Hanri Mostert, ‘Nuisance’

Does a constitutional order, one supporting human rights, change the way nuisance law works? In Scotland and South Africa nuisance law historically developed in very similar ways, and in both jurisdictions, the introduction of justiciable human rights has an impact on the general understanding of legal rules and principles. This essay focuses on the substantive test for nuisance to determine whether understandings of reasonableness and tolerability are influenced by a human-rights paradigm.

Assuming that in both South Africa and Scotland horizontal application of human rights provisions can be accepted, this essay shows how the common law on nuisance has and will be developed where appropriate, to comply with human-rights standards. Although neither jurisdiction has as yet had an opportunity to consider the application of human rights to the nuisance context, the analysis draws on (a) the experience in other jurisdictions, specifically case law of English, Dutch and European origin; (b) comparable contexts, specifically eviction law in South African and environmental regulation in Scotland.

In its conclusion, the essay comments on the roles of the state and the conceptualisation of engaged citizenship as it relates to nuisance law.

Mostert, Hanri, Nuisance (March 19, 2013), in Daniel Visser & Elspeth Reid (eds) Private Law and Human Rights: Bringing Rights Home in Scotland and South Africa, Forthcoming.

First posted 2013-06-10 06:45:29

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