Getting to grips with neighbour and nuisance laws

By Dr Sayed Iqbal Mohamed Time of article published Jun 30, 2020

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An owner’s right to the use and possession of her property is exclusive and powerful, protected by the Constitution. This exclusive right is not unlimited and is further restrained by the possibility that an owner may use it improperly.

Neighbour and nuisance laws are the main area where the owner’s rights are restricted by the requirement of mutual obligations. People affected by noise can complain to the relevant authorities, such as the Health Department or the police. The level of noise allowed that would not disturb a neighbour is controlled by provincial law and municipal by-laws.

A municipality ought to have nuisance by-laws in terms of the regulations under the Environmental Conservation Act 73 of 1989. An official, having established that a nuisance exists, can issue an abatement notice to the person causing the disturbance. If the noise continues, the perpetrator can receive a fine or be imprisoned.

How effective these laws are, and their enforcement, is another matter and complaints generally remain unsolved in urban and rural areas unless the aggrieved party seeks the court’s intervention. In Gien v Gien 1979 (2) SA 1113 (T), the farmer of an adjoining farm was granted a successful interdict against his neighbour who used an apparatus that made excessive noise. The apparatus was used to keep baboons and wild animals off the farm and operated day and night. The explosive noise disturbed the neighbouring farmer’s family, visitors and cattle.

The court found that the owner had a duty to use reasonable care not to conduct a nuisance while carrying out his economic activities. The court held that ownership is the most complete real right a person could have with regard to a thing. “The point of departure is that a person, as far as an immovable is concerned, can do on and with his property as he likes. However, this apparently unlimited freedom is only partially true. The absolute entitlements of an owner exist within the boundaries of the law.”

In the Laskey case, Wayne Alan Laskey and David Peter Anderson approached the Cape of Good Hope Provincial Division High Court to stop the “disturbing noise” caused by the theatre On Broadway that adjoined their apartments (Laskey and Another v Showzone CC and Others 2007, 4 All SA 1162 (C). Acting Judge A G Binns-Ward did not grant relief in terms of the Noise Control Regulations, but on the alternative relief sought based on the common law remedy.

The judge said that every person was entitled to use and enjoyment of her or his property, “provided only that the use of the property should not intrude unreasonably on the use and enjoyment by the neighbours of their properties. What constitutes reasonable usage in any given case is dependent on various factors, including the general character of the area in question”.

“Persons living and working in an urban area would, for example, reasonably be expected, in general, to be more forbearing about a higher level of noise intrusion into their lives than neighbours living in a rural housing estate. Social utility is another factor that might affect what owners and occupiers of property might reasonably be expected to put up with...”

There are instances of residents complaining about students causing noise, often involving police intervention. In 1989, in Albert Park, Durban, when most residents were opposed to blacks moving into the area, a meeting with a right-wing group resulted in tackling the noise caused by students. The representative of the group made a surprising remark; “Students are the same, regardless of their ‘colour’ and the focus should be how to resolve students making noise and not black students.”

What happens if negotiation attempts with the offending party to reduce noise levels are unsuccessful?

Students living in two hostels at Pretoria University exhausted all negotiations through the university’s representative with a nearby Springbok Bar to limit the playing of loud music and loud shouting of patrons.

The hostels accommodated 300 students who were affected by the noise, unable to properly study, sleep or rest. The university applied to the court for an interdict against the bar, its manager and the owner of the property.

Acting Judge Ebersohn granted the order preventing the playing of any music except background music. The bar was also prevented from conducting any activity that would result in “disturbing noise” as defined in the Gauteng Noise Control Regulations and further prohibited the bar from conducting “a place of amusement” and any other business that contravened the zoning under the land use rights regulations.

In the Nelson Mandela Metropolitan Municipality & Others v Greyvenouw CC & Others 2004 (2) SA 81 (SE), the court found that the bar known as Crazy Zebra at Walmer, in Port Elizabeth, contravened the statutory law (noise control regulations) and the common law. The residents experienced unbearable noise nuisance including nuisance relating to parking, traffic congestion, public urination and other adverse consequences associated with a busy pub.

The municipality issued a notice calling on the bar owner to comply with its Building Act and regulations by applying for a licence and certificate of acceptability. Several correspondences flowed between the attorneys representing the parties, but the noise continued unabated. The municipality then took the matter to court and was later joined by several residents.

The bar owner was restrained from conducting business from the one piece of land zoned for residential purpose; they were also required to take measures to abate the noise and to refrain from conducting noise from the land zoned business.

* Tenants who need advice during the lockdown period can WhatsApp Pretty Gumede at 0713465595 or Loshni Naidoo at 0714445671 or [email protected], or Dr Mohamed at [email protected]

Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity.

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