Nuisance Law South Africa

However, these properties do not need to be strictly adjacent – they can also be close to each other. In addition, as regards the legal situation of the parties to the dispute, it is also `clear that the nuisance could come from neighbouring land, although it is not caused by the owner or occupier or current user of the land, just as the nuisance could affect not only the owner, but also the tenant or occupant of the neighbouring property`. [54] This means that harassment can also be brought by or against non-owners (usually legitimate owners) such as tenants, users or other occupants of the property. Consequently, Van der Walt[55] refers to “neighbors” as “people who live together more or less closely as members of communities, citizens of the new constitutional democracy, without necessarily actually living or using adjacent plots.” In this context, the principle of reasonableness of the right to harassment aims to harmonize and balance respective rights, interests and obligations and to resolve disputes between neighbours. See the procedure below for noise nuisance if it is a recurring complaint. Having had occasion to weigh various constitutional rights, the court ignored the diversification and social conditions and customs of the neighbourhood as a whole. Even more regrettable, it appears that the use and enjoyment of a private landowner may outweigh the rights and interests of the wider community – something that the reasonableness standard is generally intended to take into account. If the Ellaurie court had correctly applied the adequacy test or adopted a more nuanced approach such as the interest-profit approach, it would have: (i) issued the prohibition on the grounds that the plaintiff`s lack of tolerance was unreasonable given the diversity of the neighbourhood; or (ii) granted the prohibition in restrictive terms,[132] so that the call to prayer could take place at limited (and reasonable) hours of the day or that sound amplification devices could not be used. Such a result does not reject the question of law as a whole in the sense that the question of who has a claim becomes irrelevant, but considers the question of law in a broader context; which has much more potential to discern a wider range of legitimate interests in a property dispute than is currently the case.

[133] The latter result would be based on the recognition of the social benefits of the call to prayer for the broader community as a means of affirming the identity and cultural diversity of the neighbourhood. [134] In this context, it is not necessary to develop the common law adequacy test, since the principle underlying the law of harassment – “give and take”, “live and let live” – when properly applied, already includes the idea of balancing respective rights and interests in the context of each individual case. The principle of reasonableness should therefore not necessarily be problematic if it is not applied in isolation, but in the context of the requirements expected by the Constitution. Determining how a constitutional rights paradigm may intersect with the law of harassment may reveal a difficult balancing exercise between expectations of different lifestyles. Such a balance would require a balance and compatibility of property rights and other constitutional rights and interests of diverse and changing neighbourhoods. [98] This is probably especially true in times of pandemic when the parties are confined to the borders of their homeland and living close to the neighbour can cause conflicts related to different lifestyles and preferences. Property rights may conflict with other fundamental human rights such as the right to equality (Article 9), the right to privacy (Article 14), personal security and development (Article 12), the right to exercise a profession (Article 22), the environment (Article 24), housing (Article 26), health (Article 27) and freedom of religion (Articles 15 and 28). These constitutionally protected rights could (and should) influence the understanding of reasonableness in harassment law. [99] This does not mean that the exercise of human rights in all cases amounts to an appropriate use of property. In this context, the courts have the task of ensuring that all considerations and factors are weighed in determining whether the use of the property constitutes harassment and liable to prosecution. This issue was raised recently in the Ellaurie judgment, where the Supreme Court of KwaZulu-Natal failed to properly apply the strong and established principle of adequacy in neighbouring law, which could have included a human rights dimension.

This decision will be discussed in the next section to highlight the fact that the courts may still have difficulty enshrining the Constitution in the area of harassment law. The legislation provides for public nuisances, especially in municipal ordinances. A municipal by-law is a law passed by a municipality to regulate the business and services it provides within its territory. A municipality has the power to approve a by-law in accordance with the Constitution of the Republic of South Africa. The impact of the Covid-19 pandemic has arguably exacerbated the need to repeat this premise. The pandemic will undoubtedly require an examination of at least some principles of neighbouring law, in particular the notion of “reasonableness” in the context of the law of harassment. This is not particularly problematic, since the parameters of the harassment law – particularly in the context of reasonableness – have already changed in light of the constitutional parameters. [22] Therefore, this article attempts to examine the concept of living closely together in mutual tolerance and tolerance during a pandemic and the profound implications for cases of harassment that causes anger or discomfort (harassment in the strict sense). One would think that living in a community would ensure a safe and peaceful way of life. Unfortunately, there are a large number of people who move into areas and complexes and believe that it is acceptable to continue living in larger detached areas where parties, singing, shouting, loud music, barking dogs, boring children, and motor vehicles spinning or screaming do not interfere with their neighbors.

Very often, these misguided people are also tyrants, and any attempt to beg for their consideration results in a simple escalation of the same or worse behavior. See case studies ( In assessing and balancing the rights and interests of private landowners and their neighbours, it is questionable whether common law development in the area of harassment is necessary, especially since the reasonableness test is quite flexible and already takes into account the context. [94] The article is divided into three parts.