East London Western Districts Farmers' Association and Others v Minister of Education and Development Aid and Others

• Jurisdiction: South Africa
• Judge: Viljoen JA, Hoexter JA, Nestadt JA, Vivier JA, M T Steyn JA
• Judgment Date: 01 December 1988
• Citation: 1989 (2) SA 63 (A)
• Hearing Date: 15 February 1988
• Court: Appellate Division

Hoexter JA:

I have had the advantage of reading the judgment prepared by Viljoen JA. I disagree, with respect, both with the reasoning adopted by him and the conclusion at which he arrives. In my judgment the appellants have established that the settlement on the farm 'Needs Camp' resulted in an unlawful invasion of their rights, as the owners I or occupiers of properties adjacent to 'Needs Camp', to the ordinary use and enjoyment of such properties; and I consider that the appeal should succeed.

In the Court below the respondents raised the defence that, to the extent that any interference with the private rights of the appellants might have resulted from the settlement on 'Needs Camp', such interference was authorised by the provisions of s 10 of the J Development Trust and Land

Hoexter JA

A Act 18 of 1936 ('the Act'). Kroon J upheld the defence of statutory authority and therefore discharged the rule nisi earlier obtained by the appellants. My Brother takes the view that it was unnecessary, and indeed quite inapposite, for the Court below at all to have considered the defence of statutory authority; that the appellants misconceived the remedy open to them; and that in law the appellants could have B asserted their rights, if any, only by way of review proceedings based on allegations of gross unreasonableness or mala fides. It seems to me, with respect, that in the Court below Kroon J was obliged by law to determine the fate of the application by reference to the defence of statutory authority raised by the respondents; but I take the view C that the learned Judge erred in deciding in favour of the respondents that that defence had been established. I am further of the opinion that the appellants were not confined to seeking relief by way of review proceedings and that they were entitled to the grant of an interdict.

To the exposition of the facts contained in the judgment of Viljoen D J there may usefully be added one or two details affecting the nature and extent of the property rights which the appellants sought to protect by their application to the Court below. The first appellant is a voluntary association representing the interests of organised agriculture and farmers in the region extending westwards from the Buffalo River, where it flanks East London on the southern side, to the E Chalumna River which forms the boundary between the Republic of South Africa and the Ciskei. This region includes the area known as Kidds Beach. The second appellant, which withdrew its appeal before the hearing thereof, is a member of the first appellant. In the Kidds Beach area the second appellant is the owner of the farm 'Silverdale' which adjoins 'Needs Camp'. In addition the second appellant is the owner of F five other farms within the first appellant's region. The third appellant is a partnership which either owns or occupies 15 farms within the said region. These include the farm 'Mount Pleasant' which adjoins 'Silverdale'. For the purposes of the present appeal our law would properly regard the owner of 'Needs Camp' and the appellants G as neighbours. Into this legal relationship certain reciprocal rights and obligations are imported. In Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) - to which reference is hereafter made as 'the Superslate case' - Steyn CJ made the following general observations (at 106H - 107A):

'As algemene beginsel kan iedereen met sy eiendom doen wat hy wil, H al strek dit tot nadeel of misnoeë van 'n ander, maar by aangrensende vasgoed spreek dit haas vanself dat daar minder ruimte is vir onbeperkte regsuitoefening. Die reg moet 'n reëling voorsien vir die botsende eiensdoms- en genotsbelange van bure, en hy doen dit deur eiendomsregte te beperk en aan die eienaars teenoor mekaar verpligtinge op te lê.'

Our law recognises as one of the intrinsic rights of a landowner I or lawful occupier of land his right to the reasonable enjoyment of such land; and it provides him with a remedy against those who unjustifiably interfere with that right. Van der Merwe and Olivier Die Onregmatige Daad in die SA Reg (5th ed) put the matter thus (at 504):

'Die bevoegdheid tot ongestoorde besit en genot van jou eie grond is een van die inhoudsbevoegdhede van eiendomsreg. Word op hierdie J bevoegdheid inbreuk

Hoexter JA

A gemaak, het 'n mens met skending van die eiendomsreg te doen. Die uitdrukking 'nuisance' of 'oorlas' dui dus eenvoudig aan dat 'n herhaalde inbreukmaking op eiendomsreg plaasvind....

Wil die benadeelde slegs die oorlas beëindig, is die gepaste remedie 'n interdik.... So moet die applikant bewys dat die respondent die oorlas veroorsaak het en dat die respondent se handeling onregmatig was of is. Die skuldvraag kom egter glad nie ter sprake B nie.'

In South Africa the word 'nuisance' has been used in countless decisions of our Courts and it is often encountered in legislation (see, for example, Cape Act 2 of 1855; ss 4, 6 and 9 of the Slums Act 53 of 1934; s 122 of the Public Health Act 36 of 1919; ss 2 and 181 of Ord 20 of 1974 (Cape)). In English law the term of art 'public nuisance' has C a specialised meaning. In South Africa, however,

'... the term does not have exactly the same meaning or content as in English law. In the main this is because much of what is designated as a public nuisance in English common law, in South African law has been statutorily proscribed or is regarded as a distinct nominate offence.

D In the result the term 'public nuisance' in South African law has the simplified meaning of an ordinary nuisance so extensive in its effect or range of operation as to discomfort the public at large.'

(J R L Milton in Joubert (ed) Law of South Africa vol 19 sv 'Nuisance' para 227 at 139.)

E It need hardly be said that when an individual is able to establish that his proprietary rights have been infringed by a public nuisance he may sue in his own right: Law of South Africa (op cit para 230 at 140). Contrasting the remedies respectively available in English law and Roman-Dutch law Professor T W Price writes in (1949) 66 SALJ 377 ('Nuisance: The Carnarvon Municipality Case') at 383 - 4:

F 'Any disturbance or interference, whether by threat or by overt act, of the right to the reasonable enjoyment of property was treated in Roman-Dutch law as a disturbance of possession, entitling the complainant to the summary redress given by the possessory remedies, which redress was based upon the interdict. There was no attempt, for there was no need, to classify these complaints under such headings as Trespass, Nuisance, Disturbance of Servitudes, etc. These are G complications existing in English law, due to the particular historical development of that system, and principally to the development of the Action of Trespass and the remedy derived from it by interpretation and analogy, the Action of Trespass on the Case.... All this, however interesting, is quite irrelevant to our law, both in the past and the present.... (I)n Roman-Dutch law the complainant was always entitled to his interdict, and it is clearly recognised in H South Africa by an avalanche of authority that the interdict and the declaration of rights are still the basic remedies for any infringements of the right to the reasonable enjoyment of property....'

In the Superslate case supra Rumpff JA observed (at 120F - G):

'Wesenlik is dit, wat onder hinder in die Engelse reg ingesluit I word, by ons die volgende:

(1)

die aantasting van 'n persoonlikheidsreg en wel die reg om onbelemmerde genot van 'n saak te hê, hoofsaaklik onroerende eiendom, en waarby 'n interdik gegee kan word selfs by 'n versteuring sonder skuld of opset, en

(2)

die aandoen van vermoënsregtelike skade, waarby myns insiens J skuld of opset vereis word.'

Hoexter JA

A In the instant case the appellants do not claim damages for patrimonial loss and the delictual liability of the respondents is not in issue. The inquiry is confined to the question whether there has been unreasonable interference with the rights of the appellants to the enjoyment of their property.

In the judgment of the Court below the affidavits filed by the parties were subjected to a careful and critical examination. Kroon J found B that in relation to the farm 'Goodhope' the appellants had failed to prove that the settlement thereon constituted a public nuisance. In regard to 'Needs Camp', however, the learned Judge recorded the following conclusions:

'... I find that the applicants have established that the settlement at 'Needs Camp' has given rise to an increase in certain C criminal activities perpetrated by persons residing in the settlement which has cognisably adversely affected the ability of the applicants... to utilise their farms for farming purposes and their enjoyment of their farms and which has given rise to a justifiable apprehension on the part of the farmers about the safety of themselves and their families. And, it seems to me, that despite the disclaimer on behalf of the respondents in the papers, the authorities recognise that this D state of affairs has developed; hence the taking of such measures as requiring the Gately Commando to patrol the affected area twice daily and once nightly.

The situation which has developed as a result of the establishment of the settlement at 'Needs Camp' must, in my judgment, be regarded as a public nuisance and it is a direct result of the establishment of the settlement at 'Needs Camp'. The activities complained of are E unreasonable in that they are unlawful and are a public nuisance because they prejudice the rights of the farmers in the respects referred to above. It is no answer, as Mr Van der Merwe, for the respondents, sought to argue, to say that the respondents cannot be held to account for the criminal activities of other persons. The position is not that the respondents are being held...