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.
Individuals are required to abide by the municipal by-laws and regulations and to take into consideration neighboring occupants when conducting activities on their properties (it should be noted that the rights of other tenants or owners should always be taken into account).
When an occupant of a property conducts himself in such a way as to negatively impact neighboring occupants, this behavior could constitute a nuisance.
The test to determine if certain conduct constitutes a nuisance is whether or not a normal person of sound and liberal tastes and habits will regard it as a nuisance.
The infringement has to be continual and persistent in order for it to be actionable.
The only person who has locus standi to institute legal action in such instances is the person who owns the affected property or the lawful occupier thereof (and accordingly, a party with legal standing that is affected by the nuisance).
The Supreme Court of Appeal in PGB Boerdery Beleggings (Edms) Bpk v Somerville 62 (Edms) Bpk states as follows:
‘An interference with the property rights of another is not actionable as a nuisance unless it is unreasonable. An interference will be unreasonable when it ceases to be a “to-be-expected-in-the-circumstances” interference and is of a type which does not have to be tolerated under the principle of “give and take, live and let live”. The determination of when an interference so exceeds the limits of expected toleration is achieved by invoking the test of what, in the given circumstances, is reasonable. The criterion used is not that of the reasonable man but rather involves an objective evaluation of the circumstances and milieu in which the alleged nuisance has occurred. The purpose of such evaluation is to decide whether it is fair or appropriate to require the complainant to tolerate the interference or whether the perpetrator ought to be compelled to terminate the activities giving rise to the harm. This is achieved, in essence, by comparing the gravity of the harm caused with the utility of the conduct which has caused the harm’.
In instances where a neighbor conducts activities that constitute a nuisance, the affected neighbor may approach the court for an interdict.
This interdict can either be probatory (this type of interdict instructs the perpetrator to refrain from committing certain acts) or it can be a mandatory interdict (this type of interdict compels someone to commit certain acts).
Examples of nuisances include (subject to your relevant municipal by-laws):
- No person is permitted to play drums, musical instruments, radio, television set, sound amplifier, loudspeaker or a similar device that produces or amplifies sound or allows it to operate so that it causes a noise nuisance.
- A fixed domestic machine must not discharge a continuous noise level greater than 52dB(A) between the hours of 7am and 10pm on any day when measured at a relevant position at a noise affected premise.
If notified of activities that constitute nuisance, a local authority may at any reasonable time, enter the premises of the perpetrator to conduct inspection of the premises and thereupon take the steps that would be necessary.
It is unfortunate the local authorities often do not assist in such circumstances, however, our Courts have assisted historically.
Feel free to contact us should you wish to discuss any related issue.