Note on the use of the public nuisance doctrine in 21st century South African law : notes

• Published date: 01 January 2015
• Pages: 183-194
• Date: 01 January 2015
• DOI: 10.10520/EJC173465
• Author: A. Samuels

Aantekeninge/Notes 183

trial phase, the balance of convenience might have favoured an

injunction. But two years later it seems to me that the position has

reversed” (par 28). The delay was held to be “fatal” (par 28).

What is the position where the proprietor is not aware of the use? It is

submitted that the focus should not be exclusively on “punishing” the

proprietor for not taking timeous action, whilst being aware of the third

party’s activities. In appropriate circumstances a court should thus refuse

to grant an interdict of there has been an extensive period of open use.

4Conclusion

In conclusion, where appropriate, relief can be provided to a third party

user if there was an undue delay, albeit not by way of a substantive law

principle. Principles of equity should also apply to cases where the

proprietor was not aware of the third party’s use.

RW A LB ERTS

University of Johannesburg

Note on the use of the public nuisance doctrine

in 21st century South African law

1Introduction

Since the reception of the common law remedy of public nuisance into

South African law during the late 19th century, it has been applied in

what can be categorised as three series of cases: the first series dating

from the late 19th century to 1943 (Queenstown Municipality v Wiehan

1943 (EDL) 134); the second series consisting of only one case in 1975

(Von Moltke v Costa Aroesa (Pty) Ltd 1975 (1) SA 255 (C) (the Von Moltke

case)); and a third series between 1989 and 2001 (in East London Western

Districts Farmers’ Association v Minister of Education and Development Aid

1989 (2) SA 63 (A) (East London case) the application for an interdict to

abate a public nuisance as a result of an informal settlement was granted;

Diepsloot Residents and Landowners Association and Another v

Administrator Transvaal 1993 (1) SA 577 (T); Diepsloot Residents and

Landowners Association and Another v Administrator Transvaal 1993 (3)

SA 49 (T); Diepsloot Residents and Landowners Association and Another v

Administrator Transvaal 1994 (3) SA 336 (A)). In the Diepsloot trilogy, an

application for an interdict preventing the establishment of the formal

settlement was denied after the court considered policy considerations;

in Rademeyer and Others v Western Districts Councils and Others 1998 (3)

SA 1011 (SE), the application for an interdict to prevent the

establishment of an informal settlement was denied because the

How to cite: Samuels ‘Note on the use of the public nuisance doctrine in 21st century South African law’

2015 De Jure 181-192

http://dx.doi.org/10.17159/2225-7160/2015/v48n1a11