OWNERSHIP

NATURE

294  Concept  “Ownership” is, together with “family” and “contract”, one of the basic concepts of private law. Ownership is not only important in the legal sphere but also plays a significant role in the social and economic order. Together with the notion of “contract” it forms the basis of commercial exchange on which the economy of the world is based.1 This is especially true for Western society where the institution of private ownership is highly valued. Although socialist notions have to some extent played a part in the development of the new South African society, the trend is towards controlled privatisation of ownership rather than nationalisation or bringing more sectors of the economy into public ownership. This trend, together with the growing investment in incorporeal property like shares, bonds and insurance policies, means that the institution of private ownership, together with labour, is still a force to be reckoned with in modern commercial life.2

1See in general Van der Merwe Sakereg 169; Asser Het Nederlands Burgerlijk Recht part II Zakenrecht 15 et seq; Pitlo Het Systeem van het Nederlandsche Privaatrecht 287; Van Haersole 1961 WPNR 4701 523 et seq; Ely Property and Contract in Their Relations to the Distribution of Wealth 94–117.

2See Valkhoff 1957 Rechtsgeleerd Magazijn Themis 21; Pinckaers Eigendom In Een Nieuwe Tijd 233 et seq.

295  Definition  Ownership is potentially the most extensive private right which a person can have with regard to a corporeal thing. Of all the real rights ownership potentially confers the most complete or comprehensive control over a thing. This becomes apparent when one contrasts ownership with limited real rights such as mortgage, pledge, servitude and lease which confer only certain clearly defined powers on the holder of the real right.1 It is impossible to draw up a complete catalogue of all the powers conferred by ownership. In principle, ownership entitles the owner to deal with his thing as he pleases within the limits allowed by law.2

1See titles MORTGAGE AND PLEDGE; SERVITUDES; LEASE. See also par 232 ante.

2Grotius Inleidinge 2 3 10; “Volle is den eigendom waer door iemand met de zaek alles mag doen nae zijn geliefte ende t’ sijnen baten wat by de wette onverboden is”; Van Leeuwen Cens For 1 2 13 1; Van der Keessel Prael ad Gr 2 3 10; Johannesburg Municipal Council v Rand Townships Registrar 1910 TPD 1314 1319 (citing the Pandectist Von Savigny System des heutigen roemische Recht 1 59 (367): “Dominium is the unrestricted and exclusive power which a person has over a thing”); Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 106; Gien v Gien 1979 2 SA 1113 (T) 1120. See also Bartolus ad D 41 2 17 1 fn 4: “ius de re corporali perfecte disponendi nisi lege prohibeatur”; Van der Walt 1986 THRHR 305–321; Pienaar 1986 TSAR 295–308; Josson Schets van het Recht van de Zuid-Afrikaanse Republiek (1897) 15 cited in Van der Walt 1986 THRHR 323 fn 150. See further in general Milton “Ownership” in Southern Cross 692–699. For a review of the definitions of ownership in South African law, see Van der Walt 1988 De Jure 17 et seq.

296  Content  Ownership is in principle a most comprehensive right embracing not only the power to use (ius utendi), to enjoy the fruits (ius fruendi) and to consume the thing (ius abutendi),1 but also the power to possess (ius possidendi), to dispose of (ius disponendi), to reclaim the thing from anyone who wrongfully withholds it or to resist any unlawful invasion of the thing (ius negandi).2

The powers enumerated above do not necessarily provide a complete list of the powers inherent in ownership.3 Even though an owner has disposed of all the abovementioned powers he can still remain the owner of a thing. By granting third parties powers of use, enjoyment, and so on, he only suspends his power to exercise his ownership to that extent. Once the powers granted are extinguished, his

ownership automatically becomes unencumbered again. This quality of ownership is referred to as the “elasticity” of ownership and in this context ownership is sometimes called a “reversionary right”.4

What has been stated thus far concerning ownership presents the so-called traditional perception of ownership as an absolute, exclusive and abstract right. The development of new forms of ownership and social and political changes have led to a radical reconceptualisation of the notion of ownership.5

1According to Hahlo and Kahn Union of SA 578 the Latin word “abuti” has the meaning of consuming, spending or exhausting and does not imply the stigma of abusing or misapplying the thing. See also King v Dykes 1971 3 SA 540 (RA) 545 546.

2D 7 6 5 et seq; Van der Linden Koopmans Handbook 1 7 1; Johannesburg Municipal Council v Rand Townships Registrar 1910 TPD 1314 1319; Chetty v Naidoo 1974 3 SA 13 (A) 20. See also Lee Introduction to Roman-Dutch Law 121; Maasdorp Institutes vol 2 25; Carey Miller “Systems of Property: Grotius and Stair” in Carey miller and Meyers (ed) Comparative and Historical Essays in Scots Law 16–17.

3See Van der Merwe Sakereg 174.

4See Van der Merwe 174; Cowen New Patterns of Landownership 72 et seq.

5See par 298 post; Van der Walt 1992 De Jure 446–448, 1998 Acta Juridica 239 et seq.

297  Ownership as an “absolute”, exclusive and abstract right1  Although ownership is potentially the most comprehensive power with regard to a thing, it has never been considered absolute in the sense that an owner can do whatever he pleases with the object of his ownership.2 The only periods in history when ownership was regarded as almost absolute and unencumbered were probably at the beginning and end of the Roman period and again after the French Revolution. During the Middle Ages land in Western Europe was subject to feudal tenures. Landlords retained the ownership of land but they did not have possession; tenants held land by virtue of a perpetual and heritable right but they did not have ownership. The tenant’s interest in land was later identified as indirect ownership (dominium utile), in contradistinction with the landlord’s direct ownership (dominium directum).3 At the end of the feudal period, the nature of the tenant’s interest came to be identified as true ownership subject to a servitude or charge in favour of the former landlord.4 During the French Revolution, with its slogan that private ownership was holy and inviolable, most of the perpetual tenures and charges upon land were done away with. The view that ownership is unrestricted was further developed by the seventeenth and eighteenth-century exponents of the individualistic doctrine of natural law (notably Grotius and Kant),5 the concept of economic liberalism which developed at the beginning of the nineteenth century6 and the nineteenth century German school of jurisprudence known as the Pandectists.7 However, since the nineteenth century the notion of ownership has to an increasing extent been hollowed out until only a shadow of the once holy and inviolable power remains. With the growth of socialism and the notion that a person’s control over a thing should rather be seen as that of a custodian to cherish (especially natural) resources for the benefit of future generations, ownership was systematically subjected to more and more public law restrictions. Furthermore the age-old maxim “sic utere tuo ut alienum non laedas” has been assimilated into the modern doctrine of abuse of rights which operates in the sphere of neighbour law and places severe restrictions on especially the ownership of land.8

1See in general Birks 1985 Acta Juridica 1–38; Visser 1985 Acta Juridica 39–52; Lewis 1985 Acta Juridica 241–266.

2See eg the following illustration by Birks 1: “To take an extreme example, even if a society which did not go to the length of forbidding citizens to own firearms could not allow owners to use their guns just as they please: a man could not conceivably justify shooting another by saying that he was merely using his own weapon.”

3See Van der Walt and Kleyn in Visser (ed) Essays on the History of Law 235–243; Van der Walt 1992 De Jure 450–451.

4See in general Philback 1938 University of Pennsylvania Law Review 707–709; Planiol and Ripert Traité pratique de droit civil francaise 4.

5

Grotius reinterpreted both the definition and the classification of ownership in the scheme of patrimonial rights in the light of the philosophical view of ownership as the virtually unlimited right which provides the individual with the necessary space to exercise personal freedom; see especially Van der Walt 452–453, “Der Eigentumsbegriff” in Feenstra and Zimmermann (ed) Das romisch-hollandisches Recht 485 and the following summary by Milton in Zimmermann and Visser (ed) Southern Cross 693: “In the Grotian scheme of things the medieval plurality of property rights is replaced by the concept of only one form of ownership, which provides the owner with a fundamentally unlimited right of disposal fitting for an individual characterised by moral freedom. Simultaneously, it constitutes the model against which all patrimonial rights are evaluated.

6Basic to this idea was that ownership be freed from its social and political limitations in order to facilitate the free exploitation of property in the market place. Full moral development of the individual was only attainable if an owner was allowed to exploit his property with the minimum of interference; see Van der Walt 1992 De Jure 453; Milton 693.

7The Pandectists transformed the theories of Grotius into a comprehensive scientific system of subjective rights by abstracting from Roman law sources a strict logical distinction between real and personal rights and between ownership and limited real rights and by ascribing the characteristics of absoluteness, exclusivity and abstractness to ownership. The Pandectists presented ownership as an abstract and logical universal concept that formed part of a larger whole within the abstract logic of the theory of subjective rights. Ownership thus exchanged the realm of social-power relationships and occupied a supreme position in the mathematically calculated abstract theory of subjective rights; see Van der Walt 1992 De Jure 453–455; Milton 694. For the Pandectist influence on the South African concept of ownership, see Milton 696–697; Visser 39; Van der Walt 1986 THRHR 307, 1993 THRHR 569–689.

8Van der Merwe Sakereg 177.

298  Modern concept of ownership  With the development of new patterns of landownership, such as sectional title, group and cluster housing, property time-sharing, nature conservation areas and ownership of airspace,1 it became apparent that the traditional Grotian-Pandectist notion of ownership as full and uninhibited power over property no longer fitted into the modern socio-economic context.2 Planning law, especially conservation legislation, has transformed aspects of the traditional concept of landownership3 and in the course of time not only the owner’s right of use and enjoyment but also the power to vindicate property has been eroded.4 The influence of social, economic and political forces5 led to suggestions that the traditional notion of ownership as autonomous and individualistic should be replaced by a more satisfactory jurisprudential formulation of ownership which recognises that ownership carries with it social obligations, that the content of ownership is determined by the special characteristics of the object to which it pertains,6 and that ownership needs to be broken down and rendered more malleable to comply with the requirements of the day.7 Following on this, ownership should no longer be regarded as a universal and timeless set of abstract and neutral principles based on the authority of rational (Grotius) and scientific (Pandectist) reasoning. By contrast, the traditional notion of ownership should be subjected to criticism on moral and expediency grounds and adapted to the changing needs of the society in which it functions. Thus recent developments in nature conservation and the land reform policy of the government should not be seen as pernicious and abnormal inroads into the sanctity of ownership but rather as natural and beneficial consequences of allowing the concept of ownership to fulfil its social function by inter alia eradicating fundamental inequalities that exist in contemporary society.8

This approach has received fresh impetus with the introduction of the new constitutional dispensation in 1994.9 Espousing a much wider content than the traditional private law concept of ownership, the constitutional notion of property underscores the dichotomy between individual security and freedom promoted by the traditional ownership concept on the one hand and the obligatory social welfare function of property on the other. From a private law perspective, property rights are restricted on a horizontal level by the rights and interests of third parties. From a constitutional perspective the scope of a person’s property rights is determined by limitations in the public interest. These are limitations imposed on a vertical plane comprising not only restrictions vis-à-vis an arbitrary state authority but also restrictions acting as a counterweight against an inequitable balance of power between individuals inter se. The state is therefore called upon in the interests of society at large to exercise its power of control against dangers and disadvantages arising from

private, autonomous use of property and allocation of things. The main purpose of the constitutional property guarantee is not to warrant the continuation of the status quo and the individual owner against any interference, but to establish and maintain a balance between the individual’s existing position and the public interest. Imbalances that might occur through an emphasis on private autonomy and individual freedom, in the present private law of property will have to be corrected through the application of constitutional values of equality and human dignity. This might for instance restrict the resale or the disposal of property inter vivos or on death and the interests of the individual may have to be subjected to controls, regulations, restrictions, levies and other measures to advance or protect the public interest, possibly (albeit controversially) without or with lesser compensation.10 The aim of the constitutional property clause is to enhance the individual’s capacity to participate in important societal changes, while simultaneously upholding the individual’s ability to determine his own economic destiny. The success of the reform measures11 will be determined by the capacity of the law to resolve the inherent conflict between individual autonomy and an individual’s social duty inherent in the equality clause. The judicial task is to balance the protection of ownership of individuals against the need for regulation and expropriation of property rights for the common good; however, if a fanatical focus were to be placed on the retributive character of the property clause this might lose sight of the importance of maintaining individual security in the context of property law.12

The policy issues involved in a recent case13 illustrate this approach.14 In this case the surrounding landowners applied for an interdict to prevent the settlement of homeless persons on a nearby plot of land in terms of the provisions of the Less Formal Township Establishment Act.15 This dispute highlights the problem of how two apparently irreconcilable aims inherent in the Act, namely the broadening, acceleration and facilitation of access of the landless to land and the protection of existing private property rights could be skilfully accommodated or “managed”.16 In the application for an interim interdict, the court favoured the private property rights of the predominantly white middle-class landowners above the competing interests of landless Blacks. In the application for a final interdict and the appeal from that decision, the court favoured the landless Blacks and pointed out that the viability of settlements would be frustrated if settlements were not allowed in the vicinity of established urban areas.17 This inconsistency in adjudicating between the interests of the “propertied” and the “propertyless”18 could be solved either by the constitutional entrenchment of the right to housing19 or by a comprehensive reconceptualisation of the notion of ownership20 on the lines suggested above. Since the right to housing is not constitutionally entrenched,21 a functionalisation of the notion of ownership remains the only alternative. By highlighting the object of ownership, namely land, this could be achieved by accepting that a characteristic feature of land is that it is such an important resource that it should be made accessible to all South Africans.22 Alternatively, one should move towards a diversified system of land rights in which no single real right (ownership) dominates over another. In such a scenario, the competing interests of the landowners (“propertied”) and the landless (“propertyless”) could be determined in a process of dialogue and negotiation facilitated by the state officials concerned with the implementation of the Act. In such circumstances, the Diepsloot landowners would no longer hold a trump card, but would negotiate on equal terms with the landless to reach an acceptable accommodation.23

1See in general Pienaar 1989 THRHR 216–227; Milton Southern Cross 674–675.

2See Cowen The Transformation of the Concept of Ownership as Plena in Re Potestas 67.

3See Milton 1985 Acta Juridica 267, Southern Cross 682–683.

4Lewis 1985 Acta Juridica 241–262; Carey Miller Essays in Honour of Ellison Kahn 87–107, 1999 SALJ 755 et seq. The owner’s power of vindication is also restricted by the reinforcement of lesser rights found in Land Reform (Labour Tenants) Act 3 of 1996 and Interim Protection of Informal Land Rights Act 31 of 1996.

5In relation to land rights this new dispensation seeks to address the wrongs of the apartheid system where land was “used as an instrument of oppression and racial discrimination” in that Blacks were dispossessed and denied ownership of land on political grounds: Lewis 1985 Acta Juridica 262, 1992 SAJHR 389; Cross 1992 SAJHR 305; Van der Walt 1992 SAJHR 431; Budlender 1992 SAJHR 295.

6See with regard to sectional ownership Van der Merwe 1974 THRHR 113 et seq, 1992 StellLR 131.

7See Cowen 70–72. See also Kroeze 1993 De Jure 42–58.

8

See in general Van der Walt 1990 De Jure 1–45, 1992 DJ 446–457 455–457 and the conclusion (457): “the history of ownership shows that the traditional perception of ownership as an absolute, exclusive and abstract right, and the myth of universality, abstract neutrality and superiority attached to this perception are dispensable. It seems much wiser to opt for a perception and treatment of land rights which reflect the nature and the function it serves in society, given the particular circumstances of a specific locality and time.”

9This was brought about by the abandonment of apartheid and the promulgation of Constitution of the RSA 200 of 1993, which enabled democratic elections, and the implementation of a Bill of Rights followed by Constitution of the RSA 108 of 1996; see inter alia Chaskalson 1994 SAJHR 389.

10For a case of expropriation without compensation, see Jooste v The Government of the South African Republic (1897) 4 OR 147 (discussed by Badenhorst and Tempelhoff 1996 TSAR 398–408).

11For recent land reform measures, see Carey Miller 2000 Journal of African Law 167 et seq.

12See in general Mostert The Relevance of Constitutional Protection and Regulation of Property for the Private Law of Ownership in South Africa and Germany. A remark on this paragraph is that expropriation for a public purpose was always possible and remains so. The only thing that has changed is that the perception of public purpose has been broadened to include the new reform measures as well as important social welfare ideas. See also the judgment of Horn AJ in Port Elizabeth Municipality v Peoples Dialogue on Land & Shelter 2000 2 SA 1074 (SE) who relies on Grotius to justify new reform measures.

13Diepsloot Residents’ & Landowners’ Association v Administrator, Tvl 1993 1 SA 577 (T) (interim interdict); 1993 3 SA 49 (T) (final interdict) and 1994 3 SA 336 (A) (discussed by De Waal 1993 DR 292–293, 1993 DR 679–680; Van der Merwe and Pienaar 1993 Annual Survey 328–332, 1994 Annual Survey 311–314; Roux 1993 SAJHR 593–548; Van der Walt 1998 Acta Juridica 240–242). It was alleged that the creation of an informal settlement in terms of Less Formal Town-ship Establishment Act 113 of 1991 caused a nuisance on account of a likely increase in criminal activity, smoke and dust pollution, pollution of the underground water supply and a diminution in land values. With regard to the grant of a final interdict the then appellate division had no difficulty in finding a clear right and that there was no other satisfactory remedy (60D), but had difficulty in accepting that an injury was actually committed or reasonably apprehended. The burden was thus on the applicants to establish on the balance of probabilities the nature and extent of the nuisance complained of in accordance with the principles of neighbour law and nuisance. Applying Bloemfontein Town Council v Richter 1938 AD 195 the court found that once a defence was established by the respondent, the onus was on the applicant to prove that the extent of the nuisance could have been lessened by the adoption of another reasonably practicable method. The court pointed out that the Administrator had wide powers in terms of ss   2(1) and 3(1) read with ss   2(3) and 3(5) to settle a large number of people. This included the suspension of servitudes and other restrictive conditions of title and the elimination of a whole range of town-planning provisions for the particular area. These powers coupled with the fact that s   29 apparently abrogated the audi alteram partem rule, led the court to conclude that the legislature envisaged interference with the private law rights of neighbouring owners as a result of the exercise of such powers (64G–H). See also the decision of the court a quo in Diepsloot Resident’s & Landowner’s Association v Administrator, Tvl 1993 1 SA 577 (T) 583G–584B. The then appellate division found that the circumstances were such that it was impossible to achieve the aims of the Act without interfering with the private rights of others and that the intrinsic nature of the Act was such that its execution inevitably involved the disturbance of common law rights (65A). The various nuisances feared were a necessary consequences of the exercise of the powers conferred on the Administrator to establish an informal settlement in the area. The respondent thus acted in terms of an implied statutory authority and the applicants failed to show that the nuisance could have been avoided by other practicable measures (69B–C). The application was dismissed and the interim interdict previously granted dis-charged. In the absence of an express provision on interference, the supreme court of appeal accepted the following: the principle that an intention to interfere cannot be presumed if applied to public undertakings; that an intention of positive conduct in spite of interference with common law rights might fairly be inferred if the work authorised is localised and involves a specific operation in favour of the public — if interference with a common law right is unavoidable the court will infer a legislative intention that such right might be infringed (345G–H 345I–J). If the

interference was justified, statutory powers had to be exercised in a reasonable manner taking reasonably practicable precautions to lessen the extent of the interference. In this context, the court regarded it as permissible to take post 1991 developments into account, namely laws repealing discriminatory legislation dealing with ownership and occupation of land, rapid increases of urbanisation that led to squatting in urban areas and the fact that the Act was a response to circumstances necessitating a speedy and orderly settlement of homeless persons. The legislature contemplated the settlement of large numbers of impoverished persons in an informal manner in urban areas as part of the urbanisation process and the resolution of the squatter problem (349D–E). Thus it was unavoidable that substandard settlements in close proximity to residential areas with adverse effects on surrounding areas would be created (349F–G). The legislature thus contemplated that such settlement might result in interference with the common law rights of landowners and the statutory authority to create such settlements despite the adverse affect on surrounding land-owners was therefore inherent in the grant of such powers (349H–J).

14See especially Roux 539–548.

15113 of 1991.

16See Roux 544. The legislation is directed at balancing the competing interests of the landowners, on the one hand, and the land-less, on the other, in the most suitable, feasible and least intrusive manner possible.

17Roux 544–545.

18For the use of these striking expressions, see Roux 545.

19Roux 545; Budlender in Van der Walt (ed) Land Reform and the Future of Landownership in South Africa 45, 1992 SAJHR 295–297.

20Roux 546 –547; Van der Walt 1992 SAJHR 431, (ed) Land Reform and the Future of Landownership in South Africa 21–35.

21Roux 547 maintains that the desired functionalisation of ownership can be better achieved by a constitutionally entrenched provision on the lines of German Basic Law art 14 which guarantees property and at the same time states that property carries with it responsibilities and must serve the public weal. Such a provision limits every right of property in the public interest and thus provides space for interpreting a legislative provision against the background of a non-justiciable right to housing.

22Roux 546 547.

23Roux 547. See also the more recent case of Port Elizabeth Municipality v Peoples Dialogue on Land & Shelter supra in which Horn AJ stated that Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 was a legislative attempt to balance the right of property owners to enjoy their property to the exclusion of all others and the basic needs of shack dwellers and squatters who have through circumstances beyond their control been caught up in a type of nomadic existence (1082J-1083A). He thus describes new land reform legislation as an attempt on the part of the state to regulate land redistribution for the common good and quoted Grotius De Iure Belli ac Pacis 6 1 6 and Huber HR 2 2 8 in support.

LIMITATIONS

INTRODUCTION

299  General  Apart from limitations involved in the reconceptualisation of ownership, the potential power of an owner to deal with his property as he pleases, has since early times been subject to various limitations.1 These limitations can be divided into limitations imposed by public law and limitations imposed by private law. Public law restrictions are imposed on all owners of a particular kind of property either for the benefit of society as a whole or in the interests of certain sections of the community.2 Private law restrictions are those imposed under the rules of neighbour law or those imposed by the owner himself, for example by granting a limited real right, like a servitude, to an

outsider.3 Neighbour law restrictions are in turn divided into restrictions imposed in terms of the general concept of “nuisance”4 and those imposed in terms of certain casuistic traditional neighbour law rules.5

1See in general Van der Merwe Sakereg 176–177 183–185; Kleyn and Boraine Property 164–165.

2See par 300 post. See also Stein and Shand Legal Values in Western Society 223.

3See titles MORTGAGE AND PLEDGE; SERVITUDES. An owner’s power to deal with his thing can also be limited by the granting of a personal right, eg in terms of an agreement of loan for use to an outsider; see Kleyn and Boraine 57 et seq; Van der Merwe 183.

4See par 303 post.

5See par 316 post.

300  Public law restrictions  In terms of the constitution1 an individual rightholder may not be deprived of his property, nor may his property be expropriated, unless certain requirements are met. Expropriation, which arises where the state takes away property and either keeps it for itself or transfers it to someone else, will be dealt with below.2 Deprivation arises where the state leaves property in private hands but imposes restrictions on its use. Examples of deprivations are the statutory withdrawal of liquor licences, zoning statutes preventing a homeowner from running a business from home, urban planning legislation preventing a landowner from erecting a multi-storey building in a residential area and environmental legislation preventing a farmer from ploughing near a river.3 Deprivation may only take place “in terms of law of general application, and no law may permit arbitrary deprivation of property”.4 The first requirement means that a deprivation of property must be authorised by law, and that that law must apply to everyone and not target a particular individual or group of individuals. Non–arbitrary deprivation of property means that the state exercises its deprivation power in accordance with substantive as well as procedural due process. Substantive due process requires that the relevant law is not arbitrary in its substance in that there is no rational connection between the deprivation and a legitimate government purpose. Procedural due process requires that deprivation of property be in accordance with clear and fair procedures. This requirement will not be met where legislation confers a discretionary power of deprivation without specifying sufficient legal criteria detailing when the power should be exercised.5

If these requirements are met both the ownership of movables and the ownership of land can be limited by restrictions imposed by public law.

The ownership of movables is restricted by inter alia the Road Traffic Ordinances6 of the various provinces controlling the use of motor vehicles; the Animals Protection Act7 rendering cruelty to animals a punishable offence; the Livestock Brands Act8 making the branding of certain animals compulsory; the Dangerous Weapons Act9 and the Arms and Ammunition Act10 controlling the possession and use of dangerous weapons and ammunition; and the Broadcasting Act11 controlling the use of a radio and a television set without a licence.

The ownership of land in general was in the past severely restricted by the Group Areas Act12 which limited the ownership of particular land to a particular race. Currently the ownership of land in general is restricted by the Physical Planning Act13 controlling the subdivision of land zoned for industrial purposes; the Expropriation Act14 consolidating the various statutes dealing with expropriation; and the National Parks Act15 controlling the use of national parks.

The ownership of agricultural land is further limited by the provisions of the Agricultural Pests Act16 for the control of weeds and pests; the Advertising on Roads and Ribbon Development Act17 inter alia placing restrictions on the display of advertisements which are visible from a public road and the deposit or abandonment of disused vehicles and other machinery in the vicinity of a building restriction road or of a main road; the Fencing Act18 regulating the compulsory fencing of agricultural plots of land; the Subdivision of Agricultural Land Act19 aimed at prohibiting the subdivision of agricultural land into uneconomic subdivisions; the Mountain Catchment Areas Act20 aimed at the protection of certain areas declared mountain catchment areas; the Forest Act21 which controls afforestation; the Designated Areas Development Act22 aimed at preventing the gradual depopulation

of agricultural areas especially those on the borders of the Republic; and the National Key Points Act23 in terms of which certain places or areas are declared national key points in the interest of national security thereby subjecting the owners to the duty of safeguarding such points.

The ownership of residential land is restricted by the provisions of the various Town Planning Ordinances;24 the Community Development Act25 which controls the erection of houses in certain areas; the Atmospheric Pollution Prevention Act26 providing inter alia for smoke-free zones; the National Heritage Resources Act27 which protects heritage resources; the Health Act28 aimed inter alia at controlling unhygienic premises; and the National Building Regulations and Building Standards Act29 prescribing what kind of building may be erected.30

1Constitution of the RSA 108 of 1996 s   25 .

2See par 356 et seq post.

3See De Waal, Currie and Erasmus Bill of Rights Handbook 326–327.

4S   25(1) .

5De Waal, Currie and Erasmus Bill of Rights Handbook 327–329; Roux New Land Law 1–34 -1–35; Carey Miller and Pope Land Title in South Africa 298–301.

6Eg Ord 21 of 1966 (Tvl).

771 of 1962.

887 of 1962.

971 of 1968.

1075 of 1969.

114 of 1999.

1236 of 1966. For a discussion of the provisions of this Act, see Kleyn and Boraine Property 166–168; Raath 1983 De Jure 110; Schoombee 1985 Acta Juridica 77–118. This Act was repealed by Abolition of Racially Based Land Measures Act 108 of 1991.

1388 of 1967.

1463 of 1975; see in general Gildenhuys Onteieningsreg; Van der Merwe Sakereg 177–178.

1557 of 1976.

1636 of 1983. See also Conservation of Agricultural Resources Act 43 of 1983 which is aimed at the conservation of the natural and agricultural resources of the Republic by the maintenance of the production potential of the land, by the combating and prevention of erosion and weakening or destruction of water resources, and by the protection of the vegetation and the combating of weeds and invader plants. For a summary of the main provisions of these Acts, see Van der Merwe 1983 Annual Survey 224–225. See also S v Buys 1990 1 SA 101 (A).

1721 of 1940; see Kleyn and Boraine 189–190; Rabie and De Ville 1996 THRHR 436–457; Dormehl v Gemeenskapsontwik-kelingsraad 1979 1 SA 900 (T) 905–906.

1831 of 1963; see Kleyn and Boraine 165–166 and par 415 post. For case law, see inter alia Bakrivier (Edms) Bpk v Fourie 1984 3 SA 29 (A) (discussed by Van der Merwe 1984 Annual Survey 289–290); Gelukspruit Plase Bk v Nooitgedacht Karakoel Boerdery (Edms) Bpk 1992 2 SA 256 (NC); Aden Landgoed BK v Van der Walt 1996 3 SA 957 (A).

1970 of 1970; see inter alia Tuckers Land & Development Corp (Pty) Ltd v Wasserman 1984 2 SA 147 (T); Smith v Tuckers Land & Development Corp (Pty) Ltd, Tuckers Land & Development Corp (Pty) Ltd v Smith 1984 2 SA 166 (T); Gien v Gien 1984 3 SA 54 (T); Pienaar v Van Heerden 1985 2 SA 337 (W). The future application of this Act was discussed during the land reform debate. The original aim of the Act was to prevent the subdivision of farmland into small uneconomic land parcels. In practice it has, however, been used as a zoning mechanism to prevent the subdivision of land for residential purposes, thus preventing unauthorised change of use. After the publication of the South

African Land Policy in April 1997 the prohibition on the subdivision of agricultural land was lifted with the commencement of Subdivision of Agricultural Land Act Repeal Act 64 of 1998. One of the aims of the repeal was to expedite the release of land to aid land reform programmes. Caution should, however, be exercised less fertile agricultural land be lost to a plethora of unviable settlements. See also Carey Miller and Pope Land Title in South Africa 429.

2063 of 1970.

21122 of 1984, summarised by Van der Merwe 1984 Annual Survey 260–261.

2287 of 1979, summarised by Van der Merwe 1979 Annual Survey 218–219.

23102 of 1980, summarised by Van der Merwe 1980 Annual Survey 229–230.

24See in general Milton 1985 Acta Juridica 267–288.

253 of 1966.

2645 of 1965.

2725 of 1999.

2863 of 1977, summarised by Van der Merwe 1977 Annual Survey 221.

29103 of 1977, summarised by Van der Merwe 1977 Annual Survey 220–221.

30On public law restrictions on land, see further in general Birch 1957 SALJ 420; Van Reenen Land: Its Ownership and Occu-pation; Rabie 1985 Acta Juridica 289–314.

Repealed ActAct 36 of 1966 has been repealed by s 48 of Act 108 of 1991

Repealed ActAct 87 of 1979 has been repealed by s 10 of Act 45 of 2001

301  Private law restrictions  In the case of private law restrictions, the extent of ownership is limited in the interest of private individuals. The unencumbered exercise of the powers of ownership is restricted in order to obtain harmony in the case of conflicting ownership interests. Private law restrictions on ownership find special application in the sphere of neighbour law which is aimed at achieving harmony in the relationship between neighbouring landowners. However, the rules of neighbour law are not the only rules which restrict the unencumbered exercise of the powers of ownership.1

The freedom to use a dangerous weapon or a motor vehicle as one pleases is limited by the rule that an owner can incur delictual liability if damage is negligently caused to an outsider by the use of such weapon or motor vehicle. In terms of the rules of necessity a person is entitled to break the window of a nearby house in order to summon the fire brigade telephonically to extinguish a fire.2 The powers which the owner of the house has decrease in a case of necessity in view of the increase of the powers of the outsider.3 In certain circumstances there is a positive duty on a landowner to avoid potential damage to a neighbouring farm. He is obliged to warn his neighbour against the danger of damage by fire4 and must prevent a fire which has started on his land from spreading to neighbouring land.5

1See in general Van der Merwe Sakereg 184–185.

2See De Wet and Swanepoel Strafreg 88 124. See also Kleyn and Boraine Property 192–193.

3

According to Van der Merwe 184 fn 114 the owner of a farm is probably obliged to allow relatives of a person buried on the farm to visit the grave. In such a case a landowner’s ownership is probably restricted by a right of personality.

4See inter alia Cambridge Municipality v Millard 1916 CPD 724; Van Wyk v Hermanus Municipality 1963 4 SA 285 (C).

5D 9 2 27 9; Quathlamba (Pty) Ltd v Minister of Forestry 1972 2 SA 783 (N). The courts have, however, held that a landowner who lets nature take its course and who takes no steps to prevent wild animals, naturally on his land, from leaving his land and damaging his neighbour’s property cannot be considered negligent in any way; see Sambo v Union Government 1936 TPD 182; Mbhele v Natal Parks, Game & Fish Preservation Board 1980 4 SA 303 (D) 308.

NEIGHBOUR LAW

302  Development  Neighbour law does not consist of a uniform system of rules which can be traced to one basic concept. It is rather a conglomeration of casuistic rules from the spheres of both the law of things and the law of delict. The reason for this phenomenon must be sought in the historical development of neighbour law.1 On the one hand, Roman and Roman-Dutch law recognised only a number of real remedies each with its own sphere of application and aimed at securing for the owner full use and enjoyment of his land.2 Examples of such actions are the actio negatoria, the actio finium regundorum, the actio aquae pluviae arcendae, the cautio damni infecti, the operis novi nuntiatio, the interdictum quod vi aut clam, the interdictum de arboribus caedendis and the interdictum de glande legenda.3 On the other hand, early case law, precisely on account of the fragmentary treatment of neighbour law in Roman and Roman-Dutch law, fell back on the English law “tort of nuisance”. As rationale for this step the courts reasoned that both English as well as Roman neighbour law were based on the age-old maxim “sic utere tuo ut alienum non laedas”.4 The view that the rules of neighbour law are based on the English law tort of nuisance was rejected by the then appellate division in Regal v African Superslate (Pty) Ltd.5 According to this decision the casuistic neighbour law rules encountered in Roman and Roman-Dutch law can be traced back to a general principle, namely Aquilian liability. It is submitted, however, that Aquilian liability is not the only basis of neighbour law. Neighbour law straddles both the law of delict and the law of things. If prejudice is suffered by a neighbour, the law of delict applies; if a neighbour’s use and enjoyment of his land is impaired the remedies of the law of things modelled on the actio negatoria are applicable.6

1See Milton 1969 Acta Juridica 131.

2See inter alia the obiter dictum in De Bruijn v Louw 1905 ORC 11 17.

3Van der Walt Risiko-Aanspreeklikheid uit Onregmatige Daad 403; Price 1949 SALJ 377 et seq; title NUISANCE.

4See Holland v Scott (1882) 2 EDC 307.

51963 1 SA 102 (A). See also Moller v SAR&H 1969 3 SA 374 (N).

6See Van der Merwe Sakereg 185–186; cf Van der Merwe Oorlas in die SA Reg 558 et seq. For the question whether delictual liability in the sphere of neighbour law should be strict or based on negligence, see Price 377; Mathews and Milton 1965 SALJ 31; Milton 131 197; Van der Walt 404 et seq; Cosmos (Pvt) Ltd v Phillipson 1968 3 SA 121 (R) 128–130; Van der Merwe Oorlas in die SA Reg 566 et seq; title NUISANCE.

303  Types of nuisance1  Strictly speaking the term “nuisance”2 refers to conduct on the part of a landowner in terms of which a neighbour’s quality of life, notably his health, comfort and well-being are interfered with by smells, smoke, noise or indecent displays. Nuisance in the strict sense is therefore restricted to conduct which annoys or causes discomfort or inconvenience. The term

“nuisance” is, however, also used in a broader sense connoting abnormal or unusual use of land by a landowner in terms of which actual damage is caused to a neighbour’s land or the neighbour is threatened with potential damage. Nuisance in this latter sense has a close affinity with the doctrine of abuse of rights.3

Nuisance in the form of conduct causing annoyance or discomfort is actionable whenever a landowner subjects his neighbour to unreasonable annoyance, namely annoyance or inconvenience which is greater than a normal person can be expected to endure in his contact with fellow men.4 Such an actionable nuisance occurs whenever there is a consistent5 and substantial interference with the physiological and psychological well-being of human beings by inter alia noise, odours, smoke or the keeping of animals.6 Thus noises emanating from a blacksmith’s workshop,7 a chicken hatchery,8 dog kennels,9 a device for scaring animals,10 a skittle alley,11 an engineering works,12 building operations,13 and a seal14 have been held to constitute an actionable nuisance. Similarly, actions for nuisance have succeeded in respect of odours emanating from a brick kiln,15 abattoir,16 privy,17 sewerage works,18 dairy,19 pigsties,20 refuse dump,21 animal skin store,22 and crayfish canning factory.23 Smoke, whether accompanied by noise or foul odour24 or not, amounts to an actionable wrong if it materially affects the comfort and convenience of a neighbour.25 Finally, the keeping of animals in unhygienic circumstances so as to cause substantial interference with the physical comfort of the occupant of land or urban premises can amount to an actionable nuisance.26 In recent years the establishment of a squatter camp27 or an informal settlement28 on a neighbouring farm for a large number of homeless persons has been added to this list.

Nuisance in the form of annoyance is a distinctive form of harm in the sense that both personality and proprietary interests can be impaired.29 To the extent that an annoyance causes personal discomfort or inconvenience an interest of personality is affected; a proprietary interest is violated in so far as the personal discomfort or inconvenience adversely affects a person’s use and enjoyment of the land. If dignity or some other interest of personality, like physical integrity, is affected the actio iniuriarum is applicable; if actual patrimonial loss is caused a delictual claim for damages based either on fault or on strict liability lies.30 Since nuisance in the sense of an annoyance connotes a continuing wrong, an isolated infringement will as a general rule not be actionable unless there is a probability that it will be repeated.31

Nuisance in the broader sense is present where a neighbour’s proprietary rights are infringed on account of abnormal or unnatural use of land. In such a case a neighbour’s comfort and convenience are not primarily threatened but he is threatened by actual patrimonial loss. Whether a particular use of land can be considered natural and normal is determined in the light of prevailing notions in a community. The planting of willow trees on a residential plot32 or oak trees along the streets of a town in the Western Cape is for instance considered normal and natural even though the falling leaves in fact clog the gutters of nearby buildings.33 On the other hand, the planting of poisonous shrubs or trees with extensive root systems which threaten the foundations of a neighbouring house is considered an abnormal use of land amounting to an actionable nuisance.34 Further examples of abnormal and unnatural uses of land amounting to an actionable nuisance are the heaping of earth near a neighbour’s farm liable to be washed down to the latter farm during a rain storm,35 the chipping of stones in the vicinity of a neighbouring farm,36 the taking of inadequate precautions when a house is built making the collapse of the building on neighbouring premises imminent37 and building operations which cause soil to bank up against a boundary wall rendering it unstable, dangerous and prone to collapse.38

Nuisance in the form of abnormal or unnatural use of land has a close affinity with the doctrine of abuse of rights.39 In terms of this doctrine the exercise of the normal incidents of ownership can become an actionable nuisance if the exercise of the particular power of ownership by an owner is aimed exclusively at causing injury to his neighbour. Examples of this type of behaviour are the erection of a dummy chimney on the roof of a house with the sole purpose of impairing a neighbour’s view,40 the sinking of a borehole with the sole intention of cutting off a neighbour’s water supply,41 and the planting of deciduous trees on the boundary line with the sole intention of ruining a neighbour’s malt floors by the falling leaves.42

1See in general Price 1949 SALJ 377 et seq; Milton 1969 Acta Juridica 149 et seq; Jaffey 1970 SALJ 436; Van der Merwe Oorlas in die SA Reg 428–482. See also title NUISANCE.

2The term “nuisance” is derived from the Latin word “nocere” which means “to harm”. Fleming Torts 338 calls the tort nuisance “a catch-all for a multitude of ill-assorted sins”.

3

See Van der Merwe Sakereg 187–190.4

Prinsloo v Shaw 1938 AD 570 575: “‘A resident in a town, and more particularly a resident in a residential neighbourhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbour he is subjected to annoyance or inconvenience greater than that to which a normal person must be expected to submit in contact with his fellow-men, then he has a legal remedy.” See also Holland v Scott (1882) 2 EDC 307 331; Van der Westhuizen v Du Toit 1912 CPD 184 188; Leith v Port Elizabeth Museum Trustees 1934 EDL 211 213; Ferreira v Grant 1941 WLD 186. This is referred to as the plus quam tolerabile test in Scots law.

5In Rademeyer v Western Districts Council 1998 2 All SA 547 (SECL); 1998 3 SA 1011 (SECL) (n 94) the court decided that the applicants had not proved that the erection of informal housing structures for 15 families on neighbouring land on the evidence created a health risk or the risk of criminal activity, thus no persistent inter-ference was proved.

6See generally title NUISANCE.

7Blacker v Carter (1905) 19 EDC 223; Holland v Scott supra 331; Graham v Dittmann & Son 1917 TPD 288.

8De Charmoy v Day Star Hatchery (Pty) Ltd 1967 4 SA 188 (D).

9Ferreira v Grant supra; cf S v Fintz 1975 2 SA 475 (RA).

10Gien v Gien 1979 2 SA 1113 (T).

11Bock v Schroeder & Land (1894) 9 EDC 106.

12Van den Berg v OVS Landbou Ingenieurs (Edms) Bpk 1956 4 SA 391 (O).

13Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 3 SA 159 (T); Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 3 SA 896 (T).

14Leith v Port Elizabeth Museum Trustees supra.

15Winshaw v Miller 1916 CPD 439.

16Bell v East London Municipality 1928 EDL 354.

17Inglethorpe v Sackville-West 1908 EDC 159.

18Herrington v Johannesburg Municipality 1909 TH 179 198.

19Van der Westhuizen v Du Toit supra.

20Whittaker v Hime 1912 NPD 72.

21Dell v The Town Council of Cape Town (1879) 9 Buch 2.

22Windhoek Municipality v Lurie & Co (SWA) (Pty) Ltd 1957 1 SA 164 (SWA).

23Cape Town City Council v Salt River Canning Co Ltd 1916 JDR 382.

24As in Gibbons v SAR&H 1933 CPD 521 529. The smoke need not necessarily be injurious to health; see Blacker v Carter supra 233.

25Blacker v Carter supra; Turkstra Ltd v Richards 1926 TPD 276; Gibbons v SAR&H supra.

26Whittaker v Hime supra; Van der Westhuizen v Du Toit supra; Bhayroo v Van Aswegen 1915 TPD 195; R v Bilse 1953 2 SA 770 (O). For other examples of particular nuisances, see title NUISANCE.

27East London Western Districts Farmers’ Association v Minister of Education & Development Aid 1989 2 SA 63 (A). The court accepted (67D; see title NUISANCE) that the term “public nuisance” has the simplified meaning of an ordinary nuisance so extensive in its effect or range of operation as to discomfort the public at large. The court by a majority of three to two rejected that the interference of rights was authorised by the provisions of Development Trust and Land Act 18 of 1936  s 10 in that it was

unable to show that the creation of the particular nuisance was a demonstrably necessary consequence of any settlement. Irrespective of the number of settlers it was not possible to alleviate the lot of the refugees while simultaneously protecting the farming community into whose midst the refugees had been introduced. The court therefore granted an order for abatement of the nuisance.

28This case is discussed in par 298 ante.

29See also title NUISANCE; Kleyn and Boraine Property 171–172; Neethling 1979 THRHR 449–450; Sonnekus Sakereg Vonnisbundel 158.

30Apart from Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) in which Rumpff JA held that liability for nuisance depended on fault in the form of intention or negligence, more recent decisions like Cosmos (Pvt) Ltd v Phillipson 1968 3 SA 121 (R) 129C–130A and Flax v Murphy 1991 4 SA 58 (W) 63F–G rely on Van der Merwe v Carnarvon Municipality 1948 3 SA 613 (C) 619 (discussed by Price 1949 SALJ 377) that liability caused by nuisance is strict. In Flax v Murphy the court however stated that mere control was not sufficient to ground a nuisance, but that knowledge of the existence of the nuisance was also required.

31Milton 150.

32Kirsh v Pincus 1927 TPD 199.

33Malherbe v Ceres Municipality 1951 4 SA 510 (A).

34Bingham v City Council of Johannesburg 1934 WLD 180. See also Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 110.

35Levin v Vogelstruis Estates & Gold Mining Co Ltd 1921 WLD 66; Regal v African Superslate (Pty) Ltd supra.

36Regal v African Superslate (Pty) Ltd supra.

37Regal v African Superslate (Pty) Ltd supra.

38Flax v Murphy 1991 4 SA 58 (W) (discussed by Van der Walt 1993 THRHR 645–648).

39On this doctrine, see inter alia Scholtens 1958 SALJ 39; Milton 255; Devine 1964 Acta Juridica 148.

40This example is taken from Dutch law; see Hof Colmar of 2 May 1855.

41D 39 3 1 12; Voet Commentarius 39 3 4; cf D 39 2 24 12; Grotius Inleidinge 2 34 27; Bradford Corporation v Pickles 1895 AC 587 (HL); Struben v Cape Town District Waterworks Co (1892) 9 SC 68 74; Union Government (Minister of Railways & Harbours) v Marais 1920 AD 240.

42Kirsh v Pincus supra; see further pars 309 319 post.

305  Factors influencing objective reasonableness  In order to ascertain whether a landowner’s conduct is objectively reasonable1 under the circumstances various factors are taken into account, namely:

(a)the locality or neighbourhood in which the alleged nuisance takes place;2

(b)the proportionality of benefit and harm;3

(c)

the normal person or property standard;4(d)

the motive with which the landowner carries out the activity;5(e)

the social utility of the activity or its utility to the general public;6(f)

the enquiry whether the same goal could have been achieved by the landowner by employing measures less harmful to his neighbour;7

(g)the practicability of preventing the alleged nuisance;8 and

(h)the enquiry whether the plaintiff has “come to the nuisance”.9

After a balancing of the abovementioned factors which are relevant to the activity in question, the court has to decide on a balance of probabilities whether the landowner’s conduct is reasonable in the circumstances.10

1See generally title NUISANCE; Van der Merwe 1980 DR 118–119; Van der Merwe Oorlas in die SA Reg 436–454, 1982 De Jure 307–320, 1982 De Jure 218–233; Van der Merwe and Blumberg 1998 StellLR 353–357.

2See par 306 post.

3See par 307 post.

4See par 308 post.

5See par 309 post.

6See par 310 post.

7See par 311 post.

8See par 312 post.

9See par 313 post.

10See eg Gien v Gien 1979 2 SA 1113 (T) 1123.

306  Locality  That which is an actionable nuisance in one place is not necessarily a nuisance in another place. Certain areas or places are devoted to certain uses or activities, for example agriculture, industry, commerce or residential habitation. The character so impressed upon the locality determines the levels of tolerance of interferences with human comfort.1 Consequently, city residents cannot expect the peace and quiet of the countryside2 and persons dwelling in an industrial or commercial area cannot count on the tranquillity of a choice residential area.3 Conversely, urban residents are not expected to endure the sounds, smells and vapours considered tolerable in agricultural4 or industrial5 areas. The type of nuisance acceptable according to prevailing views of the community may even vary according to the type of agricultural or industrial locality concerned. Thus it was remarked that the lowing of cattle would not be considered unacceptable in a cattle farming region whereas the noise emanating from an animal scaring device would be totally unacceptable in such a community.6 Conversely, the noise emanating from a bird scaring device would be considered tolerable in a wine growing area.

1See the dictum of Lord Westbury in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 650. See also Holland v Scott (1882) 2 EDC 307 314 322 329; Du Toit v De Bot, Du Toit v Zuidmeer (1883) 2 SC 213; Graham v Dittmann & Son 1917 TPD 288 290; Liss Shoe Co (Pty) Ltd v Moffett Building & Contracting (Pty) Ltd 1952 3 SA 484 (O) 488; Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 3 SA 896 (T). See further Van der Merwe and Blumberg 1998 StellLR 353.

2

Cf Du Toit v De Bot, Du Toit v Zuidmeer supra; Jecks & Co v O’Meara & Co 1904 TH 284 287.

3Whittaker v Hime 1912 NPD 72 84; Leith v Port Elizabeth Museum Trustees 1934 EDL 211 213.

4SA Motor Racing Co Ltd v Peri-Urban Areas Health Board 1955 1 SA 334 (T) 337.

5Graham v Dittmann & Son supra 291.

6Gien v Gien 1979 2 SA 1113 (T) 1123.

307  Proportionality of benefit and harm  Following locality, the benefit and utility of the activity to the landowner must be weighed against the harm suffered by the plaintiff. An interference with a neighbour’s comfort will not be considered unreasonable if caused by some activity from which a landowner derives great benefit. However, an activity from which a landowner derives only marginal benefit will be unreasonable if the harm suffered is substantial.1

To ascertain the gravity of the harm or interference factors such as the measure or extent of the interference, the duration of the interference and the time when the interference took place are considered.2 Only harm which is “material” or “substantial” is taken into account and not harm which is slight or trivial.3 The materiality test is objective,4 namely harm that a normal person residing in the locality would consider an excessive or intolerable interference with the comfort of human existence.5 Thus in Gien v Gien6 it was decided that the noise which emanated from an animal scaring apparatus was in excess of the standards set by the Bureau of Standards. Only an interference that continues for a considerable time or at least with some regularity is considered to be capable of inflicting material harm. Interferences that are merely momentary or temporary are as a general rule not considered unreasonable. Finally, the particular time when an interference occurs is a factor in assessing the gravity of the harm caused to the plaintiff. That which is reasonable during the day may be considered unreasonable if it occurs at night.

The benefit and utility of the activity to the landowner must be weighed against the harm suffered by the plaintiff. An interference with a neighbour’s ordinary comfort or convenience may not be considered unreasonable if occasioned by some activity which is so beneficial to the landowner that it outweighs the harm suffered. Consequently, an “ordinary”, “natural” or “normal” use of land will not amount to a nuisance.7 However, an activity which is only marginally beneficial to a landowner will be labelled unreasonable if it causes abnormal harm to his neighbour. Thus in Gien v Gien8 it was decided that the interest the landowner wanted to procure, namely a small vegetable garden in a cattle farming community, was disproportionately small in comparison with the harm suffered by his neighbour on account of the noise emanating from the animal scaring apparatus aimed at keeping animals away from the garden. On the other hand, if the benefit which flows from the activity is substantial not even the fact that an activity is exercised with the sole intention of injuring a neighbour can change such an activity into an unreasonable one. Consequently, where bulldozers were employed in erecting a dam on land with the result that the noise of the bulldozers interfered with the breeding of bull-mastiffs on the neighbouring farm, a Canadian court decided that the building of the dam was so beneficial to the landowner that even if it could be proved that one of the aims of the landowner was to interfere with his neighbour’s breeding programme, his activity would still be considered reasonable.9

1Van der Merwe and Blumberg 1998 StellLR 353–354.

2See also title NUISANCE.

3Holland v Scott (1882) 2 EDC 307 313 318 330 332; Graham v Dittmann & Son 1917 TPD 288 290; Leith v Port Elizabeth Museum Trustees 1934 EDL 211 213; R v Bilse 1953 2 SA 770 (O); SA Motor Racing Co Ltd v Peri-Urban Areas Health Board 1955 1 SA 334 (T) 339; Van den Berg v OVS Landbou Ingenieurs (Edms) Bpk 1956 4 SA 391 (O) 400; De Charmoy v Day Star Hatchery (Pty) Ltd 1967 4 SA 188 (D) 192; Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 3 SA 159 (T) 163 (discussed by Van der Merwe 1982 THRHR 446).

4

De Charmoy v Day Star Hatchery (Pty) Ltd supra 192; Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk supra 163.

5De Charmoy v Day Star Hatchery (Pty) Ltd supra 192–193.

61979 2 SA 1113 (T).

7Jecks & Co v O’Meara & Co 1904 TH 284 288; Levin v Vogelstruis Estates & Gold Mining Co Ltd 1921 WLD 66 68; Bingham v City Council of Johannesburg 1934 WLD 180 184; Malherbe v Ceres Municipality 1951 4 SA 510 (A) 517–518; Assagay Quarries (Pty) Ltd v Hobbs 1960 4 SA 237 (N) 243; Cosmos (Pvt) Ltd v Phillipson 1968 3 SA 121 (R) 128.

8Supra 1123.

9Rattray v Daniels (1959) 17 DLR (2d) 134.

308  Normal person or property standard  The sensitivities of the plaintiff play an important role in determining the gravity of the harm inflicted on him. The test employed is “not that [of the perverse or finicky or over-scrupulous person, but that] of the normal man of sound and liberal taste and habits”.1 Consequently, plaintiffs who are abnormally or extraordinarily sensitive will not be entitled to relief even though they may personally suffer substantial discomfort and inconvenience.2 The tolling of church bells which caused a person to suffer epileptic fits was consequently held not to be a nuisance.3 This principle applies apparently not only in relation to the personal, physical or moral sensitivity of an occupier of land, but also where the land or premises of the plaintiff are used for delicate or susceptible activities.4

1Prinsloo v Shaw 1938 AD 570 575. See also Holland v Scott (1882) 2 EDC 307 313 318 331; Whittaker v Hime 1912 NPD 72 76; Leith v Port Elizabeth Museum Trustees 1934 EDL 211 213; Van den Berg v OVS Landbou Ingenieurs (Edms) Bpk 1956 4 SA 391 (O) 400; Die Verenigiing van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 3 SA 159 (T) 163. See further Van der Merwe and Blumberg 1998 StellLR 354.

2Jecks & Co v O’Meara & Co 1904 TH 284 285; Hollam v Mowbray Municipality (1906) 23 SC 133 136; Leith v Port Elizabeth Museum Trustees supra 214; De Charmoy v Day Star Hatchery (Pty) Ltd 1967 4 SA 188 (D) 192.

3See the American case of Rodgers v Elliott (1888) 15 NE 708.

4Cf Cooke v Forbes (1867) LR 5 Eq 166.

309  Motive  The motive behind a certain activity may determine its objective reasonableness. If the activity is motivated solely by an intention on the part of a landowner to harm his neighbour (animo vicino nocendi) this fact may turn an otherwise lawful activity into an unreasonable activity which cannot be expected to be tolerated.1 A classic example is where a landowner bores a water-hole with the sole intention of cutting off the water supply from his neighbour’s boreholes.2 Other examples are where deciduous trees are planted on the border with the sole intention of damaging a neighbour’s malt floors3 and where gun shots are fired in the vicinity of a neighbouring farm with the sole intention of interfering with the breeding of silver foxes on the adjoining farm.4

1Blacker v Carter (1905) 19 EDC 223 234–235; Inglethorpe v Sackville-West 1908 EDC 159 161; Kirsh v Pincus 1927 TPD 199; Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 107–108; Gien v Gien 1979 2 SA 1113 (T) 1121. See also Milton 1969 Acta Juridica 123 162–165.

2D 39 3 1 12; see contra Bradford Corporation v Pickles 1895 AC 587 (HL). See also par 303 ante.

3Kirsh v Pincus supra.

4Cf Hollywood Silver Fox Farm Ltd v Emmett 1936 2 KB 468.

310  Social utility  The social utility of the activity complained of or its utility to the general public is an important factor in assessing the reasonableness of the landowner’s conduct. Implicit in this factor is that one type of land use activity may have greater social utility than the social utility representing the ordinary comfort of human existence. Consequently, this type of activity ought to be allowed even at the expense of another’s comfort and convenience.1 Activities promoting public welfare, such as agricultural land use activities, seem to be accorded a higher social utility2 by the courts than activities which only indirectly advance public welfare through trade, industry and commerce.3

1See in general Van der Merwe 1980 DR 118; Van der Merwe and Blumberg 1998 StellLR 355; title NUISANCE.

2Cf L & SA Exploration Co v Kimberley Divisional Council (1887) 4 HCG 287 289; Gibbons v SAR&H 1933 CPD 521 531; Malherbe v Ceres Municipality 1951 4 SA 510 (A) 517–518.

3Holland v Scott (1882) 2 EDC 307 316 330; Graham v Dittmann & Son 1917 TPD 288 294.

311  Less harmful measures  The fact that the same goal could have been achieved by the landowner if measures less harmful to the plaintiff had been employed is an important factor in determining the reasonableness of a landowner’s behaviour: the greater the possibility of preventing harm by precautionary measures, the more likely that his conduct will be assessed unreasonable. Thus an interference with the comfort and convenience of a neighbour which could have been prevented or at least diminished by the defendant carrying on the activity at a different time,1 in a different manner,2 at a different place,3 or with greater expertise is more likely to be considered unreasonable than one which could not have been prevented by such measures.4 Since the same result of scaring animals away from the vegetable garden could have been achieved if the noise of the scaring apparatus had been toned down or could only be heard during the day and not at night, this factor contributed materially to the court’s decision in Gien v Gien5 that the conduct of the landowner was unreasonable.

1Cf Starfield & Starfield v Randles Bros & Hudson 1911 WLD 175 180; Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 3 SA 159 (T) 164. See also Van der Merwe and Blumberg 1998 StellLR 355–356.

2Cf Herrington v Johannesburg Municipality 1909 TH 179 199; Gibbons v SAR&H 1933 CPD 521 531–535.

3Cf Inglethorpe v Sackville-West 1908 EDC 159 161.

4Cf Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 103.

51979 2 SA 1113 (T).

312  Practicability of preventing harm  If a landowner inherits a certain state of affairs which is injurious to his neighbour, the practicability of preventing harm to his neighbour is taken into account in assessing the reasonableness of his continuing the state of affairs. The landowner is only expected to take steps “reasonably practicable” in the circumstances. Harm which could not have been avoided even if reasonably practicable measures had been taken is not considered to have been caused unreasonably.1 Thus in Regal v African Superslate (Pty) Ltd2 it was held that the cost of erecting a weir in the stream to prevent slate-waste deposited on the river bank by the defendant’s predecessor in title from being washed down by the river during a rain storm and causing damage to neighbouring land made it reasonably impractical for the landowner to prevent harm to his neighbour. Consequently, the landowner’s omission to take such measures was not considered unreasonable.

1Bloemfontein Town Council v Richter 1938 AD 195; Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 111–112 116–118. See also Van der Merwe and Blumberg 1998 Stell LR 356; title DELICT.

2Supra.

313  Coming to nuisance  A final factor which has sometimes been taken into account in assessing the reasonableness of a landowner’s activity is whether the activity complained about was carried on prior to the plaintiff “coming to the nuisance”.1 An illustration of such a situation is where new township developments extend the boundaries of a town or city up to the boundary of an existing hatchery or pig farm. However, the weight of authority seems to be against allowing the landowner to plead that the plaintiff voluntarily set up a residence or other occupation or premises within the ambit of the nuisance.2

1Strykius De Iure Sensuum 5 3 8 (cited in 1895 CLJ 161); Miller v Jackson 1977 QB 966 (CA); Du Toit v De Bot, Du Toit v Zuidmeer (1883) 2 SC 213. See also Van der Merwe and Blumberg 1998 StellLR 356–357.

2Howard Farrar, Robinson & Co Ltd v East London Municipality 1908 EDC 149. See also title NUISANCE.

314  Remedies  A landowner who has been harmed or who is threatened with harm by a state of affairs creating a nuisance has two main remedies1 at his disposal, namely an interdict and an action for damages. In order to obtain an interim interdict the applicant must establish a prima facie right, apprehended harm which may be irreparable, balance of convenience and the absence of a satisfactory alternative remedy.2 For a final interdict the plaintiff must establish a clear right, injury committed or apprehended and the absence of a satisfactory alternative remedy.3 Where the nuisance has caused actual patrimonial loss an action for damages will lie.4 As mentioned earlier, it is unclear whether such an action is available under the actio legis Aquiliae or whether it is based on some form of strict liability.5 Where the interference with comfort or convenience involves animus iniuriandi or otherwise violates interests of personality, sentimental damages are recoverable, in appropriate cases under the actio iniuriarum.6

These remedies are not available only to landowners but also to occupiers of land in whom the landowner’s right is vested, such as lessees.7 Liability for damage caused by a nuisance is based on the power of control over land or premises.8 Consequently, the landowner or occupier who is the author of the nuisance or a person who has succeeded to the ownership of the land on which a nuisance exists is liable.9 A landlord is not liable for nuisances created by his tenant, unless he has expressly or impliedly authorised the nuisance.10

1For further remedies of self-help and an abatement order, see title NUISANCE.

2See inter alia Joseph Ellis Brown v James Bennett McCord (1906) 27 NLR 131; Howard Farrar, Robinson & Co v East London Municipality (1907) 24 SC 685 687; Municipality of Stellenbosch v Levinsohn 1911 CPD 203 208; Ferreira v Grant 1941 WLD 186 192; Liss Shoe Co (Pty) Ltd v Moffett Building & Contracting (Pty) Ltd 1952 3 SA 484 (O) 487; SA Motor Racing Co Ltd v Peri-Urban Areas Health Board 1955 1 SA 334 (T) 338–339; Van den Berg v OVS Landbou Ingenieurs (Edms) Bpk 1956 4 SA 391 (O) 400; Windhoek Municipality v Lurie & Co (SWA) (Pty) Ltd 1957 1 SA 164 (SWA). For fuller details, see titles INTERDICT; NUISANCE.

3See inter alia Holland v Scott (1882) 2 EDC 307; Joseph Ellis Brown v James Bennett McCord (1906) 27 NLR 674; Graham v Dittmann & Son 1917 TPD 288; Gien v Gien 1979 2 SA 1113 (T) 1119. For fuller details, see titles INTERDICT; NUISANCE.

4See inter alia Herrington v Johannesburg Municipality 1909 TH 179 203; Bhayroo v Van Aswegen 1915 TPD 195 197 199; Turkstra Ltd v Richards 1926 TPD 276 277; Gibbons v SAR&H 1933 CPD 521 537. See further title NUISANCE.

5

See par 302 ante.6

Wynberg Municipality v Dreyer 1920 AD 439 453. See also Neethling 1979 THRHR 448; title DAMAGES.

7See Amod v Andrews Bakery (Pty) Ltd 1965 2 SA 433 (T) 436.

8Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A) 109 111 116 121–122; Minister of Forestry v Quathlamba (Pty) Ltd 1973 3 SA 69 (A) 80–83. See also Milton 1969 Acta Juridica 123 169–172; Kemp 1981 THRHR 358 365–367.

9Regal v African Superslate (Pty) Ltd supra.

10Bock v Schroeder & Land (1894) 9 EDC 106; Harris v De Waal (1895) 12 SC 409 412; Schultz v SA Native Trust 1945 TPD 299 304. See also Milton 175–178.