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

Abstract

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 of the informal settlement were protected as occupiers under the Extension of Security of Tenure Act 62 of 1997. In Three Rivers Ratepayers Association and Others v Northern Metropolitan 2000 (4) SA 377 (W) (Three Rivers case), an application for an interdict was granted after the local authority could not prove that it had taken reasonable steps to prevent a possible public nuisance caused by an informal settlement being established in the vicinity of the properties owned by the members of the Three Rivers Ratepayers Association. In Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho intervening) 2001 (3) SA 1151 (CC), the court denied an application for an interdict to prevent a temporary transit camp from being established in the vicinity of farms and residential areas. Amongst the arguments presented by the applicants, was that of a public nuisance being constituted, but no evidence could be given to support that argument and it failed in the Constitutional Court.