Mahlangu v Du Plessis; Du Plessis v Mahlangu and Another (LCC97/2021) [2022] ZALCC 9 (30 March 2022)

Mahlangu v Du Plessis; Du Plessis v Mahlangu and Another (LCC97/2021) [2022] ZALCC 9 (30 March 2022)

The court found that the applicant, as an occupier under ESTA, is entitled to practise her religion, including drum beating and cultural ceremonies, subject to reasonable accommodation of the respondent's property rights. The respondent's objections based on nuisance and alleged criminality under noise regulations do not override the applicant's constitutional and statutory rights, especially where meaningful engagement and negotiation are possible. The court held that the principles governing nuisance apply equally whether the parties are neighbours on the same or different properties. Given conflicting judgments and the novel legal issue regarding nuisance between occupiers on the same...

Citation
[2022] ZALCC 9
Parties
Applicant: Mahlangu Annah Ntombizodwa; Respondent: Du Plessis Servaans Marie van Breda; Applicant: Du Plessis Servaans Marie van Breda; First Respondent: Mahlangu Annah Ntombizodwa; Second Respondent: Agriculture, Land Reform and Rural Development
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
30 March 2022
Case Number
LCC97/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Main Application and Counter Application
Outcome
Leave to appeal to the Supreme Court of Appeal is granted. Costs of the application for leave to appeal will be costs in the appeal.
Judges
Flatela
Legal Topics
Extension of Security of Tenure Act, Freedom of Religion, Nuisance, Property Rights, Noise Regulation
Land and Property Constitutional Law Extension of Security of Tenure Act Freedom of Religion Nuisance Property Rights Noise Regulation

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Parties

Mahlangu Annah Ntombizodwa

Applicant

Du Plessis Servaans Marie van Breda

Respondent

Du Plessis Servaans Marie van Breda

Applicant

Mahlangu Annah Ntombizodwa

First Respondent

Agriculture, Land Reform and Rural Development

Second Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Main Application and Counter Application

Legal Issues

  1. 1 Whether the applicant, as an occupier under ESTA, has the right to practise her religion by beating drums and performing cultural ceremonies on the property.
  2. 2 Whether the respondent's rights to property and enjoyment thereof are unlawfully infringed by the applicant's religious practices.
  3. 3 Whether the drum beating constitutes a nuisance or criminal offence under the National Noise Control Regulations and the Environment Conservation Act.

Ratio Decidendi

The court found that the applicant, as an occupier under ESTA, is entitled to practise her religion, including drum beating and cultural ceremonies, subject to reasonable accommodation of the respondent's property rights. The respondent's objections based on nuisance and alleged criminality under noise regulations do not override the applicant's constitutional and statutory rights, especially where meaningful engagement and negotiation are possible. The court held that the principles governing nuisance apply equally whether the parties are neighbours on the same or different properties. Given conflicting judgments and the novel legal issue regarding nuisance between occupiers on the same...

Court Disposition

Leave to appeal to the Supreme Court of Appeal is granted. Costs of the application for leave to appeal will be costs in the appeal.

Orders

  • Leave to appeal is granted to the Supreme Court of Appeal.
  • The costs of the application for leave to appeal will be costs in the appeal.