As more people move to sectional titles and estates, noise and nuisance complaints have become a topical issue in South Africa.
Matters relating to ‘nuisance behaviour’ in South Africa typically fall under local by-laws. This means that different cities and municipalities will have their own benchmarks and departments that deal with complaints.
However, South African law does make a distinction between ‘Disturbing Noise’ and ‘Noise Nuisance’, says Eduan Milner of Eduan Milner Attorneys, Notaries and Conveyancers.
“The first (Disturbing Noise) is objective and is defined as a scientifically measurable noise level – such as a loud party where music is played at midnight at volume where the lyrics are audible to neighbours – while the latter (Noise Nuisance) is a subjective measure and is defined as any noise that disturbs or impairs the convenience or peace of any person – like the incessant barking of a neighbour’s dog.”
Both are illegal in terms of the Environment Conservation Act but, while the first is usually effectively handled with a call to the police, the latter is not always as simple, the legal expert said.
“In order to show that a Noise Nuisance exists, a reasonable person must find a certain noise intolerable or seriously effecting his enjoyment of his property and it may come down to a court applying a test of objective reasonableness,” said Milner.
“In residential areas, the enforcement is by the local authority and there are various penalties provided it is shown that the noise actually exceeds acceptable levels. Generally the ‘guilty party’ will be asked to desist from making the noise, and if they fail to do so, further steps can be taken – such as fines issued by the authorities or an action brought to court by the complainant.”
However, this final step should be carefully considered and complainants must ensure they have all their ducks in a row, as payment for the costs usually depends on the outcome with the courts ordering the unsuccessful party to settle the costs.
Noise disturbance vs noise nuisance
The City of Cape Town’s noise handbook defines a noise disturbance as a louder and continuous (long-term) type of noise that can be measured and comes from sources that are more permanent.
Examples may include:
- Industrial noise (machinery/vehicles/activity);
- Church singing/bells;
- Calls to Mosque;
- An extractor fan;
- A generator.
“A noise disturbance is measured to exceed the allowable legal noise limits. Noise is considered measurable if it continues for at least 10 minutes. A decibel reading will need to be taken to enforce control,” the city said.
By comparison, a noise nuisance disturbs or impairs the convenience or peace of any person.
“Unlike a noise disturbance, it is not a repetitive or constant noise, but still exceeds the amount of noise allowed during the times mentioned above,” the city said.
Examples may include:
- A sparking electric fence;
- Public rowdiness (shouting, screaming and/or fighting);
- House parties or loud music;
- Animal noise (eg. dogs barking, whimpering or fighting or a rooster crowing.);
- Domestic abuse/disputes (verbal/physical);
- Any other nuisance noise.
Cape Town said that economic interest has always dominated noise control, but this now has to be weighed against other likely costs, such as:
- Loss of earnings;
- Loss of productivity;
- Burden on the health services and the criminal justice system;
- Increasing violence;
- Human misery;
- Social anger; or
- Loss of quality of life that noise causes.
Dealing with complaints
Legal education website Law4All says that residents have a number of legal options when dealing with a legal complaint when a face-to-face approach is unsuccessful.
The group first advocates for solving the issue in an amicable manner. It said that residents should consider appointing a mediator to facilitate a session to resolve the dispute. “This approach is still on the civil side of things,” it said.
Should the neighbourly way not yield any results, you are within your legal rights to lay a complaint with the authorities via a written statement.
“After assessing the information, a law enforcement official will investigate the issue further to see to what extent the noise/nuisance is disruptive and possibly illegal.
“If so, they will inform your neighbour to reduce the noise, and if the issue persists, the official can issue a fine or- in very extreme instances- confiscate the equipment responsible for the noise.”
The final option is asking a lawyer to write to your neighbour and ask them to desist. Should that not work, your lawyer can apply for an interdict to stop the noise, it said,
“The court will take the following into account: the type of noise, how often it occurs, where it comes from and what’s been done to try and resolve it. You will also have to inform that court how the noise has negatively impacted your life, health, comfort and general well-being.”
Should your neighbour ignore the court interdict and not change their disruptive ways, they may be found guilty of contempt of court. This could result in a fine of up to R20,000) or jail time of up to two years, it said.