Lekhetho Ntsukunyane
The High Court on Monday heard a case in which two Sekamaneng neighbours are fighting over a “nuisance” emanating from a faulty septic tank and overhanging branches “that are also a nuisance in that the leaves therefrom drop onto the plaintiff’s property”.
Justice Tšeliso Monaphathi heard why Paulina Thaane—a senior accountant at a Maseru firm—is suing her neighbour, Mothibeli Linakane, for over M3 million over the issue.
According to evidence led in court, Ms Thaane is demanding the compensation after Mr Linakane, who owns a construction firm, “failed to remove the nuisance by fixing his septic tank and toilet and emptying them before the sewage flowed into the plaintiff’s property.”
Ms Thaane further wants the court to issue an order directing Mr Linakane to empty the sewage “that has flowed into a hole inside the plaintiff’s property”.
She also wants the court to direct Mr Linakane “to cut-off the overhanging branches that are a nuisance in that the leaves therefrom drop onto the plaintiff’s property” and interdict her neighbour “to prevent the said nuisance from recurring in future”.
Ms Thaane also wants the court to direct Mr Linakane to rebuild her perimeter-wall he demolished “under the pretext that he was attending to the sewage”.
The applicant is demanding M3, 058, 200 from Mr Linakane as damages for subjecting her to the “repugnant odour of the sewage everyday of her life since 2012”.
Advocate Vuyelo Kotelo, who represents Ms Thaane, told the court how Mr Linakane had ignored “pleas and directives” to address the “nuisance”, prompting her client to “seek justice and have peace of mind on her property”.
But according to Advocate Qhalehang Letsika, who represents Mr Linakane, the court should dismiss the claims which he argued lacked substance “and are baseless for the court to vilify my client”.
Advocate Letsika said: “The plaintiff’s claims lack substance for action to be taken. She is claiming M2million for injustice she has suffered due to the intentional and malicious infringement of her property rights but she has no medical report from a doctor and no affirmations from any psychologist.
“She alleges that there was loss of income because she no longer plants trees; she says she has lost M2 400 every year since 2012 because she could not plant her seasonal vegetables but there are no receipts, as a matter of evidence, of her conducting business. This is all a mystery to the defence.”
Advocate Letsika submitted Ms Thaane had also failed to prove how the sewage had prevented her from planting the vegetables.
“We have failed to establish which statutory provisions she is relying on to prove how non-compliance renders the defendant liable to pay the claim. The plaintiff also claims to have been nauseated by insects flying all over her property to the extent that she had to fumigate them at a cost of M3000. Why flying insects? Insects fly over every house. Where did the plaintiff purchase the pesticides and what kind of insects were they?”
However, Advocate Kotelo counter-argued: “This is a serious matter not to be taken lightly. The plaintiff has endured emotional shock and frustrations”.
Meanwhile, the court also heard how Ms Thaane failed to build a two-roomed flat and toilet on her property in December 2012 due to her neighbour’s defective septic tank.
Advocate Kotelo submitted her client’s project was abandoned “because of the sewage from the defendant’s septic tank which seeped into a hole she had dug for the toilet.
“She has had to grapple with white-and-black fattish stuff and leaves falling on her property from trees protruding from the defendant’s yard, making her life unbearable.”
She further alleges Mr Linakane defied orders from Maseru City Council (MCC) to resolve the complaints. Council and the Attorney General appear as second and third defendants respectively, in her court papers.
Advocate Kotelo added: “The plaintiff suffered emotional shock, internal insomnia, repulsion and hypertension, due to the odour from the stench and also frustration caused by the nuisance.”
Postponing the case to 26 March 2015, Justice Monaphathi said Advocate Kotelo should “go and prepare” her heads of argument “accordingly”.
