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BUSINESS NEWS - With many South Africans moving their workplaces to their homes in the wake of the Covid-19 pandemic, the influence of one’s neighbours on our daily lives has become more impactful than ever before. 

Recently the Supreme Court of Appeal judgement of Madrasah Taleemuddeen Islamic Institute v Ellaurie and Another 2023 (2) SA 143 (SCA) (hereafter the Ellaurie-case), has once again clearly set out how the court can restrict the use and enjoyment of one’s property so as to not be a nuisance that causes unreasonable interference in one’s neighbourhood after it set aside and replaced the judgement made by the KwaZulu-Natal Division of the High Court.

It is well established that a person's right to the use and enjoyment of their property is one of the strongest rights you can have, however this is not an unlimited right. A person is expected to endure reasonable limitations. When these limitations become unreasonable, it can however constitute a nuisance. 

The Ellaurie-case explained this principle and gave considerable clarity regarding what can be considered an unreasonable interference.

In this case Mister Ellaurie, a man who lives approximately 20 meters from a school for Islamic studies, was subjected to the sound of the Call to Prayer emanating from the mosque located within the school’s property. The purpose of this Call to Prayer is to remind people of the Islamic faith to come to the mosque for their five daily prayers.

The main principle of neighbour law with regard to nuisance cases states that even though everyone has the right to the undisturbed use and enjoyment of their own property, this right can be limited. 

Furthermore, since people in neighbouring properties have the same right, mutual tolerance of reasonable interference can be seen as a civic value. The court then went on to explain that interference would only be unreasonable and thus actionable if it seriously and materially interfered with the complainant’s ordinary comfort and existence.

Fortunately, the court also helped to further define the reasonableness standard by listing several factors that could influence the reasonableness of an interference. Firstly, the seriousness of the interference must be considered along with time and the duration thereof. Furthermore, whether it is possible to easily avoid the harm caused by the interference and lastly the sensitivity of the complainant towards the harm. However, with regard to the complainant's sensitivity, the court went on to explain that the harm will not be considered unreasonable just because the particular complainant has a special form or extraordinary degree of sensitivity to the specific interference.

Since the interference was due to religious observances being conducted, the court also reiterated that the Constitution provides protection to freely observe and manifest different religious beliefs.

Thus, Mister Ellaurie was not able to prove that the interference of his right to the use and enjoyment of his property rights was unreasonably infringed upon by the Call to Prayer and thus it did not constitute a nuisance.

It is Important to note that nuisance law is a very complicated aspect of private law and should be dealt with on a case-by-case basis. Thus, it would be prudent to consult an attorney should you find yourself in similar circumstances given that in specific instances alternative remedies might be available in lieu of an approach to court for relief.

Article by Johan Potgieter, Candidate Attorney (B.Comm; LLB)

For more information kindly contact Johan via e-mail, johan@rgprok.com or 044 601 9900. www.rgprok.co.za

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