constitutes an objectively unreasonable annoyance or inconvenience which is greater than a normal person can be expected to endure in a normal contact with his fellow men or women – in other words an annoyance which is plus quam tolerabile.  (vide PRINSLOO v SHAW 1938 (AD) 570 on 575 per De Wet JA.)

Not all forms of nuisance are actionable.  Whether a nuisance is actionable or not is a matter of degree.  An actionable nuisance occurs whenever there is a consistent and substantial interference with the psychological well-being of a human being.  (vide LAWSA:  Vol. 27, First Re-issue p. 227 par 303.)  Actionable nuisance occurs with or without the causation of actual patrimonial damage to one neighbour by another.  (vide VOGEL v CREWE AND ANOTHER 2003 (4) SA 509 (TPD) at 511 G – 512 A. per De Vos J)  One neighbour’s conduct on his own private land which is not only in keeping with the norm but also impairs or infringes the substance of another neighbour’s normal use, enjoyment comfort, health and general welfare which matters collectively constitute ordinary convenience in keeping with the norm, may be regarded as nuisance.

The test for an actionable interference by one property owner on the normal use, normal enjoyment and ordinary convenience of a neighbour’s property by its owner is that of objective unreasonableness.  The basic enquiry is whether the actions of the property owner in the particular circumstances were proper, befitting and socially adequate in the light of the convictions of the society – secundum bonos mores (vide REGAL v AFRICAN SUPERSLATE (PTY) LTD 1963 (1) SA 102 (AD) on p. 112, per Steyn CJ, 114, per Hoexter JA, 116 and 117 per Ogilvie Thompson JA as well as CG van der Merwe:  Sakereg, Second Edition 1991.)

The authors Silberberg & Schoeman in their work “The Law of Property”, fourth edition, p. 110 give a lucid exposition of the basic test as follows:

“In each and every case it is a question of fact and often a matter of degree whether the state of affairs resulting from such activities is sufficiently serious so as to constitute an actionable wrong.  The test applied is one of reasonableness, the question being whether a normal person, finding him or herself in the position of the plaintiff, would have tolerated the interference concerned.  In order to ascertain whether a landowner’s conduct is objectively reasonable various factors, including the situation of the land, for example whether it is situated in a residential or industrial area, and the type of people who inhabit it have to be taken into account.”

There are two distinct elements to the test.  In the first place, the objective test has to be applied to the specific facts and in the light of the prevailing circumstances of each particular case.  It must constantly be borne in mind since what would constitute objective unreasonableness in one instance would not necessarily constitute objective unreasonableness in another instance.  (vide VOGEL v CREWE AND ANOTHER 2003 (4) SA 509 (TPD) on p. 512 par. 4 per De Vos J.)

In the second place the objective test has its very foundation the concept of reasonableness.  The yardstick used to measure whether the conduct of the neighbouring property owner is seriously offensive and therefore substantially invasive is the standard of a normal and neutral individual who lives in the same particular neighbourhood as the litigant.  If such an insider would regard a particular situation created by the respondent as certainly offensive and continuously irritating, then the conduct complained of, in other words the gravity of the invasion is substantial.  (Vide VOGEL v CREWE AND ANOTHER 2003 (4) SA 509 (TPD) on p. 512 at par. 3 per De Vos J.)  This is so because the law relating to neighbour relations in general and the law of nuisance in particular has, as its primary aim, to create an equitable balance between the competing interests of the neighbouring  property owners in accordance with the acceptable norms of the particular society.  (Vide REGAL v AFRICAN SUPERSLATE (PTY) LTD 1963 (1) SA 102 (AD) at 107 A per Steyn CJ.)

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