The law on nuisance seeks to adjust the conflicting interests of neighbouring occupiers of land and premises. Whilst a person should be at liberty to use and enjoy his land, he should not be permitted to use his land in such a way that he interferes with his neighbours’ rights in an unreasonable fashion (i.e. the neighbour has a right to enjoy his land free of such interference). The law thus seeks to balance these conflicting rights in an equitable fashion and provides the injured neighbour remedies in the event of an unjustified nuisance being caused to him.
Nuisances have been sub-divided into two categories, namely, private nuisances andpublic nuisances. A private nuisance is one which interferes with only one neighbour or only a limited number of neighbours, whereas a public nuisance is one which affects the public at large or some considerable section of the public.
The requirements for an action for private nuisance are–
- the interference with P’s rights must be a continuing one as opposed to a single, isolated event; and
- there must be an unreasonable use of land by D which causes an unreasonable and unjustifiable degree of interference with P’s rights to the use and enjoyment of his land.
In considering whether there has been an unreasonable user that has caused an unreasonable degree of interference the following factors will be salient–
- the nature of the locality (i.e. is it rural, semi-rural, urban or industrial);
- whether the user is a common and ordinary one given the nature of the locality. (However, if D engages in what normally would be a common and ordinary use in that locality with the sole purpose of adversely affecting his neighbour rather than enjoying his own land by putting it to that use, D will be liable because he was actuated by malice. This is the so-called spite fence situation);
- whether the user substantially impinged upon P’s rights or the degree of interference was only of a trivial character; and
- if D causes a nuisance in the course of taking steps to protect his property, whether there were other alternative less drastic steps which he could have taken.
In considering whether any unreasonable extent or interference has resulted, only normal sensitivities of ordinary citizens will be considered. Thus, there will be no action if D was abnormally sensitive to say, noise or smells.
The nuisance may result in physical damage to property or physical harm to a person or it may cause merely irritation and upset (e.g. noise or smell nuisance). Damages can only be claimed in our law for nuisance if there has beenpatrimonial loss. Where there has been no patrimonial loss but only irritation, then the sole remedy is an interdict.
Where an interdict is being sought no intention or negligence on the part of D has to be proved (i.e. all that has to be shown is that there has been an unreasonable use which causes an unreasonable degree of interference in P’s rights). Where damages are being claimed there has been a dispute in South Africa as to whether this action falls under the Aquilian action and whether at least negligence has to be established (i.e. that the interference was reasonably foreseeable and the reasonable person would have guarded against this.) In English law at one time it appeared that negligence was not an essential requirement but more recently it seems that negligence is now required. In Zimbabwe, it is somewhat unclear. Although in the local case of Cosmosv Phillipson 1968 (2) ZLR 128 (G) the judge ruled that negligence did not have to be proved before damages could be recovered, this case was influenced by case law in South Africa and Britain. This ruling needs re-examination in the light of contemporary developments in these two countries.
In respect of private nuisance, there are a variety of offences contained in legislation prohibiting nuisances on pain of penalties being imposed. Most of these are contained in local government by-laws. See, for instance, s 4 the Harare (Noise) By-Laws, SI 1195 of 1973. There are various other provisions contained in primary legislation. For example, s 46 read with the Third Schedule of the Criminal Law Code makes it an offence for an owner, lessee or occupier to fail to take such steps as may be necessary to prevent the creation on the property of a nuisance to neighbours by offensive smells or otherwise.
See Savoy House Ltd v City of Salisbury 1959 (1) R & N 145 (H); Francis v Roberts 1972 (2) RLR 238 (G); Wright v Pomona Stone Quarries 1988 (2) ZLR 144 (S) nuisance existing before P took occupation; Malherbe v Ceres Municipality 1951 (4) SA 510 (A); Gien v Gien 1979 (2) SA 1113 (T); de Charmoy v Day Star Hatchery 1967 (4) SA 188 (D); Regal v African Superslate 1963 (1) SA 102 (A) created by predecessor in title.
This is largely the subject matter of controls contained in legislation. The most important pieces of legislation in this regard, controlling such matters as pollution which is affecting public health and so on, are the Public Health Act [Chapter 15:09], the Regional Town and Country Planning Act [Chapter 29:12], the Factories and Works Act [Chapter 14:08], the Atmospheric Pollution Prevention Act [Chapter 20:03] and the Environmental Management Act [Chapter 20:27].