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Zimbabwean law of Nuisance

As far back as Savoy House (Pvt) Ltd v Salisbury City Council 1959 (1) R&N 145 (H); 1959 (2) SA 645 (SR), the court held that Zimbabwe had practically adopted the English Law of nuisance. As far back as 1882 the full bench of the Eastern Districts Court in Holland v Scott (2 E.D.C. 307) held that the English law of nuisance was identical to that of Roman and Roman-Dutch Law. This decision was followed in van der Merwe v Carnarvon Municipality 1948 (3) 613 (C) 619.

The law of nuisance in Zimbabwe is concerned with neighbour law, that is the mutual respect and tolerance between neighbours. It is concerned with nuisance which are likely to disturb, the rest, peace and tranquillity of any occupier of premises in a neighbourhood or in any public place or public street. Riots involve noise and disturbance and are regarded as a nuisance. see, The Presbyterian Church of Southern Africa v Shield of Zimbabwe Insurance Ltd 1991 (2) ZLR 261 (HC). Furthermore, the loud and incessant barking by a dog in a quiet residential area is considered a common law nuisance in Zimbabwe and neighbouring South Africa. see, De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) 188 (D).

The superior courts in Zimbabwe have delivered judgments on public nuisance in Zimbabwe as well as private nuisance in Zimbabwe. Some of the leading decisions include but are not limited to: Francis v Roberts 1972 (2) RLR 238; Wright v Pomona Stone Quarries (Pvt) Ltd 1988 (2) ZLR 144 (SC); W and D Consultants (Pvt) Ltd v Zireva & Others HH 27-16; Topwheels Car Market (Pvt) Ltd v Marketing Sales Agents (Pvt) Ltd & Others HH 2-17; and Mutsai & Others v City of Harare & Others HH 835-17.

The Harare High Court in Innomatz Medical (Pvt) Ltd t/a CBD Specialist Hospital & Maternity v Makumbe t/a Madhadha Liquor Store & Others HH 40-24 at page 3-4 held that:

“The case is one that cannot be left unattended as such a magnitude of disregard to the rights of vulnerable members of society cannot be ignored but their rights ought to be safeguarded. It is therefore a proper case for the Court to adjudicate so as to put a stop to such a disorderly situation. The proximity of the beerhall to the hospital coupled with the beerhall’s day to day activities which proceed into the night, has become a nuisance and the Court holds that indeed the first respondent is infringing the applicant’s rights. The Court elects to readily exercise its discretion in determining the application before it but not without considering the implication of the issuance of an operating license to the 1st Respondent permitting it to carry out its operations on the said premises and the rights flowing from such issuance.”