WRIGHT V POMONA STONE QUARRIES (PVT) LTD 1988 (2) ZLR 144 (SC) WRIGHT V POMONA STONE QUARRIES (PVT) LTD 1988 (2) ZLR 144 (SC)

WRIGHT v POMONA STONE QUARRIES (PVT) LTD 1988 (2) ZLR 144 (SC)

Flynote

Delict — nuisance existing before plaintiff came to live in area — whether right of action exists — increase in extent of nuisance — desirability of oral evidence when defendant denies any such increase — interdict D granted in respect of nuisance arising since plaintiff came to area.

Headnote

The respondent carried on quarrying operations in the Pomona area of Harare. These operations had commenced in the late 1940s at a time when the suburb of Pomona did not exist. The appellant moved into his house in Pomona suburb in 1979. The house had belonged to his parents and he had grown up in it. He alleged that since 1981 the level of noise from the quarry, which previously he had been aware of but did not find intrusive, began to increase, in terms of both the level of noise and the time at which it occurred. The defendant denied any increase in the level of the noise, but accepted that there was noise occurring at night due to activities at the quarry which used not to occur.

Held, that, assuming that there was no actionable nuisance at the time the appellant moved into the house in 1979, he would succeed only if he proved on the balance of probabilities that the level of noise had substantially increased. He had failed to establish the degree of persistence of the noise, the locality involved and the times when the noise was heard. If there are material disputes, cases of this nature require oral evidence, because once the defendant disputed the appellant's allegations, there was no other way of determining who was telling the truth.

Held, further, that the noise occurring at night started after the appellant moved into his house, and an interdict would be granted in respect of the activities causing this noise.

[Editor's note: without specifically deciding the point, the Court appears to have favoured the view of LORD DENNING MR in Miller & Anor v Jackson & Ors [1977] QB 966; [1977] 3 All ER 338 (CA) and certain South African authorities that there is a defence where a nuisance existed before the plaintiff came to live with it.]