Case summary written by Phathu Ratshitanga and checked by Kirsten Chetty
This case concerns an alleged unlawful nuisance in the form of an offensive odour. The matter was initially heard before a single judge in the Western Cape Division of the High Court of South Africa (“the Court a quo”) and was later taken on appeal to a full bench (“the Court”), where the findings and order of the court a quo were upheld.
The Appellants (being the Respondents in the main action) in this matter were the trustees of the Modderdrift Trust (“Appellants”), which owned a farm, Modderdrift number 93 (“MD93”). The Appellants were in the business of commercial mushroom farming and manufactured their own compost for the purpose of growing said mushrooms. The compost used to fertilise the mushrooms is known to emit a pungent foul odour, particularly ammonia (a urine-like smell) and hydrogen sulphide (a smell like rotten eggs). The Respondents (being the Applicants in the main action) consisted of various entities and individuals, who were situated in close proximity to MD93 on the neighbouring grape farms (“Respondents”).
When the Appellants started their own composting operation, the pungent odour that emanated from MD93, and which eventually invaded the Respondent’s farmhouses, was inescapable. With the Appellant’s expansion of the composting operation, the odours worsened and became unbearable. The Respondents notified the Appellants of the odours on several occasions but with the intensification of the odours, the Respondents had no other option but to approach the court a quo. The Respondents alleged that the offensive odours amounted to an unlawful nuisance and sought to interdict the Appellants from continuing with the composting operation, until such time as they took steps to abate the nuisance.
The Respondents submitted that the odours emanating from the composting operation were highly offensive and made it virtually impossible for them to use their homes. The odours were so strong that they could not sit outside to relax and enjoy their yards. The odours could not be escaped by entering the house. They invaded every space within the house and permeated curtains, linen and similar artefacts, making it almost impossible for the Respondents to use and enjoy their homes. Moreover, they were unable to entertain guests on their properties as the odours were unbearable and caused some of their guests to have sinus attacks. The odours were also accompanied by plagues of flies which ended up in their grape punnets. In support of these allegations the Respondents presented witness affidavits.
The Appellants, on the other hand, made submissions to the effect that there were no offensive odours emanating from MD93. Their witnesses provided affidavits to the effect that they were not aware of any offensive odours emanating from MD93 and that they were not aware of any complaints about such odours.
The court a quo found in favour of the Respondents and ordered that the Appellants refrain from manufacturing their own compost until such time as they had taken reasonable steps to abate the nuisance and could satisfy the court that they had taken steps to ensure that they would successfully continue to prevent the nuisance.
On appeal, the Court considered the evidence presented by the parties, and ultimately concurred with the expert evidence presented by DDA Environmental Engineers (“DDA”) (a firm with extensive experience in air quality assessments and ambient air quality measurements). DDA confirmed that the emissions and foul odours emitted by the compost were measurable and that such odours could be considered as very offensive and similar to those of a waste transfer station containing raw waste, and at times even worse.
The Court noted that there are other cases of this nature, arising from the activity of composting to grow mushrooms. Unless the compost is made in an isolated area, steps must be taken to keep the odours that result from the operation to a minimum. The Court found that this can be achieved by enclosing the composting operation in a building. Since this approach can be very expensive the Court also considered other less expensive methods to remedy this issue, which had been presented before the court a quo, and are briefly as follows:
- Ensuring that the manure stockpile is covered and enclosed at all times;
- avoiding storing more chicken manure than is necessary at any given time;
- ensuring that the piping system is well maintained;
- spawning barns are to be properly equipped;
- proper removal of all spent compost; and
- ensuring that the composting process is under constant supervision of a suitably experienced person.
The Court considered that the odours are not present all the time, their presence depends on wind direction and the stage of the composting process. As such, the temporary absence of the odours does not mean that they are any less highly offensive when experienced. The Court noted a number of possible reasons why the staff on MD93 may have said that they were unaware of the odours, these included that they could be ignoring the odours because their jobs matter more to them or that they could be less sensitive to the odours due to constant exposure to same.
Satisfied with that the odours in question did in fact emanate from the composting operations at MD93, the Court went on to decide on the question of wrongfulness.
The Court referred to the Country Cloud Trading CC v MEC, Department of Infrastructure Development  ZACSA 28; 2015 (1) SA 1 (CC) case, where the Constitutional Court held that:
“The question of wrongfulness is to be determined with regard to the particular circumstances of the case. The question is whether the harm-causing conduct, assessed in accordance with public policy and the legal convictions of the community, constitutionally understood, is or is not acceptable; in short, whether it is objectively reasonable to impose liability”.
In light of this, the Court considered the circumstances of the case and conducted a balancing exercise in which it balanced the right to an environment that is not harmful to health or well-being against the right to choose a trade, occupation or profession freely. The court found that on the evidence, it was possible for the Appellants to abate the nuisance (without its right to choose a trade being violated) by taking reasonable steps.
The appeal was dismissed with costs.
This decision is essential to the development of neighbour law and nuisance principles. It also emphasises the pivotal position the Constitution of the Republic of South Africa, Act 108 of 1996 holds in the development of all areas of our law.
Upon further consideration of an alleged unlawful nuisance, in the form of offensive odours, the Western Cape Division of the High Court balanced the right to choose a trade, occupation or profession freely against the right to an environment that is not harmful to health or well-being. The Court ultimately held that the offending odours could be abated by the offending party without violating its right to conduct a trade.
Appeals, civil law, neighbour law, nuisance, personal injury, delict, interdictory relief.