Research Articles (Mercantile Law)

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Sport and nuisance law
(Juta Law, 2010-01) Van der Walt, A. J.
The author analyses the Supreme Court of Appeal decision in Allaclas Investments (Pty) Ltd v Milnerton Golf Club and concludes that there is a good explanation for the seemingly harsh decision to interdict the golf club from proceeding with its normal business until the danger posed for the appellants by stray golf balls had been eliminated. Comparing the decision to the Cape High Court decision in Laskey v Showzone CC, where the offending neighbour was allowed to continue doing business while eliminating the cause of the nuisance, the author argues that the difference between the two decisions is explained by the long-established distinction between nuisance in the narrow sense (annoyance), which disturbs or hinders neighbours in the use and enjoyment of their property, and nuisance in the wider sense, which involves actual damage to property or personal injury. With reference to comparable case law regarding stray golf and cricket balls in English, Australian, Canadian and German law, the author concludes that the normal reasonable tolerance principle should not find application in the latter category of cases, where the mere fact of significant harm or damage renders the action unlawful and actionable. The article also explores the implications of this conclusion for the notions of abuse of rights and 'coming to the nuisance'.