A SHORT ARTICLE ON THE TOPIC ON NUISANCE LAWS IN SOUTH AFRICA
INTRODUCTION
This article will briefly discuss what constitutes a nuisance and possible remedies within a South African law context.
DEFINITION
A “nuisance” can be described as any form of interference or having a negative impact on another person’s right to the use and enjoyment of their property. A nuisance is something that is caused through conduct or behaviour and which causes inconvenience or damage which is material.
Conflict between neighbours generally occur through the use of their immovable property. In this context a nuisance can range from encroachment of tree roots from your neighbour’s property onto your property, over hanging branches, noise pollution, obstruction of your view or light or an extension of a boundary wall.
FACTORS FOR CONSIDERATION
Our courts usually use an objective reasonable standard test to determine whether the nuisance amounts to an unreasonable use of property. In other words, it is usually a balancing act between one person’s right to the use and enjoyment of their property against the rights of another person’s right in relation to their property. It is expected of neighbours to be tolerate of one another within reason.
Our courts consider various factors such as:
Materiality of the infringement;
Motive;
Proportionality;
The lease restrictive means to rectify the situation.
The above is not a closed list and are used by our courts as a guideline. It is clear from these factors that the nuisance must be real and must be a material intrusion of a person’s rights. Further, you must be able to show reasonable tolerance for the ordinary use of the land or property in question. For example, a person who resides within the CBD, would have difficulty complaining about noise pollution. In instances where a nuisance is “minor” our courts may find that the wrongful party pay compensation or be prohibited with their wrongful conduct.
REMEDIES
We strongly recommend that the first step is to approach your neighbour and discuss the issue amicably. If this fails, the next step is to lodge a complaint with your local municipality. Municipal by-laws typically regulate issues such as noise levels or building height, and contravening these can result in fines or legal action.
If the problem persists, an option would be to proceed with an interdict. An interdict will stop the person from continuing with their conduct. Caution must be exercised with this option as you will be required to show that there is no other possible solution to your problem.
You can also seek a claim for damages. You will be required to show that your property has suffered some form of damage and that this damage was as a result of the nuisance.
CONCLUSION
In summary, people must use their land or property reasonably and are required to tolerate reasonable “annoyances” from their neighbours who in turn are enjoying the use of their land or property in a lawful manner.
It is important that people appreciate the above and not feel compelled to take the law into their own hands.
Nuisances can vary greatly and are subject to your particular circumstances that you and your property are in. It is strongly recommended that neighbours try and resolve a dispute as amicably as possible between themselves. However, should all else fail, litigation may be the only recourse.
Kindly note that all matters are dealt with on a case-by-case basis. For specific assistance we strongly encourage you to contact us for formal advice. You may contact us on 031 8359700 to arrange a consultation.
Article by Bianca Griffiths