Monthly Archives: August 2016

My neighbour’s noise is a nuisance

So it’s the third night this week you can’t sleep because your new neighbour seems to enjoy playing loud rock music with his band late at night. Normally you wouldn’t mind. However, being kept up till 2am every morning is affecting your productivity at work. You talk with your neighbour, but he doesn’t seem to see a problem. What now?

If a neighbour has a birthday party or is celebrating the festive season, then their behaviour would be considered reasonable. However, if the behaviour of a neighbour has become disruptive or abnormal 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 clearly 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 ability 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.

However, before you run off to sue your neighbour it must first be considered whether or not the noise they are producing is reasonable or unreasonable. If you live in a congested city, for instance, noise pollution is common, but a residential area is expected to be quieter.

What makes your neighbour a nuisance?

There are several factors that determine if a neighbour is a “nuisance”. Some of them include:

  1. Excessive loud noise.
  2. Bad odours.
  3. Constant movement of inhabitants.
  4. Smoke, gas or fumes.

However, as mentioned earlier, it’s important to recognise the circumstance of the noise or disruption. Living in a residential area with rowdy neighbours hosting consistently late parties could be considered a nuisance. When judging the actions of your neighbour you should consider the following:

  1. Whether it is temporary or over a long period.
  2. Where the property is situated.

If it’s the festive season, then a lot of festive music and many guests is considered normal. In circumstances such as that it may just be better for you to let it go and wait for the festive season to pass. Being overly sensitive and irritable is not a reason to sue someone.

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. Matters that can’t be resolved peacefully can be brought to a court and an interdict can be obtained against the neighbour. Legal advice is always beneficial when pursuing legal action so as to determine whether your complaint is valid or whether you’re just too sensitive.

An interdict is a court order that will command the neighbour to stop doing whatever is the cause of the nuisance. The nuisance causing neighbour can also be sued for any damages caused from the nuisance, such as broken property or health problems.

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)

How can I lawfully evict my tenant?

A3_bYou’ve discovered that the tenant renting your apartment has damaged several appliances, including the floor tiles due to irresponsible behaviour. Therefore, you have decided to terminate the lease contract and evict the tenant. Are you allowed to do that and how do you get started?

Firstly, there has to be valid reasons to evict a tenant, such as the example above. Even if you do have a valid reason to pursue eviction, a legal process has to be followed if you want to stay within the law. The first step is to cancel the lease contract with the tenant and let the tenant know that it’s cancelled and the reasons why. After the contract is terminated, the tenant would be occupying the premises illegally. You can then go to a court with an eviction application or “ejectment order”. When you do this you will be required to prove that the contract with the tenant was properly terminated and that the reasons for doing so were valid.

It’s important to make sure the reasons you want to evict the tenant are valid. This is because tenants are protected by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998. You cannot just evict a tenant because you don’t like them.

Other grounds for an eviction

Besides a tenant causing serious damage to a property there are two other grounds for an eviction. The obvious one is the tenant not paying his/her rent after having been told to do so. Another reason is the tenant using the property for anything other than was agreed upon in the contract. A tenant who opens a business in the apartment they are renting would be in breach of their contract if it was agreed to be rented for residential purposes only.

What happens at the court?

The eviction application can be taken to the Magistrate’s Court or the High Court. Court proceedings will follow, which the tenant should be notified about. It’s very likely that the tenant will deny any wrongdoing and say the eviction doesn’t have good grounds. If this is the case, they can inform the court. A dispute and court case may ensue, the outcome of which would depend on the evidence of what happened. Therefore, if you are considering evicting a tenant, make sure your reasons are clear and that there is evidence for the eviction. If the tenant broke property on your premises because of being irresponsible, then that could be solid evidence.

Dealing with the tenant

The tenant may agree that they have done something wrong or simply decided not to oppose the eviction, in which case the court would issue an ejectment order. The ejectment order will force the tenant to leave the property, which will be carried out by the Sheriff of the Court. It’s important to remember that the landlord is not allowed to personally remove tenants from their premises. Leave that to the authorities. Furthermore, the court may order the tenant to pay the legal costs of the landlord.

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)

Protection order

A2_bIn this article, we will deal with the manner in which to obtain a protection order, the possible reasons for obtaining such an order, and the consequences of disobeying the order.

A protection order is described as being a form of a court order that requires a party to do, or to refrain from doing, certain acts. These orders flow from the court’s injunction power to grant equitable remedies, and can deal with the following:

  • That someone should not commit any act of domestic abuse.
  • That someone should pay you rent, mortgage, or other monies, such as child support.
  • That someone should hand over firearms or dangerous weapons to the police.

If you feel that you need to protect yourself by applying for a protection order, you must apply to a court which has jurisdiction over the area where you are residing. It is also important to first phone a court and make sure on which days you can apply for a protection order, since many courts only have certain days on which they deal with the application for protection orders, unless the protection order is a matter of urgency and you feel that your life might be at risk.

Before obtaining a final protection order, you need to apply for an interim protection order. To do this, you need to apply at the court. The interim order specifies the date on which the final order will be considered. Once the final order is made, it is permanent and can only be changed by making an application to do so at the court at which it was granted. Once an interim order is granted a copy of the order must be served on the Defendant by either the police or a sheriff of the court. The Defendant then has the opportunity to defend the matter on the return date and the Magistrate has the discretion to either make it a final protection order or not.

Requesting a protection order does not mean that you are laying a charge against your abuser. You do not need to lay a criminal charge in order to obtain a protection order. However, if you are a victim of a type of domestic abuse that is also a crime, you can apply for a protection order, lay a criminal charge, or both. Some examples of abuse that are also crimes include common assault, rape, incest, attempted murder and the abuse of animals.

If your abuser breaches or breaks the conditions of the protective order, he has committed a crime, being in contempt of court. This applies even if the breach is not an actual crime, such as controlling behaviour. If the breach itself involves a crime, such as assault, then the abuser can be charged with both contempt of court and assault. If your abuser, or the person that you have the protection order against, breaches the terms of the order you should phone the police as a matter of urgency. The police will then proceed to arrest him/her.

It is important to take note that as soon as a Magistrate grants an interim protection order, the docket number will be placed in your identity document to ensure that the police are aware of this, if matters turn for the worse. It is also important that you go back to court on the return date, because if you don’t, the Magistrate will remove the interim order and the matter will be struck off the roll.

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)

Private defence of property

The common law provides that an owner may protect his property from harm or damage even though there might not be any physical risk of harm to the owner himself.

A person may use force in order to protect property and his or her rights therein. Private defence of property can only be resorted to if there is serious danger to the property or the owner’s rights therein. The danger must involve risk of loss, damage or destruction of the asset. The question is whether there were reasonable grounds for the defender to think that because of the offender’s unlawful conduct the danger existed.

There must be evidence that the property, movable or immovable, was in danger of unlawful damage and destruction at the moment action was taken. Unlike self-defence the danger need not necessarily have commenced or be imminent. Thus, private defence of property by means of protective devices is permitted in response to merely anticipated danger.

In order for a situation of private defence to arise, there must be evidence that:

  • action was necessary to avert danger;
  • the defence was a reasonable response;
  • the defence was directed against the attacker;
  • the attack was unlawful.

The measures taken to protect the defender’s proprietary interests must have been the only means whereby he could avoid danger. The rule regarding retreating has no application in the defence of property. One is not expected to abandon one’s property. Likewise, the inhabitants of dwellings are not expected to flee from homes, rather than resist the intrusion of a burglar.

The test is whether the means of defending the property were reasonable by having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, and the time and place of the occurrence. The value of the property seems an important factor in determining the reasonableness of the defence.

In Ex parte Minister of Justice: In re S v Van Wyk the Court decided that killing in defence of property can be justified in circumstances where no other less dangerous or effective method is available to protect property.

In Ex Parte Minister of Safety and Security: In re S v Walters  2002 (CC), Judge Kriegler stated that while it was unnecessary to say whether our law allows for killing in defence of property, what is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer. These interests must now be weighed in the light of the Constitution. Judge Kriegler said that surely in Constitutional terms, the value of a life must be prized above the value of property.

The decision in Van Wyk is ripe for reconsideration by the Constitutional Court. Arguably the best route they could take is to draw a distinction between an excuse and a ground of justification. They could say that killing in defence of property is unlawful or wrongful, but in exceptional circumstances could be excusable if a reasonable person would have done the same thing.

It could therefore be argued that a deadly attack in defence of property would only be regarded as justifiable in extreme circumstances.

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)