5 NUISANCE

This delict is usually applicable to occupiers of land or premises .While an

occupier has is at liberty to occupy, use and enjoy their land they should do so in
an unreasonable fashion that interferes with the rights of their neighbors .Thus the
law seeks to provide an equitable balance in conflicting rights in an equitable
fashion and provide a remedy to the wronged party/neighbor. The law of nuisance
is divided into two

5.1 PRIVATE NUISANCE

This is applicable where there has been interference on one neighbor or only a
limited number of neighbors

Requirements

1 the interference must be an on-going one and not just one single , isolated
or random act
2 There must be unreasonable use of land by D which causes an
unreasonable and unjustifiable degree of interference with P’s rights to
use and enjoyment of his land. In this investigation the salient factors
considered are;
 Nature of locality (ie rural, urban, industrial etc)
 Was the degree of I interference trivial or substantial
 Whether the user is a common and ordinary one given the nature of
the locality ( If D is a normal or common user but interferes with
his neighbor’s land with the sole purpose of achieving adverse
effects, he will be liable because he was actuated by malice which
is also known as spite-fence situation)
  If the nuisance arose in the course of D taking steps to protect his
property, where there no less drastic alternatives that could be
employed.

Usually the reasonable man test is applied and only normal sensitivities of ordinary
citizens will be considered and not that of abnormally sensitive individuals to noise
or smell. Damages can only be claimed in our law if there has been patrimonial
loss. In the absence of patrimonial loss but irritation then an interdict is the sole
remedy.

See Francis v Roberts 1972 (2) RLR 238

Gien v Gien 1979 (2) SA 1113 (T)

Malherbe v Ceres Municipality 1951 (4) SA 510 (A)

5.1.1 PUBLIC NUISANCE

This is nuisance which affects the public at large or some considerable section of
the public, It often results in class actions mostly against corporate that pollute the
environment with toxic effluence or noise from their operations. Public nuisance is
largely a subject matter of controls contained in legislation such as those that
regulate pollution affecting public health etc .Some examples of legislation Public
Health Act , Factories and Works Act. Environmental Management Act

5.2 Actio de effuses vel dejectis

This action is brought against an occupier of premises from whose premises

something either fell, thrown out or poured thereby causing injuries or harm to P.
This is a strict liability action and there is no need to prove negligence on the part
of the occupier in order to obtain damages.

5.3 Actio de positu vel suspense

Any object which is dangerously suspended or placed on a building or over a

public way creating a risk of injury.A good example are scaffolds where there is
construction underway in a public place. The remedy in this case is an interdict to
stop the continuation of the hazard.