By Anton Katz SC
As the December vacation period approaches, the spats over noise on neighbourhood WhatsApp groups increases.
I belong to a WhatsApp group dealing with the common interests of residents in the area where I live. Issues raised include safety, lost pets, keys and credit cards, the pick-up times and dates for garbage collection and load-shedding schedules. There are approximately 200 members of the extended residential group.
The topic that generates the most heat and number of posts is what may be called ‘noisy neighbours’. At about 11pm on a recent Saturday night, a polite post by a young father complained that there was a very loud thumping party disturbing the peace, happening in a nearby street. The post included a lament that he was the father of a young child who was sick and badly needed her rest. The responses to the complaining post were swift and numerous. Some posts heavily supported the complaint. They indicated the party host was selfish and had no right to disturb the area, even though he was using his own private property. A couple of posts alerted the local security company to check out the disturbance. But there were some who criticised the complaining father. They said things like ‘Get a life’, ‘It’s Saturday night — party time’, ‘It’s summer — enjoy it’, ‘Live and let live’, ‘Go join the party, I will’. And by 1am the posts on both sides of the debate became more intense. Those who supported the young dad resorted to calling the police and threatening court action. On the other hand, those who had joined the party said it was the best of parties and invited all the neighbours. I’m told the party ended abruptly at 1:30am, and peace broke out.
The law
Does the law deal with the loud (disturbing?) party on a Saturday night in a residential area? Like in the case of all clashes of rights, the law tries to balance and resolve conflicts rather than leave it to the physically stronger of the two to sort out. Peaceful resolution by law is always better than resolution by violence, where the stronger or more violent party prevails.
The law is: an owner may do as he pleases on his own land, but his neighbour also has a right to the enjoyment of his own land. If one of the neighbouring owners uses his land in such a way that materially interferes with the other’s rights of enjoyment, the latter is entitled to court assistance to stop or at least limit the interference.
So, the starting point is that the loud and noisy party host may do as he pleases in his house and garden. But if his conduct materially interferes with his neighbour’s use and enjoyment of his property, then a court could order the party to be shut down. This body of law is known as nuisance or neighbour law. In South Africa, neighbours are expected to tolerate a reasonable level of interference resulting from the use of neighbouring land, but when the use of land affects neighbours in ways that exceed reasonableness it becomes unlawful. An affected party has the right to interdict offending behaviour only if the nuisance is unreasonable. So a court exercises its judgment whether the effects of the nuisance exceed (in its nature, scope or level) what could reasonably be expected of the neighbour to accept or tolerate. Reasonableness will always be the standard.
Reasonableness
And reasonableness will be assessed by whether the problem is continuing, ongoing and repetitive and the intensity of the nuisance. The principle is that any use of land that causes ongoing immissions of water, unpleasant smells, smoke, vibrations or noise on neighbouring land or that in any other way infringes the normal use and enjoyment of neighbouring land, in an ongoing and unreasonable manner, constitutes a nuisance which is unlawful and could therefore be interdicted. Also relevant as to what constitutes reasonable usage depends 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.
In the loud party in a residential area case the law will look at how often a party occurs, how loud is the noise, how long is the noise going to occur, at what time of day and which day of the week. Also did the party host send out warning flyers or WhatsApp posts giving affected neighbours a chance to readjust their schedule during the party? If a very loud party occurs between say 9pm and 1am on a Saturday night once a year with prior reasonable notification of the hours of disturbance to those affected, a court will be less sympathetic to a complaint than to a twice-weekly loud party which starts at 10pm and lasts throughout the night with no end in sight. It always depends on the facts that are proven by the warring neighbours. I sometimes like to play opera (and Bob Marley) relatively loudly, but I try to be considerate and am always sensitive to the time of day. I avoid playing loud music on Sunday afternoons (snooze time) or too early in the morning.
A relatively recent case involving a mixed-use area in Durbanville is interesting. Mr. Christopher worked from home as a pastor, and required a peaceful environment to write, research, study and counsel his congregants. His property abuts the property occupied by the Versters. Mr Verster owns the property.
Mrs Verster operated Puppy Town from the property. On her website, it was described as a daycare centre which offered constant supervision, structured playtime, potty training, basic training, socialisation with different dogs and constant feedback to the owners about their dogs. Every morning Puppy Town’s clients dropped their dogs off at the property and collected them again in the evening. There were up to 17 dogs present on the property at any given time during business hours. The dog noise from Puppy Town drove Pastor Christopher insane, and he went to court to shut it down. The Cape Town High Court found the constant all-day incessant barking unreasonable and ordered Puppy Town to move premises. In doing so, the court considered the evidence of the nature of the neighbourhood, the testimony of the surrounding neighbours about the level of dog noise, and the principles of the law of nuisance including by-laws the City of Cape Town had on its books concerning noise.
Ultimately it boils down to individuals conducting themselves in a reason-able and considerate manner. A useful motto to adopt is: try not to do to others what you wouldn’t want done to you. Always try to see the other person’s point of view, and perhaps peace and harmony will break out.
Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.
• Published in the December 2022/January 2023 Digital Edition – Click here to read it.
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