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Category Archive: #imstaying

Nuisance law – when an odour mushrooms out of control

How the stench from a neighbouring mushroom farm became a court case

Case law is the bane of every law student’s existence. Unlike statutory law, which is straightforward legislation and generally unambiguous, case law involves the analysis of previous legal decisions to analyse a new case and resolve ambiguities. The study of case law is important because interpretation of the law is not always clear-cut. If it were, there would be no need for lawyers; we would need only law enforcement and a judicial system.

Nuisance law Cape Town Lawyers

Case law can be tedious, hence it is a necessary but not always enjoyable part of a lawyer’s education. But occasionally it can be fascinating and serve to illuminate the role of the law in protecting very basic human rights, including the right to well-being. The case of the trustees of the Modderdrift Trust vs. Hylton Grange (Pty) Ltd, Christoffel Slabbert Van Wyk, Modderdrift Boerdery (Pty) Ltd and Pieter Jacques Beukes, involving nuisance and the law, is one such case, particularly relevant as it is Human Rights Month.

What constitutes nuisance?

The case that came before the Western Cape High Court in January this year was in fact the appeal that followed a judgement handed down in 2016, in which the original respondents were ordered to take remedial steps to limit the impact of noxious agricultural odours from their mushroom farming enterprise on nearby neighbours. Despite these actions, the odours persisted and the applicants sought an interdict against the Trust. The smell, though not continuous, was sufficiently offensive when it was present to make life unbearable for neighbours and to drive them indoors, where even shutting windows did not completely obliterate the stench. The case rests on what constitutes nuisance in law.

In bringing the appeal, the Trust argued that the making of compost (called “substrate”) in which to grow the mushrooms was in keeping with the zoning of the farm and the farm could potentially shut down, with the attendant loss of employment for farm workers, if they had to cease making the substrate.

Nuisance law – what did the judges consider?

In reaching their conclusion, the three judges cited numerous cases of nuisance law to establish legal principles, although none specifically dealt with mushroom farming. There are too many to mention in this summary, but you can read the case report here.

They then turned to statutory law. Section 24(a) of the Constitution gives everyone the right ‘to an environment that is not harmful to their health or well-being’. The judges agreed that an  environment that is repulsive to the senses of an ‘ordinary person’ is harmful to their well-being.

They then quoted Section 28(1) of the National Environmental Management Act 107 of 1998, which states that anyone causing ‘significant pollution or degradation of the environment’ must take reasonable measures to prevent such pollution or degradation. If it cannot be avoided, it must be ‘minimise[d] and remed[ied]’. ‘Pollution’ is defined as a change in the environment having ‘an adverse effect on human health or well-being’, caused by substances and by odours from an activity. 

Lastly, Section 35(2) of the National Environmental Management: Air Quality Act 39 of 2004 requires an occupier of any premises to ‘take all reasonable steps to prevent the emission of any offensive odour caused by any activity’ on their premises. ‘Offensive odour’ is defined as ‘any smell which is considered to be malodorous or a nuisance to a reasonable person’.

A sweet-smelling end to a foul story

The presiding judge concluded that ‘it is objectively reasonable to impose liability in this case, and that [the Trust’s] conduct is thus wrongful’. The other two judges concurred. So, although the mushroom farm was not deliberately committing an offence, and was simply carrying out processes involved in its core activity, it was liable for the emission of an intolerable stink that made life unbearable for the neighbours and farm workers on those neighbouring farms. The court ruled that such activities should either be carried out in a more remote location, in an enclosed space, or the substrate must be purchased rather than manufactured on the farm.

If your basic rights are infringed…

If you are subject to unpleasant smells or unsightly views from your property, you may not have to suffer in silence. As the neighbours in this case found, they had a legitimate grievance that was upheld by the court. 

SD Law is a firm of Cape Town attorneys, also in Johannesburg and Durban, who are passionate about the law and about upholding the Constitution and defending human rights. If you think your rights are being infringed, give Simon a call on 086 099 5146 or email for a confidential discussion about your case. 

Further reading:

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Why #ImStaying

South Africans in their droves are standing up for what’s great about our country

No one can deny that the last few months have been a tough time to be a South African…violence against women that seems unstoppable, xenophobic attacks, a weak rand, and a government that appears unable to address these and other issues with any authority. Add to that the tragic loss of national icon, Johnny Clegg, and there hasn’t been a lot of good news to shout about.


But we South Africans are a resilient bunch. Determined to rise above the negativity, a small group of individuals committed to showcasing the good in our country set up the Facebook group #ImStaying. The description on the page says, “This group is dedicated to the South African women and men of all races and all religions, who remain loyal to South Africa. This group is to honour all those who still believe that we as a nation can turn things around. To all those who choose to stay and work together to save this beautiful country we call home!” This group has been gaining momentum and now boasts nearly 500 000 members, with more joining by the day. People share their stories of kindness, compassion and commitment using the hashtag #I’mStaying.

We’re staying

At SD Law, we’re staying. We have dedicated our lives and careers to seeking justice for South Africans. Every day we come face to face with the best and worst of society; and we firmly believe that the good in this beautiful land far outweighs the bad. Here’s why #ImStaying.

Our Constitution

South Africa has the most progressive constitution in the world, and one of the youngest. The current constitution, officially the Constitution of the Republic of South Africa, 1996, is actually our fifth, and was drawn up by Parliament in 1994. It was enacted by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. Since 1996, the Constitution has been amended by seventeen amendment acts.

It is founded on the principle of human rights, enshrined in Chapter 2 – the Bill of Rights. The Bill of Rights is a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. You may know what they are, but many people do not, so it’s worth reiterating exactly what our human rights are.

Basic human rights

  • The right to equality:
    No one has the right to discriminate against you based on your race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth among others.
  • Human dignity:
    Everyone has the right to have their dignity respected.
  • Life:
    Everyone has a right to life and nobody, not even the state, has the right to take a life.
  • Freedom and security:
    No one can be put in prison without good reason, be detained without trial, be tortured or punished in a cruel, inhuman or degrading way.
  • Arrested, detained and accused persons:
    Any arrested person has a right to a lawyer. Prisoners must be kept in proper living conditions.
  • Personal privacy:
    No one, not even the government, has the right to search your house or property or seize your possessions without following the correct legal channels.
  • Freedom of expression:
    Everyone has the freedom to say, write or print what they want, so long as exercising this right does not violate anyone else’s right or break the law in any way.
  • Freedom of association:
    Everyone has the right to associate with a trade union, a political party, or any other club or association.
  • Political rights:
    Every citizen has the right to form a political party and to participate in the activities of a political party. Every citizen has the right to free, fair and regular elections and every adult citizen has the right ­to vote in elections for any political party, and to do so in secret.
  • Education:
    Everyone has the right ­to a basic education and to further education.
  • Healthcare, food, water and social services:
    Everyone has the right to access healthcare services, including reproductive healthcare; sufficient food and water; and social security.
  • Slavery, servitude and forced labour:
    Everyone has the right to choose who to work for and the kind of work they do, and must be paid for their work.
  • Citizenship:
    No-one’s South African citizenship can ever be taken away.
  • Housing:
    Everyone has the right to adequate housing. The government cannot evict you from your home if you own it.
  • Children:
    All children have the right to parental care, shelter, and food. Children may not be neglected or abused or forced to work.

Source: South African Human Rights Commission

It’s not difficult to understand the basis for and importance of these fundamental human rights. Every single one of them was abused under the apartheid regime. But not every country with a turbulent past has been able to take such a decisive stand against human rights abuse. Our Constitution is admired the world over.

Respect for LGBTQI rights

There are only 28 countries that allow same-sex marriage, out of a total of 195 countries in the world recognised by the UN. South Africa was the fifth country to legalise same-sex marriage, in 2006. Furthermore, this legislation was a direct result of a constitutional challenge to the earlier marriage laws on the basis of human rights – the right to equality includes the right to marry.

South Africa offers asylum to people from other countries who are persecuted for their sexual orientation. Unfortunately, cultural norms have not kept pace with legislation, and members of the LGBTQI community do experience discrimination and abuse, both verbal and physical. At SD Law we condemn this and continue to fight for equality and freedom of expression, including sexuality and sexual preference. The protection of the law may not put an end to deep-seated prejudice, but it does mean there are penalties for harassment and intimidation that do not exist in many neighbouring countries, where persecution of same-sex relationships is carried out by the state.

A vibrant civil society

Perhaps it is because of our history of oppression and injustice, but civil society in South Africa is one of the most active in the world. We are proud of organisations like the Treatment Action Campaign, Section 27, the Legal Resources Centre, the Black Sash, Sonke Gender Justice, SWEAT, Open Society Foundation for South Africa, Right2Know, and many others – too many to name – that play a vital role in our democracy. These organisations function as overseers of democratic institutions; they monitor human rights and give citizens, especially vulnerable and marginalised populations, the tools to defend their rights. Some of SA’s finest activists have found their voice through – or indeed founded – these important institutions.

A beautiful country

Lastly, who can deny that South Africa is one of the most beautiful countries on earth! From the Drakensburg to the Wild Coast to the Garden Route to Kruger National Park to the Karoo to Table Mountain, and everything in between, we think South Africa has it all. #ImStaying

Contact us today

SD Law is a firm of Cape Town and Johannesburg attorneys with a deep commitment to constitutional law. If you have experienced discrimination, either at work or in your community, or you feel your rights have been infringed in any way, contact Simon on 086 099 5146 or email for a confidential discussion. We will protect your human rights.


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