Neighbours make a stink over protection order
A SMELLY neighbourhood may be unpleasant, but it is no reason for granting a protection from harassment order against the person liable for the source of the smell, a judge has found.
A couple living in Wellington in the Western Cape turned to the high court to appeal against a protection order their neighbour, an MP, had obtained against them.
The MP claimed they were “harassing” him, with the foul smell coming from their premises.
Berto and Sonja du Toit told the judge that the protection order should have never been granted by the lower court in the first place, as they were merely running a manure business and they never personally targeted their neighbour in any way.
MP Kenneth Jacobs turned to the lower court to obtain a protection order against the Du Toits, saying he could no longer handle the bad smell, flies, and even rats, which he said was as a result of the cow manure business next door.
Jacobs said he had peacefully lived in his suburban home for 28 years. But in 2019 when the Du Toits moved in, things changed drastically. The problem, from the start, was their cow and sheep manure business and the fact that they washed the trucks carrying the smelly substance at their home.
Flies, noise and bad smell became an issue for him and his family, and they worried about manure-infested water running into a nearby river.
Shortly after the Du Toits moved in, Jabobs went to introduce himself and to ask them about their activities. He was told they owned trucks which transported manure, but they said they had another business premises and the trucks were there only temporarily.
But things did not improve. Jacobs said his family were beginning to experience headaches and feeling sick because of the terrible smell in the air.
The nuisance caused by flies, which were not a problem in the area before, was so bad that they could not even enjoy a party at their house.
Jacobs said the problem got worse.
There was grinding, panel beating, working late into the night, trucks moving day and night, and the fly infestation increased. He went to see his neighbours again and took pictures of the trucks filled with manure.
He also saw a concrete pipe in their road was packed with cattle manure. Consequently, he decided to call the health department of the municipality.
He was aware that the municipality issued two notices to the neighbours, which were ignored, and thereafter the municipality issued them with a notice to appear in court.
Jacobs said, meanwhile, he and his wife were being treated for depression and anxiety. He said his meetings, as a parliamentarian, were disturbed as a result. He had to buy ultraviolet lights for the flies, and the lights had side effects on his family’s eyes. As the problem persisted and he was fed-up, he eventually obtained a protection order against his neighbours.
Berto du Toit said his business included buying and selling livestock. He did not house the cattle or sheep on the property and there was no offloading of livestock on the property.
He was charged with the contravention of some municipal by-laws. Although there was an admission of guilt fine fixed, he made representations to the Director of Public Prosecutions.
He said he did not follow, watch, pursue, accost or threaten his neighbours, or engage in verbal, electronic or other communication aimed at them.
Judge Daniel Thulare said it was difficult to understand why the magistrate issued the protection order. He said these orders were intended for the protection of a complainant against the behaviour of a perpetrator.
The judge said the Du Toits, by conducting their business at their property, did not have the intention to cause fly infestation, rat infestation, bad smell or noise, among other offending conduct, directed at Jacobs.
The conduct of a business is far removed from abusive behaviour that induces fear or harm or behaviour intentionally directed at another to cause detriment to that other. The judge subsequently overturned the order granted by the magistrate.