Page 101 - Q&A
P. 101

Stopping your neighbour’s foul smells


            March 2020
            “About 3 years ago my neighbour started producing his own compost. Initially,
            the smell was bearable, but it appears that he has ramped up his composting
            and is bringing in manure as well. I suspect he is even selling or supplying to
            others. The smell has become unbearable and pervades our entire house and
            garden, even with the windows closed. We really can’t stand it anymore. I’ve
            asked my neighbour to stop but he just ignores us. Is there anything we can do?”

            In our law it is a general principle that a person cannot use his own property
            in  an unreasonable manner  that  substantially  lessens  another’s use  and
            enjoyment of their property. If this is done, it is generally referred to as creating a
            nuisance which is an infringement on or disturbance of the use and enjoyment
            of their property.

            Where a neighbour therefore creates odours that affect the enjoyment of
            another’s property, this could qualify as a nuisance which is unreasonable and
            subject to sanction by our law.
            Firstly, one should approach your neighbour and try to settle the matter in
            an informal and amicable manner before proceeding to legal action. As it
            appears you may have tried this already, it may mean that you would then
            have to consider legal options, such as applying for an interdict to stop the
            unwanted conduct.

            In the recent case of Jacobs NO and Others v Hylton Grange (Pty) Ltd and
            Others it was held that the proposition that conduct will be an actionable
            nuisance if it is unreasonable must be understood in the sense that a variety of
            factors including those typically seen to be nuisances such as the locality of the
            properties, the suitability of the respondent’s use of its property, the extent and
            duration of the interference, the times at which it occurs etc must be balanced.
            All such factors and the circumstances of a particular case must be taken into
            account to determine whether the nuisance is actionable or not.

            If the unreasonableness of the nuisance is established, it must then be   Litigation
            ascertained whether the conduct is wrongful. Here, aspects like the constitutional
            right of individuals to an environment that does not cause harm to their
            well-being, as well as provisions of legislation such as the National Environmental
            Management  Act, which states that every person who causes significant
            pollution or degradation of the environment must take reasonable measures to
            prevent such pollution or degradation, or minimize or remedy the situation, are
            taken into account.








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