<--- Back to contents
Chapter 11 - Environmental LawThe Common LawThe common law is relevant in dealing with environment issues through the Law of Delict, the Law of Nuisance & the Law of Neighbours. The common law rules of delict, nuisance and neighbour law can be used to protect people’s environmental rights relating to noise pollution, air pollution and water pollution.
The Law of Delict
The common law of delict allows you to claim compensation from someone who does something that causes you harm. Such an action is called a delict. For example, if a person drives their car negligently and collides with the car of another person, the owner of the damaged car can sue the driver who negligently or intentionally caused the crash. The owner of the damaged car can claim the cost of repairing the damage to the car as well as compensation for any of his or her injuries. This claim would be made under the common law of delict.
For a delictual claim to succeed the person making the claim (the claimant) must prove:
- That the action of the other person was wrongful because it caused harm to another person or their property;
- That the person doing the action was negligent (was at fault) or acted intentionally;
- That the claimant suffered loss which can be given a monetary value (this monetary value is called damages);
- That the monetary loss (damages) was suffered as a result of the action of the negligent person (the action of the negligent person caused the monetary loss).
How does this help you with an environmental issue?
You can sue a person in court for loss caused to you by the wrongful actions of a person and you can claim compensation for this loss. This will have to be done through an attorney who will prepare the case and take it to the court.
See Ways to resolve environmental disputes.
EXAMPLE
Eric owns a small-holding with a few animals. He makes a small living from his animals. The small-holding borders on a national road. A truck carrying fertiliser goes out of control, leaves the national road and overturns on Eric's land spilling the load of fertiliser into the small dam on his property. As a result the water in the dam is contaminated or polluted. Eric's animals drink from this dam. Eric is not at home to stop his animals drinking the water and as a result they become sick and die. Can Eric claim compensation from the owner of the fertiliser company?
The general rule of delict says that Eric can claim compensation from someone who has done him harm, but he will have to fulfill all the requirements for a successful delict. This means that he will have to show:
- that the action of the driver in spilling the fertiliser into his dam was wrongful;
- that the driver, and therefore the company, was negligent;
- the accident caused the damage (in other words, the spilling of fertiliser caused the death of the animals);
- that as a result of the negligent action of the driver he suffered a quantifiable monetary loss.
|
The Law of Nuisance
The most important aspect of the law of nuisance in regard to environmental rights is the law of private nuisance which recognises the right of an owner of land to enjoy their land in physical comfort, convenience and well-being without unreasonable interference from others. People do have to put up with a certain amount of interference with their right to enjoy their land for example, smoke blowing across or noise generated by another person, as long as this interference is not unreasonable. If the interference is unreasonable then the landowner can take legal action to protect their right to enjoy their land.
EXAMPLE
Bethuel lives in a small town next to a disused quarry. The local authority uses the quarry to dump all the household waste that is collects from residents. Bethuel has become sick as a result of living so close to the waste and has started to develop bad skin ailments. What action can he take?
What rights are affected?
- Bethuel has an environmental right to health and well-being;
- The common law of nuisance gives him the right to enjoy his land without his enjoyment being unreasonably infringed.
In this case it would be possible to argue that the municipality’s action in setting up the waste disposal site infringes his environmental right and constitutes a nuisance as it unreasonably infringes upon his right to enjoy his property in physical comfort, convenience and well-being. |
The person suffering the nuisance can apply to the court for (a) an interdict to stop the person who is causing the nuisance from continuing with the conduct, and (b) damages (monetary compensation) where the conduct has resulted in financial loss.The claim can be made against the owner of the property. However, a landowner is not responsible for the nuisance caused by his tenant unless he authorised the nuisance.
The Law of Neighbours
It is a general rule of our law that a landowner may not use his or her property in a way that causes harm to another person. This means that a landowner's right to use the property is limited and there is an obligation on him or her not to act in a way that will infringe the rights of a neighbour. The test of whether the landowner's use of his property fails to comply with this obligation is one of reasonableness and fairness. This principle of reasonableness is relevant to all forms of polluting activities.
EXAMPLE
Derrick lives on a cattle farm in a quiet rural area. His neighbour has set up a device to scare baboons away from his kitchen vegetable garden which makes explosive noises at regular intervals during the day and night. Derrick’s family cannot sleep because of the noise, and his cattle have become restless and uncontrollable. What can he do?
What rights are affected?
Here we can see the interaction of the three branches of law that we have discussed so far:
- The Constitution (Section 24) gives people an environmental right to health and well-being. This right is being infringed by noise pollution.
- The Law of Nuisance says that Derrick has the right to enjoy his land without his enjoyment being unreasonably infringed by another person.
- The Law of Neighbours says that Derrick is entitled to require his neighbour not to use his property (the neighbours) in a way that will infringe his legally protected rights.
In this case it would be possible to argue that:
- Neighbour Law gives Derrick the right to have his neighbour not cause a greater noise than is reasonable for carrying out of the neighbour’s economic activities;
- the interests which the neighbour is trying to protect (a vegetable garden) are very limited;
- the methods used are not in proportion to the disturbance created by the explosive device;
- consequently, the neighbour’s use of his property is not reasonable and fair to Derrick.
|
| 