My neighbour is a nuisance

It is the third night this week you cannot sleep, because your new neighbour enjoys playing loud rock music late at night. Being kept up till 2 am every morning is affecting your productivity at work. You talk with your neighbour, but he doesn’t seem to see a problem. What now?

Occasional loud noise, if the neighbours have a birthday party, for example, may be considered reasonable. However, if the behaviour of neighbours is repetitively disruptive to the extent that it affects your ability to enjoy your property, then the law supports your concern.

What does the law say about loud neighbours?

There are Noise Control Regulations under the Environment Conservation Act (Act 73 1989). These regulations state that no person (including your neighbour) is allowed to:

Operate or play a radio, television, drum, musical instrument, sound amplifier, loud speaker system or similar device that produces, reproduces or amplifies sound, or allow it to be operated or played so as to cause a noise nuisance.

The regulations also give local authorities (i.e. your municipality) the right to enter premises without prior notice, on condition it’s at a reasonable time of the day. This would be to inspect the premises and take any action if necessary.

What makes your neighbour a nuisance?

The basic question is whether the noise is unreasonable in the circumstances. In a busy city area, for instance, noise pollution is common, but in a residential area life can be expected to be quieter.

Noise is not the only neighbourly “nuisance”. Some other causes of nuisance include:

  1. Bad odours.
  2. Excessive movement of vehicles or people.
  3. Smoke, gas or fumes.

Before reacting to the conduct of your neighbour you should consider the following:

  1. The area affected.
  2. The extent of the disturbance.
  3. The time, duration and frequency of the disturbance.

What can you do?

The first step of any neighbourly dispute should be to approach your neighbour and ask them to stop what’s causing the nuisance, such as telling them to turn down the music. If matters cannot be resolved reasonably and interventions by your local authority or by calling the police produce no results, you should get legal advice on obtaining a court order (interdict), directing the neighbour to stop causing the nuisance.

 Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Government’s administrative decisions

To safeguard against administrative decisions going wrong, the Promotion of Administrative Justice Act of 2000 (PAJA) gives individuals and legal entities the right to fair, lawful and reasonable administrative action. Furthermore, it gives the important right to obtain reasons for administrative actions.

Administrative action?

Applications for an ID or passport or permit, for example, involve administrative action.

Government departments, the police, and parastatals such as ESKOM all take administrative decisions. PAJA applies when a decision made by an arm of government has an effect on someone’s rights.

What does PAJA do?

PAJA requires that a fair procedure is followed when administrative decisions are taken, and gives the important right to obtain reasons for decisions. Persons affected by decisions that go against them, must also be informed of any internal appeals available to them within the government department or body concerned. As a last resort the person affected can approach a court to review the decision.

The following are grounds for review:

  1. There was no good reason (rational basis) for the decision.
  2. The decision-maker was not authorised by legislation to act or take the decision.
  3. The person who took the decision or action applied the law incorrectly.
  4. The person who took the action did not apply his/her mind to the issue.

What can you do?

If a decision goes against you and you believe there are grounds for getting it set aside, you can request that the particular department provide reasons for the decision. The request should be submitted in writing and within 90 days of the decision or action. If you don’t agree with the reasons, you can request an internal appeal or review. This step must be taken before you can approach a court for review. Government departments will usually have their own internal review or appeal process, which they should inform you about. If you’re still not happy, you can consider an application to court for review. Going to court is expensive, so obtain legal advice on all the available options.

Reference:

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) Department of Justice and Constitutional Development. Accessed: http://www.justice.gov.za/paja. 09/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Managing the administration of a deceased relative’s estate

The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death, to ensure that the process is properly managed. This is particularly important if it is a large estate, the assets are varied and there are potential family disputes.

Finding the Will

The first thing to do is to find the Will. If the Will cannot be found among the papers of the deceased, places to call include the deceased’s life insurance company, bank or attorney.

Who is the executor?

An executor is the person appointed to handle the process of settling the estate. The executor will either be nominated in the Will or nominated by the beneficiaries, if there is no nomination in the Will or no Will can be found. The executor is appointed by the Master of the High Court after, inter alia, taking such nominations into consideration. The Master will ultimately decide who will be the executor. If the chosen executor is unfamiliar with the legal procedure, he or she can approach an attorney for help. Once the executor has been determined, the Master will issue a “Letter of Executorship”, which gives the authority to administer the estate.

What must the executor do?

The executor’s responsibilities include:

  • arranging for valuation of the assets of the estate.
  • contacting and dealing with all the beneficiaries.
  • arranging provisional payments for the family’s immediate needs.
  • opening a bank account for the estate and depositing the estates money in it.
  • paying all the necessary estate duties.

The executor needs the Letter of Executorship to carry out these duties.

Eventually, the executor will prepare a liquidation and distribution account, setting out all assets, and debts, and how the assets will be distributed to beneficiaries.  This account must be delivered to the Master, who will check that the executor’s actions reflect the ill of the deceased and that all legal requirements have been fulfilled.

Important things to keep in mind

Whenever any person dies inside or outside the Republic of South Africa leaving any property or a Will, then the death of such a person must be reported to the Master of the High Court by completing a prescribed Death Notice form.

References

The Department of Justice and Constitutional Development: “Reporting the estate of the deceased”. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016.

Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)