Nuisance: the requirements, remedies and defences

Urbanisation, and the consequent magnitude of residential estates that are becoming increasingly dense and populated, requires individuals to abide by the municipal by-laws and regulations and to take their neighbours into consideration when conducting certain activities on their properties. It occasionally happens that someone is using their property in a way that negatively affects the use and enjoyment of someone living nearby. Such behaviour could potentially constitute a “nuisance”, and the aggrieved party will have remedy available to them.

Nuisance is defined as an occurrence where a person occupying land creates a state of affairs, or allows such state of affairs to exist, that unreasonably, unfairly and materially disturbs or annoys a person occupying another piece of land. The test for determining whether or not a nuisance constitutes an actionable nuisance which the aggrieved person can legally act against, is an objective test. The test is whether or not a normal person of sound and liberal tastes and habits will regard it as a nuisance. The standard applied is not that of a “perverse, particular or over-scrupulous person” as one must be willing to endure some discomfort or inconvenience emanating from the use of a neighbouring property. The infringement of one’s right to the reasonable enjoyment of one’s property (i.e., the nuisance) must furthermore be persistent and continual in order for such infringement to be actionable. Only a person who owns the affected property or lawfully occupies such property will have locus standi to institute legal action.

An interdict is usually the appropriate remedy. Such an interdict can either be prohibitory (which directs the guilty person to refrain from doing something), or it can be a mandatory interdict (which compels a person to perform a certain act). Damages for inconvenience or discomfort are not available as a remedy to aggrieved persons and actual damages will have to be proven if claimed.

There are also a few defences available to a defendant in a nuisance matter. The recognised defences are:

1. The act was done in the due and reasonable exercise of the defendant’s property rights;
2. No reasonable practicable steps could have been taken to prevent the disturbance;
3. The act was authorised by statute and could not be done without causing the disturbance or prejudice complained of;
4. The defendant has, through prescription, obtained the right to perform the act.

The defendant will usually bear the onus to prove the abovementioned defences.

Readers are advised to consult a legal adviser should they feel aggrieved by activities conducted by persons on neighbouring properties. The merits can then be assessed, and an application can be brought to the appropriate court in order to protect your rights. Such an application can also be brought on an urgent basis depending on the circumstances, in which case the court will grant an interim interdict with a rule nisi.

Reference List:

• Amler’s Precedents of Pleadings, 8th edition.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)