1. The break of winter blues brings forth the inevitable summer soirée which is
naturally accompanied by loud music and late-night chatter. The strict
confinement of lockdown has made the prospect of wild and wonderful summer
social events a time to be welcomed. Community scheme residents may feel
the summer vibe more intently given their proximity to one another.
2. It’s no secret that the close-knit community environment unique to sectional title
residents comes at the price of tolerance. Everyone is raring to kick-off the
summer with social gatherings, but as we all know, too much of a good thing is
often a recipe for conflict.
3. Community scheme residents whose peace and enjoyment are disrupted by
noisy neighbours are not without remedy.
HYPOTHETCAL SCENARIO: MR AND MRS DOE TAKING THE SUMMER SPIRIT
TOO FAR
4. Mr and Mrs Doe are a young vibrant couple residing in the Living Large Body
Corporate which is fully equipped with a swimming pool and braai area, open to
the residents of the Scheme. The couple host a gathering with friends which
quickly becomes rambunctious and carries on from dusk until dawn. The
gathering is characterised by habitual loud music and flowing alcohol.
Notwithstanding numerous requests from the trustees and the caretaker to tone
it down, the partygoers ignore the requests and start to become aggressive
when asked to cease their festivities.
5. One is left with no choice but to take further steps.
LEGAL FRAMEWORK
6. Section 13(1)(d) of the Sectional Titles Schemes Management Act, 8 of 2011,
provides that an owner must:
“(d) use and enjoy the common property in such a manner as not to
interfere unreasonably with the use and enjoyment thereof by other
owners or other persons lawfully on the premises;”
7. An obvious disturbance of a sectional title owner’s peace and enjoyment of their
property is noisy neighbours. However, the concept of a noise complaint is not
quite so cut-and-dry.
8. Section 25 of the Environment Conservation Act 73 of 1989 (hereinafter “the
Act”) makes provision for the promulgation and enforcement of the Noise
Control Regulations, which regulations distinguish between two categories of
noise complaints, namely:
8.1. “disturbing noise”, which is described as a noise level which exceeds the
zone sound level or, in the absence of a designated zone sound level, a
noise level exceeding 7dBA (decibels) and is characterised as a singular
event or events which are not regular nor recurring; and
8.2. “noise nuisance”, which is described as any sound which disturbs or
impairs the convenience or peace of a person and is a continuous
nuisance.
9. Regulations issued under section 25 of the Act state that music and other sound
producing devices may not be played or operated if the noise level measured
exceeds the prescribed limit. In essence, the person who owns the device or is
in control of the music, is responsible for keeping the noise level under the
prescribed limit.
10. Whilst the regulations are silent as to when such noise levels are acceptable,
as a general rule, reasonably loud music is tolerable until about 10pm on Friday
and Saturday evenings, provided that this is not a consistently recurring event.
11. Our Courts have held that for a noise complaint to be deemed valid, such noise
must not only be intolerable but also unreasonable. In essence one must weigh
whether the noise or nuisance is to be expected given the circumstances. The
courts have further stated that noise and nuisance which is considered an
interference to the enjoyment of one’s property is only actionable when it is
unreasonable. In De Charmoy v Day Star Hatchery (Pty) Limited 1967 (4) SA
188 (D) the Court found that the following factors were to be considered when
determining whether a disturbance, specifically noise, is unreasonable:
(a) type of noise;
(b) degree of persistence;
(c) locality involved; and
(d) times at which the noise is heard.
12. The general test is whether a reasonable man who, according to the ordinary
standards of comfort and convenience, and without any peculiar sensitivity to the particular noise, would find it to be intolerable or alternatively a serious
impediment to the ordinary and reasonable enjoyment of his property.
13. In circumstances where a person is found guilty of contravening one or more of
the regulations issued in terms of section 25 of the Act, as aforesaid, such a
person may be held liable to pay a fine not exceeding R20 000.00 and/or face
imprisonment for a period not exceeding two years.
14. Should the above statutory penalties prove to be unsuccessful in deterring the
unruly noisemakers, an affected person and/or the Body Corporate will be
entitled to approach;
14.1. the Community Scheme Ombud Services in terms of section 39(2)(a) of
the Community Schemes Ombud Service Act, 9 of 2011, for an order
“that particular behaviour or default constitutes a nuisance and requiring
the relevant person to act, or refrain from acting, in a specified way”; or
14.2. a competent High Court for an interdict prohibiting any further
unscrupulous behaviour. One should however bear in mind that judicial
intervention should only be considered as a means of last resort.
PRACTICAL STEPS TO TAKE IN LIGHT OF THE HYPOTHETICAL SCENARIO
15. The point of departure would be for the community scheme, usually the
caretaker and/or trustee(s), to order Mr and Mrs Doe and their guest to exercise
consideration for those around them. At this point the noise has become
reasonably intolerable in that it is a continuous noise well into the early hours of
the morning. However, as is evident from the scenario presented above, the
partygoers have ignored the request from the caretaker and/or trustee(s) and
have become hostile. In such circumstances the caretaker and/or trustee(s) should be careful and avoid any further confrontations, as bodily harm may ensue.
16. Where the caretaker and/or trustees are unable to reason with the merrymakers,
the intervention of the Metro Police or the SAPS may be necessary to disperse
the gathering, and to enforce the provisions and penalties as per the regulations
of the Act.
17. Should the disturbance persist and become a regular occurrence, one should
approach the Body Corporate with a formal complaint. The Body Corporate is
then tasked with investigating the matter and determining whether written
warnings and other financial penalties are justifiable given all relevant
circumstances.
18. Depending on the composition and content of the community scheme’s conduct
rules, the Body Corporate may impose fines and/or penalties on Mr and Mrs
Doe (or their landlord) for such noise and/or nuisance caused in an effort to
prevent subsequent contraventions.
19. The trustees should however bear in mind, that in order to lawfully and
successfully impose fines and/or penalties, an adjudication process should be
followed, which includes giving notice of intention to impose a fine and/or
penalty and affording Mr and Mrs Doe (or their landlord) the opportunity to
present their version of events.
20. As a last resort, where written warnings and financial penalties have been
issued without success, then in such circumstances proceedings through
CSOS, alternatively the High Court, may be instituted for the necessary
interdictory relief against Mr and Mrs Doe
CONCLUSION
21. Community scheme living and the benefits associated therewith have become
a home-owner’s lifestyle of choice, with an inherent element of reciprocal
tolerance. The resurgence of summer is no excuse for the unreasonable
disturbance of the peace and tranquillity that property owners or tenants have
come to expect. In the words of Bill Clinton: “We all do better when we work together.
Our differences do matter, but our common humanity matters more”
22. Should you require any further advice or guidance in respect of the law
pertaining to community schemes, please contact our offices.
R HEERSCHOP
SCHÜLER HEERSCHOP PIENAAR ATTORNEYS
