HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
no: A 101/2013
30 MAY 2014
In the matter
Ero CC v Mars Properties (Pty) Ltd (A 101/2013)  NAHCMD
171 (30 MAY 2014)
Coram: MILLER AJ
Heard: 13 March
Delivered: 30 May
Flynote: Law of
nuisance – conduct of the respondent must be unreasonable –
whether or not conduct is unreasonable is a question of fact to be
determined objectively – Onus on the applicant.
Motion proceedings –
Bona fide dispute on questions of fact raised by the respondent –
Approach to be adopted by the Courts.
The application is
dismissed with costs which costs shall include the costs of one
instructing and one instructed counsel.
MILLER AJ :
 The first
applicant is the owner of a farm situated in the district of Outjo.
The second and third applicants reside on that farm. That property is
described as Farm Moselle No. 102, Outjo District, Namibia. I shall
refer to it simply as Farm Moselle or the applicant’s farm. The
farm is utilized primarily on a hunting farm, visited by tourists and
 The first
respondent is the owner of a neighbouring farm sharing a common
border with Farm Moselle. The second respondent has been a Director
of the first respondent since July 2011 when the Roedel (One) Trust
become the sole shareholder of the first respondent. The farm is
described as Portion 1 (Terasse) of Farm Bertram No. 80, District
Outjo. I shall likewise refer to it simply as Farm Terasse or the
respondent’s farm. Farm Terasse is used to farm with cattle.
 An inhibiting
phenomenon in the area concerned is the propagation of what is
described as invaded bush. These consist of several acacia and other
species which limit the carrying capacity of the land and the
availability of rangeland.
 The second
respondent states, and it is not placed in issue, that the problem
experienced on Farm Terasse with invader bush was such that it
required some steps to be taken to manage the problem.
 One available
solution, and the one adopted by the respondents, was to manually cut
down and remove the invader bush. The respondents in addition
utilized the bush so removed to manufacture charcoal. The process of
removing the invader bush and turning it into charcoal commenced on
Farm Terasse in 2011 and was still in progress when the applicants
launched these proceedings in April 2013.
 It is common
cause that the process by which charcoal is manufactured on Farm
Terasse results in the emission of smoke and this is what the
applicants complain about.
 They state that
over a period since the commencement of charcoal production on Farm
Terasse, the kilns were moved closer to the homestead on Farm
Meselle. It is stated that as a result the presence of smoke is
causing an unreasonable and continuing nuisance to the second and
third applicants, their employees and their guests. The second
applicant, who deposed to the founding affidavit describes the
situation as follows:
proximity of the charcoal production business to the farm Moselle and
particularly to our homestead, coupled with the use wood burning
kilns is causing an unreasonable and on-going nuisance to the
applicants. The nuisance, inter alia, in that-
22.1 the continuous
emission of clouds of acrid, foul smelling smoke from the kilns is
prejudicial the health of the third applicant and I, the health of
the charcoal workers, the health of our own farm employees, the
animal health on both farms and to the health of visiting guests to
our hunting farm;
22.2 I say that the
continuous emission of smoke is prejudicial to one’s health, as
wood smoke contains numerous harmful substances which have caused the
third and applicant and I to suffer almost every day since January
2013 from watering eyes, throat and chest complaints, burning
sensation in the nasal passages and severe coughing. The aforesaid
problems are also suffered by our employees on the farm and their
families. These harmful substances include carbon monoxides, benzene
and naphthalene, to mention a few;
22.3 moreover, the
continuous burning of wood in the kilns on farm Terasse, emits foul,
unpleasant orders, which, by their very nature, cause physical
distress to human beings and as such constitute a material
interference with the comfort of human beings;
22.4 clothes worn by
ourselves and our guest, as well as linen and curtains smell strongly
and unpleasantly of wood smoke;
22.5 there has been
a rapid and noticeable decline in the number of various species of
naturally occurring game on the farm Moselle, thus materially
prejudicing the business activities of the first applicant and the
utilisation (both consumptive and non-consumptive, i.e. game
watching) of game;
22.6 the smoke
ever-present over the farm is unsightly, to an greater extend in the
early morning hours and under cold weather conditions, and disturbs
the panoramic views on the farm, which negatively affects the tourism
business operated on the farm.’
 Although the
parties attempted to find a negotiated solution to the concerns of
the applicant, these come to nought.
 The applicants,
by way of motion proceedings now seek interdictory relief. The Notice
of Motion reads as follows:
wood-burning kilns producing smoke or any foul odour shall be
operated on farm Portion 1 (Terasse) of the farm Betram No. 80, Outjo
District, Namibia in a proximity of more than five (5) kilometres of
the boundary fence with farm Moselle No. 102, Outjo District,
2. No more than five
(5) wood-burning kilns shall be operative at any time on any part of
the farm Portion 1 (Terasse) of the farm Bertram No. 80, Outjo
3. The respondents
who elect to oppose this application, shall pay the costs hereof
jointly and severally, the one paying the other to be absolved, such
costs to include the costs of one instructing and one instructed
4. Further and/or
 The applicants
attach to their papers a copy of an order granted in their favour by
Hannah J on 24 April 2001. In that matter the applicants were granted
relief in terms which are for all practical purposes identical to the
relief now being sought. The purpose and relevance of this piece of
information escapes me entirely and I will have no regard to it.
 The respondents
oppose the application. In the answering affidavit, deposed to by the
second respondent, they take issue with the applicant’s factual
allegations regarding the frequency and density of the smoke emitted
and dispersed to the applicant’s farm. The respondents also
question the symptoms described by the applicants as a result of the
 Both the
applicants and the respondents seek support for their contentions
with reference to photographs and other supporting affidavits.
 There is a
dispute on the papers before me as to the following issues:
1) Does the smoke
emitted by the respondents charcoal production reach the farm of the
2) If it does, how
frequently does this happen.
3) How seriously if
at all are the applicants detrimentally affected thereby.
 Inasmuch as the
applicants seek final relief in the form of an interdict, the
following requirements must be met:
1) A clearly
2) An injury
committed or one reasonably apprehended.
3) No other remedy
Setlogelo 1914 AD 221)
 The injury
committed and complained about by the applicants is that of nuisance.
 The wrong of
nuisance is recognized as an actionable wrong in our law. The locus
classicus is probably the decision in Regal v African Superslate 1963
(1) SA 102 (A) from which the following passage appears:
concerned here in the main with what can be called neighbour law. As
a general principle everyone can do what he wishes with his property
even if it tends to be to the prejudice or irritation of another, but
as concerns adjacent immovable property it almost goes without saying
that there is less room for unlimited exercise of rights. The law
must provide regulation of conflicting propriety and enjoyment
interests of neighbours and it does this by limiting propriety rights
and imposing obligations on the owners towards each other.’
 As is often the
case in our law the concept of reasonableness is the yardstick by
means of which it is determined in the exercise of proprietary rights
is actionable or not.
 That in turn
requires an evaluation of the prevailing circumstances, facts and the
background against which the conduct complained occurs. That is
entirely a question of fact.
(De Charmoy v Day
Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D).
 It is common
cause, rightly so, that the burden of proof remains with the
 As I had
indicated there are material issues of fact. That being the case the
principles in Plascon-Evans Paints Ltd v Riebeeck Paints (Pty) Ltd
1983 (3) SA 623 (A) find application. They are the following:
1) Final relief will
be granted if the facts averred in the applicants affidavits which
are admitted by the respondent, together with the facts alleged by
the respondent justify such an order.
2) If the denial of
a fact by the respondent does not create a real bona fide dispute of
fact and the Court is satisfied with the inherent credibility of the
applicant’s averments, a final order may be granted.
3) Where the denials
of the respondent are clearly far-fetched and untenable, and capable
of being rejected merely on the papers, no real dispute of fact
 The hurdle the
applicants must overcome is not to prove merely that there is some
interference with their rights. Even if there is that per se does not
entitle them to any relief.
 The applicants
must prove in addition that the conduct of the respondents is not
 In applying to
principles of the Plascon Evans case (supra) to the issues raised in
the papers before me the principles numbered 2 and 3 above in my view
find no application. The facts deposed to by the respondents raises
bona fide disputes of fact which are not far-fetched or untenable.
 The facts
deposed to by the respondents on the control issue admit of no more
than the fact that its charcoal production causes the emission of
smoke. The remainder of the applicant’s allegations as to that
issue are disputed.
 The inevitable
result for the applicants is that they had failed to discharge the
 In the result
the application is dismissed with costs which costs shall include the
costs of one instructing and one instructed counsel.
P J Miller
Behrens & Pfeiffer, Windhoek.
byEngling, Stritter & Partners, Windhoek