The history, development and future of public nuisance in light of the Constitution

[摘要] ENGLISH ABSTRACT:The objective of this thesis is to establish whether the notion of public nuisance has a legitimate purpose in post-apartheid South African.Public nuisance originated in English law in the 12th century as a tort-based crime called tort against land and was used to protect the Crown against infringements. This special remedy of the Crown was used in cases of unlawful obstruction of public highways and rivers, damage or injury causing an inconvenience to a class or all of her majesty‟s subjects and a selection of other crimes.The notion of public nuisance was adopted in South African law during the late 19th century. Between its inception and 1943, the notion of public nuisance was applied in line with its original aims, namely to protect and preserve the health, safety and morals of the public at large. Public nuisance regulated unreasonable interferences such as smoke, noise, violence, litter and blockage of roads which originated in a public space or land, as opposed to a private space or land.However, the public nuisance remedy was indirectly used, in a number of cases during the 1990s, by private individuals to apply for an interdict to evict occupiers of informal settlements. In so doing, these private individuals bypassed legislation regulating evictions and in the process disrupted or frustrated new housing developments, especially those provided for in land reform programmes. In fact, it was established that this indirect application of public nuisance is unconstitutional in terms of section 25(1) of the Constitution.Most of the public disturbances originally associated with the public nuisance doctrine are currently provided for in legislation. Since the remedy is now mainly provided for in legislation, the question is whether the doctrine of public nuisance as a Common Law remedy is still relevant in modern South African law.It was concluded, especially after an analysis of two cases during 2009 and 2010, that the notion of public nuisance only has a future in South African law if it is appliedivin the absence of statutory nuisance or any other legislation covering public nuisance offences and where it is not used as an alternative mechanism to evict occupiers.

[发布机构] Stellenbosch University