Gien v Gien 1979 (2) SA 1113 (T)

The Applicant and the Respondent were brothers living on neighbouring livestock farms in the
former Western Transvaal. They used to farm in partnership but fell out over their mother's will
and now detested each other. The Respondent kept a vegetable garden, but had a problem with
baboons raiding it. He bought and installed an apparatus which emitted gas explosions every two
minutes day and night. The Applicant applied for an interdict restraining the Respondent from
using the apparatus in such a way as to cause a nuisance. He alleged that the explosions disturbed
his daily peace of mind and his sleep, as well as his family and workers. Everyone on the farm
had become short-tempered and easily irritated. One of his horses became so volatile as a result
of the noise that it threw its rider and had to be taken off the farm in order to calm it. The cattle
were restless and resisted dipping. Generally, the effect of the noise was to disrupt his farming
activities.

In an application for an interdict requires the applicant to show that he has:

i. A clear right (i.e. the Applicant must prove the existence of a right on a balance of
probabilities);
ii.That there has been an infringement of the right by the Respondent, or that an infringement is
threatened; and
iii. That there is no adequate remedy other than the interdict to protect the Applicant’s right.

The Applicant’s rights of ownership (the right to peaceful and undisturbed enjoyment of a thing)
had been infringed upon and in this case the court had to decide whether the Respondent had
infringed the Applicant’s right and if so, whether the Respondent exceed or abuse his rights of
ownership . Where there is a clash between the entitlement of an owner to use their property and
the entitlement of another owner to peaceful and undisturbed enjoyment of their property, the
rights of both owners are limited by placing duties on both. An owner’s rights of use extend only
to the extent that there is a duty on his or her neighbour to tolerate the exercise of those rights. In
other words an owner has a duty not to exceed that limit, not to use the property in a way that
infringes the rights of a neighbour. If the limit is exceeded, it is unlawful conduct that can be
stopped by an interdict.

The test is whether the Respondent's use of his property could be considered reasonable in the
sense of conforming to the standards expected by the legal convictions of the community. The
court looked at a number of factors including (not a numerus clausus):

i. Locality: this was a quiet, rural and well-wooded area where people farm with livestock.
Reasonableness dictated that a farmer should not make more noise than is reasonably necessary
for ordinary farming activities and to safeguard his or her economic interests.
ii. Materiality: Only the causing of harm or discomfort, inconvenience which is material or
substantial will be unreasonable. The materiality test is objective in the sense that not the
individual reaction of a delicate or highly sensitive person who truthfully complains that he
finds the noise to be intolerable is to be decisive, but the reaction of the “reasonable man” – one
who, according to ordinary standards of comfort and convenience, and without any peculiar
sensitivity to the particular noise, would find it, if not quite intolerable, a serious impediment to
the ordinary and reasonable enjoyment of his property. The duration of the noise (all day and
night) and the interval between explosions was added to the objective considerations of
materiality. The sound clearly created problems for the farming operations of the Applicant, in
that the cattle and horses were disturbed by it.
iii. Personality of the Plaintiff or Applicant: it is insufficient for a Plaintiff to show that prejudice
is substantial as far as he is concerned. One has to show that the average person would find it
prejudicial. So if the Plaintiff is excessively sensitive, then the nuisance would not necessarily
affect an average person.
iv. Motive: since Roman law even reasonable, conduct is usually considered unlawful if it is
done with the sole intent of prejudicing a neighbour. The difficulty is that of proving sole intent.
In this case there was no direct evidence of a malicious motive on the part of the respondent. The
court was not prepared to infer a malicious motive. But, where the advantages secured by
particular conduct are slight in relation to the substantial disadvantages caused to a neighbour,
the court may be prepared to assume a malicious motive on the part of the Respondent. If the
advantages were outweighed completely by the disadvantages, the court would be able to infer a
malicious motive. So it is a matter of proportionality. Here the Respondent's conduct was
intended to secure a vegetable garden of about 100 square metres. The Respondent's major
farming activity was livestock. In the context of the overall farming activities conducted by the
respondent, the vegetable garden was of very little importance. It might be possible on such a
basis to infer malicious motive, but the court made its decision on the basis of other factors and
not this one.
v. Proportionality: conduct must be reasonable in terms of the benefit it secures, so it must be
proportional to the benefit secured. The end must justify the means. Here the court clearly found
the conduct to be excessive stating that the respondent "used a hammer to kill a fly.”
vi. Public interest, social utility of the activity: this was area which was dry and unsuitable for
vegetable farming. If it were vegetable territory, the Respondent might be able to show that the
development of a vegetable farming operation was in the public interest. The Applicant would
then be required to endure the nuisance in the public interest. (But one can't look at the public
interest in isolation from the other factors. If the conduct was disproportionate this would
possible override the social utility of the conduct, making it unreasonable.)
vii. Whether any other, less harmful measures were available and practicability of reducing
harmful effects: This is related to the proportionality factor. An important element was the fact
that the apparatus could have been muffled and would still have achieved the same results.
Moreover there was no proof of any need to use it at night. These considerations contributed
materially to the decision that the behaviour of the Respondent was unreasonable.

Did the Respondent in act unreasonably in the light of the legal convictions of the community? It
was found here that he did, and therefore that he acted unlawfully. The law recognises the
absoluteness of ownership but simultaneously recognises the limitation thereof. The interests the
respondent wished to protect were of such a restricted scope and the nature of the steps he took
to protect them were so drastic in relation to his goal and to the particular environment that he
exceeded his powers to protect those interests granted to him by the law of property. As a result
he unlawfully interfered with Applicant's rights as owner of the neighbouring property. Under
these circumstances, the Applicant is entitled to an interdict.