Nuisance - LECTURE NOTES PDF

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Summary

Nuisance Ownership:   Encroachment: is excluded from the examination.   Nuisance:   When we talk about nuisance, technical understanding must be understood. This term comes to us via English Law, yet our term is not identical to this English context. When one deals with nuisance we ar...

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Nuisance Ownership: Encroachment: is excluded from the examination. Nuisance: When we talk about nuisance, technical understanding must be understood. This term comes to us via English Law, yet our term is not identical to this English context. When one deals with nuisance we are dealing with the interference with the use and enjoyment of property. To experience nuisance does not require that you be the owner for nonowners can be entitled to the use and enjoyment of property; through their position would be entitled to use and enjoy that property. The scope of this use and enjoyment will vary with regard to the type of property under consideration. This section in Nuisance we look primarily on immovable property, since we are studying within the context of neighbor law. Nuisance will sub-divide, yet not to be seen as strict sub-divisions. More to be seen as a double meaning – narrow and wider. Nuisance in the narrow sense is known as annoyance, which concerns the interference with the health, convenience or comfort of the person. The interests that are affected would be personality and proprietary interests. Nuisance in the broad sense is when interference to the use and enjoyment of property can be caused by an unusual use of land. Nuisance in the narrow sense - interference with the health, convenience or comfort concerning personality or proprietary interest. If you are entitled to the use and enjoyment of property - personality clashes are not necessarily sufficient to ground claims in nuisance. Measured against actions and conduct but involves 'objective reasonableness'. Court will ask - whether the ordinary person, in the position of the complainant, would deem the conduct unreasonable. An annoyance is actionable if the annoyance is continuing, a once off incident would not ground a complaint. Continuing or likely to re-occur. Must lead evidence to show that the conduct is not tolerable to the ordinary person. Remedies 1. A prohibitory interdict - stop annoyance or unusual use of land 2. Nuisance action - if harm in patrimonial terms has been caused this allows for damage to be included with interdict. 3. Claim in delict - if only wish to claim for damages from a once off annoyance or unusual use of land. Tolerable Factors 1. De minimis - the law does not concern itself with trivialities. 2. Gravity of the harm must be considered and clearly evidenced. 3. Harm must be material or substantial.

4. Locality of conduct, 5. Time 6. Whether the conduct has social utility 7. Whether defendant has less harmful options 8. Benefit to the defendant. 9. Motive of the defendant 10. Personality of the plaintiff Focus is not only one party, balancing act must take place. Gien v Gien Owner of farm in cattle area was growing crops for personal use. He had device used for deterring animals from eating his crops. Made loud explosive noises. Disturbed neighbours cattle. Was of little benefit to him, could be achieved with less drastic measures. A nuisance was said to have occurred. Noise can be pursued but it must shown that the noise is intolerable. But what is the measurement of noise? Decibels - 80 and above is dangerous. Must be able to show how much noise there is, there are standards (South African bureau of Standards). For industrial use - for protection of neighbours and workers Reasonableness and fairness must be evaluated in the context within which the conduct complained of is carried out. Whether a situation constitutes a nuisance may be a matter of degree. A public nuisance is whether an event has an impact on a broader number of people. Public nuisance can be an issue in land invasions. Defences 1. Dispute the facts - extent of noise, duration etc. 2. May be able to prove that there is a servitude, even a potential servitude i.e. not registered. 3. May be statutory authority that permits the conduct - but authority must be exercised reasonably 

Coming to the nuisance - Not a good defence in itself to claim that nuisance existed before complainant arrived. Must involve a balance of interests.

E.g. Factors - locality, benefit to defendant, social utility of act, practicability of preventing harm. o Locality changing i.e. becoming more residential. o Status of plaintiff - particularly susceptible etc. o Gravity of harm o Is it ongoing? o Nuisance or annoyance? o

Defences - statutory authority - but are acts nevertheless ultra vires....