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[2020] ZAWCHC 14
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Jacobs NO and Others v Hylton Grange (Pty) Ltd and Others (A139/2019) [2020] ZAWCHC 14; [2020] 2 All SA 89 (WCC); 2020 (4) SA 234 (WCC) (27 February 2020)

THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Appeal
Case No: A139/2019
Case
No
a quo
: 10660/2016
In
the matter between
JOHANNES
HENDRIK JACOBS N.O.
FIRST
APPELLANT
HELENA
FRANCES JACOBS N.O.
SECOND
APPELLANT
JOHANNES
JACOBUS ESTERHUYSE N.O.
THIRD
APPELLANT
and
HYLTON
GRANGE (PTY) LTD
FIRST
RESPONDENT
CHRISTOFFEL
SLABBERT VAN WYK
SECOND
RESPONDENT
MODDERDRIFT
BOERDERY (PTY) LTD
THIRD
RESPONDENT
PIETER
JACQUES BEUKES
FOURTH
RESPONDENT
Coram:
Allie,
Rogers and Cloete JJ
Heard
:
27 January 2020
Delivered:
27 February 2020
JUDGMENT
Rogers
J (Allie and Cloete JJ concurring)
Introduction
[1]
This case is about an
alleged unlawful nuisance in the form of offensive odours. The
appellants and respondents in the appeal, which
is with the leave of
the court
a quo
,
were respectively the respondents and applicants in the proceedings
under appeal.
[2]
The appellants are the
trustees of the Modderdrift Trust (‘MT’), which owns a
farm, Modderdrift No 93 in the De Doorns
area. To avoid confusion
with the third respondent’s farm, mentioned below, I shall
refer to MT’s farm as ‘MD93’.
[3]
The first and third
respondents are companies which own or lease grape farms bordering on
MD93. The second and fourth respondents
are individuals associated
with the first and third respondents respectively, and reside on the
grape farms. I shall refer to the
present respondents as they were in
the court
a quo
,
ie as the applicants. The first applicant’s farm, which lies to
the east of MD93, is called Hylton Grange. The third applicant
leases
and farms on a farm called Modderdrift, which lies to the south of
MD93.
[4]
The order under appeal was
granted by Hack AJ on 13 December 2018, and reads thus:
‘
(a)  The
respondents are ordered, subject to the provisions of paragraph (b)
below, to cease all composting activities
on the farm known as
Modderdrift No 93 within a period of sixty days from the date of this
order.
(b)  The
respondents are interdicted and restrained from recommencing any
composting activities until such time as they
have obtained leave
from this Court to do so, upon reasonable notice to the applicants,
which application is to be supported by
evidence, including expert
evidence that:
(i)  all
reasonable steps to abate the nuisance caused by the composting
activities have been taken and are likely to
be successful, and
(ii)  the
composting activities will be overseen by a suitably trained and
qualified person.
(c)  respondents
shall pay the applicants’ costs, jointly and severally, the one
paying, the other to be absolved.’
[5]
The composting activities
mentioned in this order are carried out by MT as part of commercial
mushroom farming. MT’s trading
name is Royal Mushrooms. The
compost (or substrate) is the material in which the mushrooms grow.
It is not in dispute that the
making of mushroom substrate can emit
gases with offensive odours, particularly ammonia (an acrid
urine-like smell) and hydrogen
sulphide (a smell like rotten eggs).
It is thus unsurprising that successful nuisance cases against
mushroom farmers have been
mounted in other jurisdictions, where the
complaints were similar to those made in the present case (see
Feiner
v Domachuk
(1994)
35 NSWLR 485
;
Adelaide
Mushroom Nominees Pty Ltd v Devonport City Council
[1997]
TASRMPAT 85
;
Pyke
v. Tri Gro Enterprises Ltd
55
OR (3d) 257;
2001 CanLII 8581 (ON CA)).
[6]
Unless substrate is made
in an isolated area, steps must therefore be taken to keep these
odours to a minimum. Although this can
be done by totally enclosing
the composting operation inside a building, this is expensive. The
evidence in the court
a
quo
was that there are
other reasonable measures which, if implemented and diligently
persisted with, would keep odours within acceptable
limits.
[7]
MT’s operation was
described thus in its expert report.
(a)  The raw materials
for the substrate are wheat straw, chicken manure, gypsum and water.
These are mixed on a concrete
preparation apron, water being
continuously added to the dry elements to saturate the mixture. Water
run-off (known as leachate)
is collected and recirculated.
(b)  The mixture is
placed in bunkers to ferment for about two weeks, during which it is
turned and aerated in accordance
with a schedule.
(c)  The fermented
mixture (the growth substrate) is moved to a curing tunnel where it
is fermented for another week.
(d)  Mushrooms are
spawned in the substrate, put in plastic growth bags, and placed in
mushroom tunnels.
(d)  After nine to ten
weeks, when the mushrooms have been harvested, the spent growth
substrate is taken outside and
allowed to further decompose. This
spent compost is alleged to be sought after as a soil conditioner for
vineyards.
[8]
The applicants launched
their application in June 2016. In December 2016, and after delivery
of answering and replying papers, Gamble
J made an agreed order in
terms whereof MT was, within one month of the order, to take 11
remedial steps envisaged in the reports
of Dr Willem Smit, one of the
applicants’ expert witnesses, and in the report of Water &
Waste Utilisation Solutions
(Pty) Ltd (‘WWUS’), MT’s
expert. The parties’ experts were to conduct a joint inspection
to monitor progress.
The application was postponed for hearing on 11
April 2017, with leave granted to the parties to amplify their papers
if necessary.
[9]
The remedial steps listed
in the agreed order were:
‘
1.1  Completely
cover and enclose (at all times) the manure stockpile;
1.2   At
no time store more chicken manure than is necessary so as to provide
the materials for its normal operations;
1.3
Repair all leaks in the piping system as and when they occur;
1.4
Ensure the continuous operation of the fan(s) in the spawning barn;
1.5
Replace all broken or blocked air nozzles in the aeration system as
and when it occurs;
1.6   Take
all steps necessary so as to remove all leachate from the aeration
system;
1.7   Take
all reasonable steps so as to prevent the spillage and/or
accumulation of leachate in all other areas;
1.8
Collected leachate should not be recirculated and should be removed
from the premises;
1.9   The
Respondents will adhere to their pasteurisation process to “cook”
the compost in the pasteurisation
tunnel for 6-8 hours at
temperatures in a range of approximately 71°C before the spawning
of the growth process commences and
the compost is taken to the
growth rooms. After the mushrooms are harvested, the growth rooms
will be chemically sterilised;
1.10  Remove
all spent compost off the premises when emptying the bunkers as soon
as practically possible and not reserve same;
1.11  The
composting process should be under constant supervision of a suitably
experienced person.’
[10]
A joint inspection
scheduled for 10 January 2017 was aborted at MT’s instance. It
eventually took place on 21 February 2017.
Although it seemed on the
face of things that MT had implemented the 11 steps, Dr Smit detected
a high level of nitrate nitrogen
in the straw forming the basis of
the substrate. I shall refer to this later, but it is convenient here
to mention that MT’s
principal deponent, Mr Johannes Jacobs,
called Dr Smit’s expertise into question. I am satisfied that
he was able to assist
the court with expert opinions. He has a PhD in
Microbiology (his specialisation being Mycology) and an MSc in Plant
Pathology.
He has undergone mushroom training courses at an institute
in the Netherlands, a country which is a leader in mushroom
cultivation.
Although his current sphere of interest is gourmet
mushrooms, he has knowledge and experience of the commercial
cultivation of
button mushrooms.
[11]
The case was further
postponed. In July 2017, the applicants filed supplementary
affidavits, stating that the offensive odours persisted.

Supplementary answering and replying papers were delivered, and the
application was argued before Hack AJ in April 2018.
The
facts
[12]
It is necessary to
determine what facts were established before applying the law to
those facts. Because the applicants brought
motion proceedings and
did not ask for a referral to oral evidence, the
Plascon-Evans
rule applies. MT’s
counsel submitted that there were material disputes of fact, both in
the lay evidence and in the expert
evidence. In my view, this was a
case where a fairly robust approach was justified. The odours of
which the applicants complained
were not present all the time. The
intensity of the odours reaching their farms depended on the phase of
MT’s operations
and on the direction and strength of the wind.
[13]
The fact that the alleged
odours are often either not present or particularly offensive does
not mean that on other occasions they
are not present and highly
offensive. An inspection
in
loco
by the court
itself would for this reason quite  possibly have been futile,
unless the inspection happened to coincide with
a ‘bad day’.
Because there is no objective measure of odours, there is inevitably
an element of subjectivity in how
they are perceived. Unless there
was a particular reason for believing that witnesses for the
applicants had an ulterior motive,
little was likely to be achieved
by cross-examining them about how they perceived the odours.
When
did he problem start?
[14]
The evidence as to when
the problem of odours began to trouble neighbours is not very
precise. The second applicant, Mr Christoffel
van Wyk, placed the
start of the problem in 2010. Both sides made reference to evidence
given by a Mr J W Botha in mid-2014 in
earlier proceedings. Mr Botha
was an environmental officer employed by the Winelands District
Municipality. A transcript of his
evidence formed part of MT’s
supplementary answering papers. Mr Botha himself was not very precise
on dates, but said that
he had first became aware of MT’s
mushroom operation nearly six years previously, ie around 2008. At
that stage MT was not
manufacturing its own substrate, and according
to Mr Botha there were no complaints of foul odours.
[15]
About a year later, in
2009, there was a petition of complaint, and Mr Botha learnt that MT
was now manufacturing its own substrate.
Mr Jacobs alleged that MT
was making its own substrate ‘long before 2010’. Mr Botha
also testified that the mushroom
operation was initially very modest,
with only two mushroom tunnels. By mid-2014 this had grown to 18
tunnels. So complaints apparently
predated 2010, but they probably
intensified as MT expanded the scale of its operations.
The
gap between 2010 and 2016
[16]
During the period 2010 to
June 2016 the applicants were hoping that the problem of offensive
odours would be resolved by a finding
that the manufacture of the
substrate was an industrial operation not covered by MD93’s
agricultural zoning. The Breede River
Municipality (‘BVM’)
eventually launched proceedings in that regard against MT in June
2012, and the case was heard
in mid-2014. (It was in these
proceedings that Mr Botha testified.) In December 2014 the
magistrate’s court found for BVM
and granted an interdict, but
this order was taken on appeal. The appeal was argued in November
2015. When, by June 2016, no judgment
in the appeal had been
forthcoming, the applicants launched their nuisance application. Two
days later this court handed down judgment
in the appeal, reversing
the magistrate’s decision.
The
applicants’ evidence
[17]
Mr van Wyk said in his
founding affidavit that since 2010 the applicants, and other
neighbours, started to experience offensive
odours which at times
were ‘virtually unbearable’. These occasions were
characterised by a highly offensive and invasive
smell like rotten
eggs and an offensive smell like very potent urine with a burning
sensation inside one’s nose. The smells
were accompanied by
plagues of flies.
[18]
When the wind was blowing
in their direction during certain stages of the composting operation
– something which occurred
relatively often (every few days) –
he and his family and guests could not go outside, ‘as the
smell in the air is
simply sickening and quite unbearable’. It
was ‘quite impossible’ on such occasions to sit and relax
outside,
so much so that when he wished to entertain guests to braais
he invited them to the local golf club, because he could not
guarantee
that conditions on his farm would be tolerable.
[19]
During such periods he and
his family had to close all the windows and doors, ‘yet the
smell invades the house and in fact
pervades everything inside such
as curtains, linen etc’. At such times his wife could not
prepare food, ‘as she just
cannot will herself to do so in such
a foul smelling atmosphere’.
[20]
Pieter Beukes (the fourth
applicant), Jacques Beukes and Eugene Beukes, who live in separate
dwellings on Modderdrift, and whose
homes are between 200 m and
800 m from MD93, made affidavits confirming that their
experiences were the same as those
of Mr van Wyk. There were
confirmatory affidavits to similar effect by five other neighbours
unassociated with the applicants and
whose residences are between
100 m and 1 km from MD93.
[21]
The founding papers
included an affidavit by Ms Sanna Arendse, who resides on Modderdrift
and is a domestic employee of Mr Pieter
Beukes. She stated, in plain
Afrikaans, that sometimes the stink inside the kitchen is so strong
that she cannot bear it. It is
like the smell of a pigsty, it makes
her feel nauseous and gives her a headache. At an earlier time she
worked in the vineyards,
and her co-workers often complained about
the terrible smell. On these occasions they could see a thresher
(‘
dolmasjien
’
)
working on the pile of compost. Children in other families who lived
on the farm near her had sinus problems. Her daughter has
from the
age of eight struggled with pain in her head and eyes, and suffered
from a blocked nose. She was taking monthly sinus
pills. (Her initial
affidavit incorrectly stated that her daughter was eight years old.
In a later affidavit she corrected this,
saying that her daughter was
now 17 years old but that her sinus problems had started when she was
eight, ie around 2008/2009.)
[22]
Mr van Wyk also attached
to his founding papers letters from three grape clients. One raised
his concern about the unpleasant smell
originating from the mushroom
farm and the impact this might have on the grapes. Another referred
to a recent visit, observing
that they had found flies in most of the
first applicant’s grape punnets. During their visit they also
noticed ‘the
unbearable stench’. A third client commented
adversely on the smell and flies, and said that the first applicant
needed to
discuss remedial measures with its pest contractor.
[23]
The applicants also relied
on an expert report by DDA Environmental Engineers (‘DDA’),
a firm with extensive experience
in air quality assessments and
ambient air quality measurements. DDA visited Hylton Grange on 1 and
2 February 2016 in order to
measure ammonia and hydrogen sulphide
concentrations. There was a gentle south-westerly wind, ie from the
direction of MD93. The
most sophisticated measurements were taken
with a Draeger X-am 7000 gas analyser. The readings for ammonia (NH
3
)
at nine different measurement points (six on the boundary with MD93,
three at the homestead) ranged from 1500 µg/m
3
– 6750 µg/m
3
.
Three of the readings were at or above the odour threshold of
3750 µg/m3. The readings were all above the ‘Minimum

Risk Levels’ (‘MRLs’) set for ‘acute’
exposure (1-14 days) by the American Agency for Toxic Substances
and
Disease Registry (‘ATSDR’),
viz
1270 µg/m
3
.
The Draeger machine did not detect hydrogen sulphide (its minimum
detection level is 750 µg/m
3
).
[24]
The operator also sampled
ammonia and hydrogen sulphide at one of the boundary measurement
points, using sorbent tubes in accordance
with a method approved by
an American agency, the National Institute for Occupational Safety
and Health (‘NIOSH’).
The ammonia concentration was just
over 1500 µg/m
3
while the hydrogen sulphide concentration 3,94 µg/m
3
.
[25]
DDA stated in its report
that the fact that the Draeger did not detect hydrogen sulphide did
not mean that a hydrogen sulphide odour
was not detected. Although at
some locations the ammonia concentrations were below the odour
threshold, the sampling technician
‘occasionally experienced
strong pungent and unpleasant odours during the measurement, when the
wind was of a south-westerly
direction, ie from the Royal Mushroom
Facilities’. DDA stated that, based on its experience, the
nuisance potential of the
compound mixture at the measurement points
‘could be considered very offensive’. The operator noted
that from time
to time
‘
there
was a strong pungent smell of ammonia (cat urine, sweat, ammonia
containing cleaning products), with a mixture of sulphides
(rotten
eggs) and a smell similar to that from waste water treatment plant’.
The
smell at the farm, DDA opined, could be considered as offensive as,
and at times worse than, those experienced within waste
transfer
stations containing raw waste.
[26]
Before I assess MT’s
contrary evidence, I shall summarise the further evidence put up by
the applicants subsequent to the
launching of the application. As to
the frequency of unpleasant odours, Mr van Wyk responded to evidence
of the absence of unpleasant
odours on particular days by saying that
while such odours were regularly experienced, it did not happen every
day or even every
week. He said that the applicants ‘may
experience the foul smells for hours, or even days on end, and then
nothing’.
[27]
As I have mentioned, a
scheduled joint inspection by the experts on 10 January 2017 was
aborted when MT refused to give them access.
(MT alleged that the
meeting had not been arranged with it and would have been disruptive
on that particular day.) The applicants
nevertheless asked its
expert, DDA, to take further measurements, which was done. There were
two measuring points on the common
boundary between MD93 and Hylton
Grange (ie on the eastern boundary of MD93) and a third point at Mr
van Wyk’s house. DDA
used the same Draeger device as before.
There was a light wind blowing from the direction of MD93.
[28]
The ammonia readings
ranged from 1500 µg/m
3
-3000
µg/m
3
.
The readings at the farmhouse, taken 20 minutes apart, were
1500 µg/m
3
and 2250 µg/m
3
.
DDA did not test for hydrogen sulphide. The operator noted that over
the measuring period – about half an hour – the
odour was
‘on and off pungent, with a mixture of fatty acids or amines
smells’. Because the aborted inspection by the
experts had been
scheduled in advance, there is no question of the applicants having
called their expert out on a ‘bad day’.
[29]
The applicants asked DDA
to repeat its measurements a month later, because, despite Gamble J’s
order, they were still finding
the odours unbearable. These further
measurements were done on 10 February 2017. Again, only ammonia was
measured. One measuring
point (MP01) was on MT’s eastern
boundary (ie on the Hylton Grange side of MD93), a second point
(MP02) at Mr van Wyk’s
home, and a third point (MP03) on MT’s
northern boundary. Two measurements were done at each of these
points, about 10 to
20 minutes apart. There was a gentle wind in the
direction of Hylton Grange. At MP01 and MP02 the first measurements
were 1500 µg/m
3
while the second measurements were 3000 µg/m
3
.
The measurements at MP03 on both occasions were 750 µg/m
3
.
DDA states that the lower reading at MP03 was explicable due to the
fact that the wind from the mushroom farm was blowing primarily
in
the Hylton Grange direction, not towards MP03.
[30]
DDA’s conclusion,
based on its inspections and measurements in January and February
2017, was that there had been no material
improvement.
[31]
In accordance with the
order of December 2016, the applicants filed supplementary papers in
July 2017. Mr van Wyk stated in his
affidavit that he was present
when DDA took its measurements in January and February 2017. On 10
January there was a ‘clear
noxious and foul odour in the air’.
He confirmed that he asked DDA to take further measurements on 10
February 2017 ‘as
the noxious smells were still unbearable’.
He stated that it was still the case that when the wind blew in their
direction
during certain stages in the composting operation, they
could not go outside ‘as the smell in the air is simply
sickening
and quite unbearable’. Even with all windows closed,
‘the smell seeps inside the house and clings to all the
curtains
and bedding, making the house itself unbearable’.
[32]
Six supporting affidavits
(apart from expert reports) were filed. A Capespan representative
stated that during his business visits
to Hylton Grange he had had
the ‘unfortunate experience of a terrible odour’. This
had also happened on occasions when
he had clients with him from
overseas supermarkets.
[33]
Two persons working at
Boland Cartons, whose offices are situated near MD93, confirmed the
presence of foul odours. One of these
deponents stated that since she
started working for the company in 2014 she had ‘noticed a bad
smell that lingers in the
air from time to time’. On some days
it was much worse than others, and this made the working environment
unbearable. When
it was hot she liked to open her office window ‘but
the smell makes it impossible during those times’. When the
wind
blew from MT’s direction, ‘the smell is really not
pleasant’. Her colleague, the other deponent, stated that over

a number of years he has experienced ‘a vile stench’,
carried by the wind from MT’s direction. This happened

regularly, depending on wind direction.
[34]
Several of the applicants’
guests made affidavits describing their experiences when visiting the
applicants’ farms.
Mr Anthony Neilson and his wife had dinner
with Mr Beukes on 28 April 2017. They had barely arrived when they
became aware of ‘a
terrible smell (of rotten egg) which was
also pungent’. He did not want to say anything about it but
then suffered a serious
sinus attack and had to leave early: ‘It
was frankly impossible to enjoy the dinner and company with the foul
smell in the
air.’
[35]
Mr Joseph Gouws and his
wife had dinner at Mr Beukes’s house on 5 May 2017. After
several hours they noticed ‘a terrible
smell (of rotten eggs)’
inside the house. They went outside and noticed that the wind was
coming from MD93, whereas earlier
in the evening it had been from the
north-west. Not long after the foul odour started, Mr Gouws’s
wife suffered a serious
sinus attack which lasted for about half an
hour. The smell started to abate when the wind direction changed
again.
[36]
A Mr Christoffel van
Jaarsveld stated that he had visited Mr van Wyk’s farm several
times in 2017. On most of these occasions
‘there was a
prominent rotten and unbearable smell’.
[37]
In response to allegations
by Mr Jacobs about the ambient odours in De Doorns and the extensive
use of kraal manure in the area,
Mr van Wyk said that kraal manure is
only used on vineyards when they are in bloom, which was for single
weeks in September/October,
and then only when the soil is thought to
require fertilisation, typically once every three seasons. The manure
used on these occasions
is several weeks old, and is not wetted. It
is worked into the ground. Both in time and extent, it is completely
different to the
offensive odours emanating from MD93. For the rest,
farmers producing grapes seldom use manure or fertiliser. When they
do, it
is almost exclusively in pelt form, a product completely
devoid of smells.
[38]
The last piece of evidence
from the applicants’ side which I should mention was a DDA
report filed as part of the applicants’
supplementary replying
papers in late March 2018. DDA took measurements on 8 March 2018, and
obtained ammonia readings at three
of the testing points ranging from
1390 µg/m
3
to 5560 µg/m
3
.
At a fourth testing point no ammonia was detected – this point
was inside the Hylton Grange warehouse, and was measured
in order to
determine whether fertiliser used on the farm had any ammonia
emissions. During the testing, which was conducted over
a period of
five hours, the operator noted ‘pungent, ammonia smells, very
strong and offensive from time to time, depending
on the wind
direction’. The report contained the following significant
observation:
‘…
[T]he
operator specifically travelled around the perimeter of the entire
Royal Mushrooms farm and ascertained that the emissions
and foul
odours were only noticeable and measurable when the wind direction
was coming specifically from the composting facility.
When, at any
given time, the operator moved from such point, the measured
concentration and odours decreased dramatically. As the
mushroom
composting facility covers but a small area of the Royal Mushrooms
farm, this is a clear indication that the emissions
and odours do not
originate from any other source on the farm or any other farm in the
area, other than the composting facility.’
[39]
There was no evidence that
the applicants or any of the other people who have made affidavits in
support of the applicants’
case had any reason to make false
claims against MT. They must have incurred substantial legal fees and
expert expenses, something
they would not have done for a trifling
annoyance. In view of the number of persons who have confirmed Mr van
Wyk’s description
of the foul odours, it cannot be said that
the applicants are unduly sensitive. It is fanciful to suppose that
cross-examination
of the applicants’ witnesses would have
revealed a picture differing materially from the one which the
applicants painted.
MT’s
evidence
[40]
I turn now to the lay
evidence put up by MT. In Mr Jacobs’s answering affidavit he
said that the applicants failed to recognise
the residual odour
pollution levels created by the farming operations in the De Doorns
area. In general terms he denied Mr van
Wyk’s claim of highly
offensive odours and plagues of flies, and said that the latter’s
observations were ‘subjective
and not scientifically
sustainable’. He denied that MT’s composting processes
regularly discharged offensive and harmful
emissions, and denied that
MT was causing a nuisance. He denied, in general terms, the
complaints of foul odours.
[41]
Apart from expert and
technical evidence, the only lay witness to make an affidavit in
support of MT’s opposition was a Ms
Lya
Jafta, sister of Ms Sanna
Arendse, whose evidence for the applicants I have already summarised.
Ms Jafta is employed by MT and lives
on its farm. She stated that Ms
Arendse did not have an eight-year-old daughter. (It is this which
gave rise to the correction
made by Ms Arendse.) For the rest, Ms
Jafta said that she had worked on MD93 for 28 years, not far from her
sister. Her sister
and other workers living nearby had never
complained about bad smells coming from MT’s operations or that
such smells were
causing health problems.
[42]
Ms Arendse attached, to
her clarifying affidavit, medical records from
Brewelskloof
Hospital which show that in
October 2008 her daughter, who was then eight years old (she was born
in November 1999), presented with
acute sinusitis. Medication was
prescribed. In April 2011 she again presented with nasal trouble
which was diagnosed as allergic
rhinitis. In August 2014 there was a
complaint of sinusitis, and medication was prescribed. This does not
prove that the child’s
nose troubles were caused by emissions
from MT’s operations, but there is no reason to question Ms
Arendse’s truthfulness.
Other witnesses, including Mr van Wyk,
have complained of sinus attacks linked to emissions from MT.
[43]
What is perhaps telling
about Ms Jafta’s affidavit is that she does not herself say
that she has not noticed offensive odours.
She simply says that her
sister and other workers living nearby have not complained (at least,
not to her) about the smell.
[44]
It is convenient, at this
juncture, to deal with the transcript of Mr Botha’s evidence,
given in mid-2014, since it was MT
which introduced this material.
Although the proceedings in which Mr Botha testified were concerned
with zoning, not offensive
odours, both sides sought to solicit some
evidence from him on the latter topic. MT placed reliance on those
passages in which
Mr Botha had (a) acknowledged that the problem
of odours was not continuous; (b) had confirmed that some of his
inspection
letters recorded the absence of offensive odours; (c) that
Mr Jacobs had cooperated in trying to remedy the complaints.
[45]
As against this, the
applicants referred to passages in Mr Botha’s evidence
indicating that offensive odours were an ongoing
problem. When being
cross-examined about the alleged difference between substrate and
compost, Mr Botha repeatedly stated that
if the operation were the
pasteurised process described by MT’s then expert, the material
ought not to give off odours, yet
it did. The smell was particularly
prominent when the substrate was being lifted and turned over on the
preparation apron. There
were occasions when there was virtually no
odour if one stood up wind from the heap yet a distinctly rotten
smell if one moved
to the other side of the heap. On one occasion
when he arrived for an inspection there was a terrible smell
(‘
ongelooflik
e
rg
’
),
like dead rat. If, during an inspection of half an hour, he only
picked up an unpleasant odour a couple of times for short periods,
he
would not have thought it fair to state in his inspection letter that
there were offensive odours. He acknowledged that Mr Jacobs
had been
cooperative in trying to improve matters, but nevertheless the
complaints continued to stream in.
[46]
It cannot be said that Mr
Botha’s evidence, as hearsay testimony in the present
proceedings, undermined the applicants’
case. If anything, it
provided support for it.
[47]
In his supplementary
answering affidavit, Mr Jacobs said that an interdict would have
‘absolutely devastating consequences’,
as it would force
MT to shut down, with resultant loss of employment for more than a
hundred people. His own evidence does not
take the question of
offensive odours much further.
[48]
Apart from affidavits from
its own employees, the only other lay ‘evidence’ which MT
offered was that of Mr Willem de
Kock, who resides on a farm about
250 m from MT’s mushroom facility. In the event, Mr de Kock
declined to give MT a signed
affidavit. According to MT’s
attorney, Mr de Kock said that he had signed the draft prepared for
his signature but had decided
not to release it, because he did not
want to upset the Beukeses. MT asked the court to receive the draft
as hearsay evidence.
In the draft Mr de Kock stated that he was
unaware of any untoward foul smells emanating from MT, and that the
ambient odours emanated
from general farming activities. MT’s
attorney also attached a copy of an affidavit signed by Mr de Kock in
November 2014
in other proceedings, in which he stated that there
were no unusual bad smells emanating from MD93.
[49]
The affidavits from
employees comprised an affidavit from MT’s administrative
manager, Ms Melissa Hempel, and 146 identical
affidavits from
farmworkers. In her affidavit Mr Hempel made an identical statement
to the one contained in Mr de Kock’s
draft affidavit. She also
stated that since April 2017 she had been instructed by Mr Jacobs to
monitor and record statistics regarding
the composting yard on a
daily basis. She attached this record, running from April 2017 to
February 2018. One of the columns required
her to indicate whether
there were unpleasant smells. There were two entries per day, at
08:00 and 16:00. According to her log,
there were never unpleasant
smells. The only odours she noted (on only a handful of days) were
‘molasses’ and ‘wet
grass’.
[50]
Ms Hempel’s log
includes the dates on which the
Nielsens
and the Gouwses dined with the Beukeses (28 April and 5 May 2017). Ms
Hempel noted no unpleasant smells
on either date and recorded that there was no wind. If that was
accurate at the times she made
her note, it was not the position
later on those days.
[51]
The affidavits from the
farmworkers were in identical form. In this affidavit, each worker
stated, in English
(a)  that neither
he/she nor any member of his/her family ‘suffer from ailments
or diseases that can be attributed
to any odours or anything else
that may emanate’ from the mushroom farm;
(b)  that the ‘ambient
odours in our vicinity emanate from general farming activities and
the associated smells
of animals, fertilisers, manure, chemicals and
fuels normally associated with a farming area and normal farming
activities’;
(c)  that it was
‘standard farming practice in our area to utilise both chicken
manure and “kraal” manure
as fertiliser so as to release
the organic nutrients therefrom which increases the structure of the
soil and improves its ability
to retain water and nutrients’;
(d)  that his/her livelihood
and that of his/her family depended on his/her work on the farm, and
that if his/her employment
were terminated, he/she and his/her family
would be left destitute without any fixed income and with little
prospect of obtaining
alternative employment.
[52]
It strikes me as somewhat
cynical on MT’s behalf to have obtained these affidavits, in
this form, from people who (and I mean
no disrespect by this) are
likely to be relatively unsophisticated labourers whose mother-tongue
is not English. Words were put
into their mouths, resulting in the
making of claims which strike one as faintly absurd in the
circumstances. It seems to have
been conveyed to them that if the
applicants succeeded, the mushroom farm would close down and they
would all lose their jobs.
It is perhaps unsurprising that they all
signed.
[53]
Mr Jacobs, Ms Hempel and
the farmworkers cannot be regarded as disinterested witnesses. For Mr
Jacobs, the profitability, and perhaps
the survival, of MT’s
mushroom operation is at stake. For Ms Hempel and the farmworkers,
their employment is implicated.
It may be that when they balanced
these considerations against personal comfort, they concluded that
the odours were not highly
offensive.
[54]
Further considerations of
possible relevance, in assessing the evidence of MT’s
employees, are the following. First, both
Dr Smit and WWUS stated
that persons who are constantly exposed to ammonia can become less
sensitive to the smell (WWUS described
this as ‘olfactory
fatigue’). Second, because ammonia is lighter than air, and
hydrogen sulphide heavier, the one rises
and the other falls. This
has the result, according to Dr Smit, that a person standing next to
an emission source may not detect
these gases.
[55]
As part of its
investigation, MT’s expert put together a sniffing panel of
eight people, five of them from outside De Doorns.
This panel
conducted its sniffing tests on 13 October 2016, the second of the
two days on which WWUS was at the farm to take measurements.
No
affidavits from the members of the panel were filed, so the reported
results are hearsay evidence, but they are not without
some weight.
Since the visit by WWUS had obviously been scheduled, MT was in a
position to ensure that any departures from good
practice were not
allowed to take place on those two days.
[56]
The sniffing panel were
taken to ten testing locations in and around the mushroom facility.
This would have been expected to generate
80 inputs, although only 76
were recorded. Of these 76 inputs, 64 (84%) were categorised by the
sniffers as ‘distinct but
not annoying’ or worse (levels
3-6). Of those 64 inputs, seven were categorised as ‘strong
annoying’ (level 4),
three as ‘very strong more annoying’
(level 5) and two as ‘extremely strong, extremely annoying and
disgusting’
(level 6). The inputs at levels 4-6 comprised 16%
of the total inputs.
[57]
Of the 76 inputs, 28
identified ‘pungent, irritating, urine’ (ammonia) as the
primary odour, some of these at levels
4-5. All the sniffers at the
leachate testing point assessed the smell at levels ranging from 3-6,
with ‘rotten eggs’,
‘faecal nauseating, strong’
and ‘faecal nauseating’ as the primary odours. Hydrogen
sulphide probably accounted
for these descriptions.
[58]
Although a majority of the
76 inputs were at levels 1-3, those at levels 4-6 call into question
the evidence of MT employees to
the effect that the operation does
not cause offensive odours. Even when MT could have been expected to
be on its best behaviour,
there were definitely offensive odours
associated with the mushroom operation.
[59]
I turn now to the hydrogen
sulphide and ammonia measurements commissioned by WWUS from
Occupational Hygiene Monitoring Services
(Pty) Ltd (‘OHMS’).
OHMS stated that the odour threshold of hydrogen sulphide is very
low, 1,50 µg/m
3
.
OHMS did its hydrogen sulphide measurements on 12 October 2016, at a
time when the wind was blowing from the west, ie in the direction
of
Hylton Grange. There is a discrepancy between the OHMS and WWUS
reports as to where the four perimeter measurements were taken.
The
OHMS report states that the four perimeter samples (P1-P4) were
placed downwind, ie on the Hylton Grange perimeter.
[1]
This accords with their statement that their plan was based on
monitoring concentrations downwind of the mushroom farm on the farm

perimeter closest to MD93.
[2]
The WWUS report states that P1-P3 were on the Hylton Grange perimeter
and P4 on the Modderdrift perimeter.
[3]
Since OHMS actually did the measurements, and since there was no
reason to measure on the Modderdrift perimeter, I take the OHMS

report to be authoritative. The four measurements on the boundary of
Hylton Grange were all well above the odour threshold –

35 µg/m
3
,
79 µg/m
3
,
115 µg/m
3
and 354 µg/m³. Readings within the mushroom facility
itself ranged from 433 µg/m
3
to 769 µg/m
3
.
These levels are well below safe occupational exposure levels, but
nevertheless distinctly perceptible.
[60]
I do not think that one
can attach much significance to the fact that the hydrogen sulphide
concentration of a control sample taken
at P5, 3 km upwind from
MD93, was 214 µg/m3. The surroundings and activities at P5
do not appear from the reports.
The fact that there was a source of
hydrogen sulphide 3 km away does not mean that there were not
unpleasant hydrogen sulphide
odours emanating from MD93. OHMS also
noted in its report, as a general qualification, that there may have
been chemical interference
from crop spraying which was taking place
on the same day.
[4]
[61]
OHMS’s ammonia
measurements are puzzling. They were taken on 13 October 2016, when
the wind was blowing towards the south.
The perimeter measuring
points were thus placed on MD93’s border with Modderdrift.
OHMS’s highest readings, and these
were within the mushroom
facility, were around 119 µg/m³. On the perimeter,
three of the measuring points detected
no ammonia while a fourth
detected only 3 µg/m
3
.
So at the perimeter, OHMS’s readings differed from DDA’s
by a factor of a thousand or more, while those within the
facility
were a hundred or more times lower than DDA’s.
[62]
One possible explanation
is that OHMS’s ammonia measurements were taken at a time when
the operation was not emitting significant
ammonia. WWUS stated that
on 13 October 2016 the operation involved the moving and mixing of
materials at the start of a new batch.
Although WWUS stated that this
was likely to produce a ‘worst-case scenario’, it is far
from clear that this is so.
If leachate is sprayed onto the straw as
it is recirculated, it may well be that the worst odours come later
in the process. Another
possible explanation is that the operation
was being conducted with particular care on 13 October.
[63]
It is not only the large
gap between the measurements that is puzzling. According to OHMS, the
odour threshold for ammonia is 4310 µg/m
3
.
(DDA placed the odour threshold at 3750 µg/m
3
,
but nothing turns on this for present purposes.) OHMS’s
highest ammonia readings within the facility were around 119 µg/m
3
,
way below the odour threshold. Yet, as I have observed, on the same
day ammonia was identified as the primary odour in 28 of the

sniffers’ inputs. Although some of those were at weak levels,
others were distinct or strong and annoying. How could the
sniffers
smell ammonia if OHMS’s results are right? This suggests that
OHMS readings were either wrong or were taken at a
time when ammonia
was not being emitted in significant quantities.
[64]
WWUS questioned the
accuracy of DDA’s measurements. In terms of ‘elementary
dilution calculations’, a perimeter
reading of 1583 µg/m
3
(such as DDA had obtained) would imply a reading of 405 000 µg/m
3
at source. Since ammonia is life-threatening at 225 000 µg/m
3
,
DDA’s results did not make sense.
[65]
In response, DDA’s
Mr Dracoulides stated
[5]
that there was no real possibility that his company’s
measurements were wrong. The Draeger device was more sophisticated

than the solvent tubes/NIOSH method used by OHMS. The Draeger had
been calibrated only a few days before the measurements were
taken.
The instrument captures the specific odour plume as it meanders away
from source to receptor. The concentration levels at
the receptor may
vary significantly with small changes in wind direction. For this
reason, grab samples, such as those used in
the NIOSH method, may not
capture the maximum levels that the measured compounds reached at
that point over a period of time.
[66]
In regard to the detection
of odours at source, he made the point I have previously mentioned
about the relative weights of ammonia,
hydrogen sulphide and air.
[67]
WWUS’s dilution
calculations were, according to Mr Dracoulides, fatally flawed,
because they assumed that there was only one
puff of odour emitted at
source, which was diluted throughout the entire volume of air between
the source and the receptor. This
ignored the fact that in the
present case the emission would be continuous over a period of time.
Moreover, an odorous gas is not
spread evenly throughout the whole
volume of air, and WWUS’s selection of air volume was
arbitrary.
[68]
MT filed no further expert
evidence in response to Mr Dracoulides’s statements. MT could
have done so as part of its supplementary
answering papers delivered
in March 2018. MT did not commission any further tests. There was no
expert response to the further
tests performed by DDA in January and
February 2017 and in March 2018. It is simply not plausible that on
four separate occasions,
over a period of 25 months, DDA, using more
sophisticated equipment than the solvent tubes, got readings which
were mistakenly
a thousand or more times higher than OHMS’s
measurements. It is not necessary to find that OHMS’s
measurements of 13
October 2016 were wrong. It is enough to conclude,
as I do, that there is no genuine dispute of fact as to the accuracy
of DDA’s
results.
Conclusions
on the evidence
[69]
The lay evidence contained
in the applicants’ supplementary papers, and the supplementary
DDA reports covering the tests of
January and February 2017 and March
2018, show that there was no material improvement pursuant to the
order of December 2016. No
programme for joint monitoring took place
because MT required the applicants to cover half of the costs
pro
tem
, which the
applicants declined to do.
[70]
The joint inspection
originally scheduled for 10 January 2017 took place on 21 February
2017. This was shortly after DDA’s
February 2017 measurements
(at a time when the odours from MD93 were said by the applicants to
be still unbearable) and several
months before the two occasions at
which dinner guests of Mr Beukes were nauseated by the offensive
smells.
[71]
Dr Smit stated that,
visually, it seemed that MT had taken the steps stipulated in the
order of December 2016, and no foul smells
were present. However, he
took a sample of wheat straw from the preparation slab. Chemical
analysis revealed that the straw had
a very high level of nitrate
nitrogen – 317,87 mg/kg. Because this was very high, two
further tests were conducted with
the same result. Nitrate nitrogen
in drinking water should not exceed 10 mg/kg. The nitrate
nitrogen content of water in the
Hex River is 0,31 mg/kg. Dry
straw upon delivery to MT would contain very low levels of nitrate
nitrogen. By contrast, the
nitrate nitrogen content of leachate
ranges from 100 mg/kg to 700 mg/kg.
[72]
Dr Smit concluded that MT
must either dipped the straw in a pond contaminated with leachate or
have sprayed the straw with liquid
organic manure or liquid inorganic
fertiliser (leachate-rich water would be a liquid manure). Because
the mixing occurs on a non-aerated
cement slab and in the natural
presence of iron, the nitrate nitrogen would be converted to ammonia
gas and released into the air.
Item 1.8 of the order of December 2016
had prohibited the recirculation of collected leachate.
[73]
In his supplementary
answering affidavit Mr Jacobs denied that MT submerged straw in water
containing high levels of nitrate nitrogen
or that straw was wetted
with liquid manure or liquid fertiliser. He claimed that if Dr Smit
were an expert he would know that
this was not good farming practice
and that it would negatively affect the quality and yield of
mushrooms produced.
[74]
Dr Smit replied by
pointing out, with reference to a statement contained on the website
of the South African Mushroom Farmers’
Association, that
wetting straw with run-off water, which necessarily contained
leachate, was often done. He stated that this use
of leachate or
other liquid manure is beneficial for the composting process, and
would not be unusual where the operation is conducted
far enough away
from neighbours not to be offensive. And, as Dr Smit observed, Mr
Jacobs failed to offer any alternative explanation
for the high
nitrate nitrogen level of the straw sample.
[75]
Dr Smit also stated in his
reply that he had viewed a video which showed a yellow liquid being
sprayed onto MT’s wheat straw.
He said that leachate-containing
water is often yellowish or brownish in colour. Mr van Wyk’s
supplementary replying affidavit
recorded that this video had been
taken by Mr Beukes in his (Mr van Wyk’s) presence in January
2018. On a number of occasions
during the first three months of 2018
the two of them had approached the composting site through Mr
Beukes’s vineyard and
had seen the spraying of the yellow
liquid. When they came so close that their presence was detected, the
MT employees had switched
the sprayers off. There had been foul
smells on these occasions.
[76]
Since Mr Jacobs did not
challenge the chemical analysis of the straw sample, and offered no
alternative explanation as to how the
straw could have had such a
high nitrate nitrogen level, I do not consider that there was any
material dispute of fact that in
some way or another leachate or
liquid fertiliser was being used to wet the straw.
[77]
On the question of
causation, the evidence adduced by the applicants shows that the
offensive smells emanate from MD93. It is not
in question that the
making of mushroom substrate is calculated to emit foul odours. The
complaints started and intensified with
the manufacturing by MT of
its own substrate and the expansion of its operations. Ordinary
farming operations, such as the cultivation
of vineyards (which is
the predominant agriculture of the Hex River), do not cause highly
offensive odours. The applicants themselves
are grape farmers.
Clearly something out of the ordinary happened to cause them to
complain so bitterly and to make them willing
to spend the money
which the court case and the engagement of experts required.
The
legal principles
[78]
It remains to apply the
law to the facts as I consider them to have been established.
Although the term ‘nuisance’ continues
to be used in this
country under the influence of English law, the question is whether
the conduct of the person causing the alleged
nuisance is, in the
delictual sense, wrongful in relation to the party complaining of the
nuisance. Since the applicants sought
an interdict, not damages, the
question of fault is not germane (
Regal
v African Superslate (Pty) Ltd
1963
(1) SA 102
(A) at 106A-B and 120G;
Intercape
Ferreira Mainliner (Pty) Ltd & others v Minister of Home Affairs
& others
[2009]
ZAWCHC 100
;
2010 (5) SA 367
(WCC) para 143),
and
I have already disposed of causation.
[79]
In a case of nuisance, the
neighbour complains that his right to enjoy the undisturbed use of
his property with reasonable comfort
and convenience is impaired (
De
Charmoy
v
Day Star
Hatchery (Pty) Ltd
1967
(4) SA 188
(D) at 191H-192A;
East
London Western District’s Farmers’ Association &
others v Minister of Education and Development Aid & others
1989
(2) SA 63
(A) at 66I-67B). Because the offending conduct does not
cause physical damage to body or property, wrongfulness is not
presumed.
Wrongfulness must be determined with regard to the
particular circumstances of the case. The question is whether the
harm-causing
conduct, assessed in accordance with public policy and
the legal convictions of the community, constitutionally understood,
is
or is not acceptable; in short, whether it is objectively
reasonable to impose liability (
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[2014] ZASCA 28
;
2015
(1) SA 1
(CC) paras 20-21;
Za
v Smith & another
[2015]
ZASCA 75
;
2015 (4) SA 574
(SCA) paras 15-16).
[80]
The proposition that
conduct will be an actionable nuisance if it is unreasonable must be
understood in this sense (cf
PGB
Boerdery Beleggings (Edms) Bpk & another v Somerville 62 (Edms)
Bpk & another
2008
(2) SA 428
(SCA) para 9). All the factors bearing on this value
judgment must be balanced, including those conventionally mentioned
in the
sphere of nuisance – the locality of the properties; the
suitability of the respondent’s use of its property; the extent

and duration of the interference; the times at which it occurs etc.
In
PGB Boerdery
the
court approved the propositions that an interference will be
unreasonable ‘when it ceases to be a
“to-be-expected-in-the-circumstances”
interference and is
of a type which does not have to be tolerated under the principle of
“give and take, live and let live”’;
that this
involves ‘an objective evaluation of the circumstances and
milieu in which the alleged nuisance has occurred’;
and that
this is achieved, in essence, ‘by comparing the gravity of the
harm caused with the utility of the conduct which
has caused the
harm’. These propositions should not be understood as laying
down a different test to the one formulated in
the authorities I have
cited in my previous paragraph or as excluding any factor which, in
accordance with constitutionally-informed
policy and the legal
convictions of the community, would bear on the reasonableness of
imposing liability.
[81]
The court
a
quo
took its guidance
from the lengthy discussion of wrongfulness in
Wingaardt
& others v Grobler &
another
2010 (6) SA
148
(E). In that case the court said that the test for wrongfulness
is determined ‘with reference to society’s perception
of
justice, equity, good faith and reasonableness’; that this is
now permeated by the values and norms of the Constitution;
that the
test is objective; and that ‘the concept of reasonableness,
when used as the test for wrongfulness, is nothing less
and nothing
more than a reasonable appraisal of all the many elements and
considerations which make up wrongfulness’ (paras
50, 52, 53
and 69). These propositions appear to me to accord with the
authoritative judgments I have mentioned above. Accordingly,
and
without necessarily endorsing everything stated in
Wingaardt
,
I believe that the court
a
quo
guided itself
correctly on the essential enquiry.
[82]
The trial judge remarked
that his attention had not been directed to any South African
decision specifically dealing with odours
and that he had not found
any. Since it is not in dispute that offensive odours can found a
claim based on nuisance, this is neither
here nor there, but for the
sake of completeness I may mention that nuisance claims based on
unpleasant smells were considered
inter
alia
in
Herrington
v Johannesburg Municipality
1909
TH 179
and
Graham v
Dittman
&
Son
1917 TPD 288.
[83]
MT’s counsel
submitted, with reference to authority, that a remedy will only be
granted where the alleged nuisance is proved
to be a continuing wrong
and not merely isolated events. In one of the cases cited by MT’s
counsel,
Rademeyer &
others v Western Districts Council & others
1998
(3) SA 1011
(SE), the court referred to a passage in Van der Merwe
and Olivier
Die
Onregmatige
Daad
in die
Suid-Afrikaanse Reg
6
ed at 504 to the effect that ‘nuisance’ indicates ‘
ʼn
herhaalde inbreukmaking op eiendomsreg
’
.
This passage was cited with apparent approval in
East
London Western Districts Farmers’ Association
case
supra
at
66J-67B. The expression ‘
herhaalde
’
means ‘repeated’.
This does not connote that the nuisance has to be operative without
interruption. The question whether
the frequency of the nuisance is
sufficient to be actionable is part of the reasonableness inquiry,
and the answer may differ from
case to case.
[84]
MT’s counsel argued
that Mr van Wyk moved to Hylton Grange in 2010, by which time the
manufacturing of substrate was already
occurring. He submitted that
the fact that a complainant has ‘moved to the nuisance’,
while not an absolute defence,
is a relevant consideration, citing
Steenkamp & another v
Knysna Local Municipality & another
[2011] ZAWCHC 512
para 30 and
Allaclas
Investments (Pty) Ltd & another v Milnerton Golf Club &
others
2007 (2) SA 40
(C) paras 15-16. But see,
per
contra
,
Laskey
& another v
Showzone
CC & others
2007 (2) SA 48
(C) para 27. Given
the approach to assessing wrongfulness, I do not think it is possible
to lay down an inflexible rule. There
may be circumstances where the
fact that the complainant has ‘moved to the nuisance’
will, as a matter of policy, be
regarded as germane in assessing the
reasonableness of imposing liability. This will particularly be the
case where the complainant
wishes to use his property for a purpose
which has not hitherto characterised the area.
[85]
In the present case,
however, I do not think that the notion of ‘moving to the
nuisance’ has any traction. First, although
Mr van Wyk only
moved to Hylton Grange in 2010, it may be assumed that Hylton Grange
and other neighbouring farms have always been
used as residences for
the farmers and their workers. Mr van Wyk was not seeking to change
the character of his and the neighbouring
farms. Second, Mr van Wyk’s
move to the farm more or less coincided with the time when the
offensive odours began to become
a source of real discomfort to the
neighbours. And third, even if the first and second applicants can be
said to have ‘moved
to the nuisance’, the same has not
been shown to be the case in respect of the third and fourth
applicants.
The
wrongfulness assessment in this case
[86]
Section 24(
a
)
of the Constitution gives everyone the right ‘to an environment
that is not harmful to their health or well-being’.
An
environment will, in my view, be ‘harmful’ to a person’s
‘well-being’ if it is repulsive to the
senses of an
ordinary person.
[87]
Section 28(1)
of the
National Environmental Management Act 107 of 1998
states that every
person who causes or has caused or may cause ‘significant
pollution or degradation of the environment’
must take
reasonable measures to prevent such pollution or degradation. If the
pollution or degradation cannot be avoided or stopped,
the person
must ‘minimise and remedy’ it. ‘Pollution’ is
defined in the same Act as including a change
in the environment
caused by substances and by odours emitted by an activity, where that
change has ‘an adverse effect on
human health or well-being’.
[88]
Section 35(2) of the
National Environmental Management: Air Quality Act 39 of 2004
provides that the occupier of any premises ‘must
take all
reasonable steps to prevent the emission of any offensive odour
caused by any activity’ on such premises. ‘Offensive

odour” is defined
in
the Act as meaning ‘any smell which is considered to be
malodorous or a nuisance to a reasonable person’.
[89]
As against these
provisions, s 22 of the Constitution guarantees to all citizens the
right to choose their trades, occupations or
professions freely,
though the practice thereof may be regulated by law. Mushroom farming
is a trade or occupation.
[90]
MT’s making of
mushroom substrate has been held to be covered by MD93’s
zoning. However, the fact that it is not contrary
to the zoning is a
matter of relatively little importance. In most cases of nuisance,
the conduct complained of is not contrary
to the property’s
zoning. If it were, that would be a short answer.
[91]
What is more significant
is that MT is conducting farming operations in a farming area.
Conduct which might be unacceptable in an
urban environment might
reasonably have to be tolerated in an agricultural one. On the other
hand, the farms in this area are relatively
small. The average farm
size is 18 ha, usually with two main dwellings and around six
labourers’ cottages. Viticulture predominates.
In such a
farming community, neighbouring farm houses would typically be closer
to each other than on more expansive farms. Although
agricultural
activities are conducted in the area, the farms are lawfully and
reasonably used for residential purposes by farmers
and their
employees. And employees, regardless of where they reside, have to
spend many hours each day working on the farms.
[92]
Mushroom farming is not a
common agricultural activity. There is no evidence of any other
mushroom farms in the Hex River Valley.
Mushroom farming does not
require the farmer to make his own substrate, so the manufacturing of
substrate would be a feature of
some but not all mushroom farms. It
is an activity well-known to produce offensive odours.
[93]
Mushrooms are not a staple
crop. They are a luxury foodstuff. The social utility of MT’s
operation lies primarily in the employment
it offers to around 150
people.
[94]
MT conducts mushroom
farming on a large scale. The operation is carried on seven days a
week. Although offensive odours are not
continuous, it is impossible
for neighbours to know when they will occur. When the odours occur,
they are powerful and disgusting,
so that people cannot even enjoy a
meal inside their own homes.
[95]
The applicants use their
farms for an agricultural activity which is common in the area,
namely the cultivation of grapes. It would
not be objectively
reasonable to say to the applicants and other neighbours in
reasonable proximity to MD93 that they have the
choice of putting up
with disgusting smells or moving elsewhere. Conversely, it does not
seem to me to be objectively unreasonable
to say to MT that if it
cannot conduct its mushroom farming without emitting disgusting
smells, it will have to find a more remote
location for its
operation.
[96]
MT’s counsel
submitted that shutting down the mushroom operation would be
catastrophic for the employees and their families.
If it were indeed
the case that the only way to abate the nuisance was to close the
mushroom operation, I do not think that this
unfortunate economic and
social impact would justify a conclusion that an otherwise unlawful
interference with the right of MT’s
neighbours to the
reasonable enjoyment of their properties has to be tolerated. MT is
engaged in a profit-making operation, one
which is, as I have
observed, unusual. It has chosen to do so in a relatively compact
agricultural community, and in a location
which is only a few hundred
metres from the homes of its immediate neighbours. It only began to
make its own substrate in around
2008/2009, at the same time
expanding its operation. Complaints began at around that time and
have been continuous since then.
[97]
Although Mr Jacobs has
alleged that success for the applicants would mean the closure of the
mushroom farm, I do not think that
this allegation can be taken at
face value. The trial judge regarded Mr Jacobs’ allegation as
‘unfounded exaggeration’,
intended to create
‘atmosphere’, and I am inclined to agree. The evidence
does not show that substrate cannot be brought
in from outside. Doing
so may reduce MT’s profit, but it has not been shown that it
would result in the operation becoming
loss-making. As an
alternative, MT could enclose its substrate-making activity in a
building. I accept that this would be a substantial
once-off expense,
but MT did not establish that the scale and profitability of its
enterprise ruled this out. (MT provided no financial
information
about its mushroom business.)
[98]
More importantly, on the
evidence it ought to be possible, by taking reasonable steps, to
abate the nuisance. If it proves not to
be possible, the mushroom
operation will not necessarily have to be discontinued altogether. As
I observed earlier, MT might be
able to find a more remote location.
MT did not allege that there were no alternative sites in the region
for its mushroom farming.
[99]
I conclude that it is
objectively reasonable to impose liability in this case, and that
MT’s conduct is thus wrongful. The
court
a
quo
thus reached the
correct conclusion on this issue.
Conclusion
[100]
In my view, the order
which the court
a quo
granted was apposite in the circumstances. The order granted in
December 2016, which did not entail the cessation of the
compost-making
activity, failed to achieve the desired result, either
because the specified steps were not properly implemented and
persisted
with or because they were in themselves inadequate to bring
an end to the nuisance. The order granted by the court
a
quo
does not
necessarily mean the closure of the mushroom operation. Only the
manufacturing of substrate has been interdicted, and this
might be
temporary.
[101]
MT’s counsel urged
that if we were to dismiss the appeal we should suspend the operation
of the interdict for six months,
so that MT could implement various
steps specified in a draft order which counsel provided to us a few
days after the hearing.
Some of these steps repeat those contained in
the order of December 2016. Others are new. Unfortunately we do not
have evidence
as to the appropriateness and adequacy of the various
measures.
[102]
In my view, a suspension
of the interdict granted by the court
a
quo
is not warranted.
MT was given its opportunity by way of the order of December 2016. A
further suspension would effectively require
another court, on a
future occasion, to decide whether the compost-making activity should
cease. In my opinion, the time has been
reached where it should now
be for MT to satisfy a court on the future occasion that the said
activity should be allowed to resume.
In other words, the default
position, until the court is so satisfied, is that compost-making is
prohibited.
[103]
As I have said, this ought
not to have the consequence that the mushroom operation as a whole
has to be discontinued. Until MT has
satisfied a court, it will,
however, need to buy rather than make its substrate. If MT is able to
provide evidence of steps which
will arrest the nuisance, it ought to
be able to do so promptly. More than a year has elapsed since the
court
a quo
gave judgment, and MT ought long since to determined what it will do
in the event of its appeal failing.
[104]
I would thus dismiss the
appeal with costs.
Allie
J
[105]
I concur and it is so
ordered.
Cloete
J
[106]
I concur.
______________________
Allie
J
______________________
Rogers J
______________________
Cloete
J
APPEARANCES
For
Appellants
A
S de Villiers
Instructed
by
Mostert
& Bosman, Tygervalley
c/o
MacRoberts Inc
3
rd
Floor, The Wembley
Solan
Road
Gardens
For
Respondents
L
Olivier SC
Instructed
by
Rufus
Dercksen Attorneys
c/o
Bisset Boehmke McBlain
3
rd
Floor, 45 Buitengracht Street
Cape
Town
[1]
Para 2, r
ecord 3/305.
[2]
Para 5, r
ecord 3/311.
[3]
Table 3.2, record 3/281.
[4]
Para 7, record 3/315.
[5]
See para 4 of his affidavit at 4/447, specifically confirming the
statements attributed to him by Mr van Wyk in paras 7.2, 8
and 9 of
the latter's replying affidavit (record 4/339-405).