HOW MUCH “WOOF” AND HOW MUCH “CLUCK” IS TOO MUCH “WOOF” AND TOO MUCH “CLUCK”? NAVIGATING BY-LAWS

Setting the scene: A land owner/land user, let us call him “X”, operates a backyard breeding facility (“the facility”) for cats and other exotic animals such parrots, fowls and chickens from within an estate, which estate borders other estates, and is located in a high density urban area.

X’s neighbours have, for several months tolerated, begrudgingly, the going-ons at the facility, however, the noises which come from the facility have gotten to a level that X’s neighbours can no longer tolerate it, and are seeking some form of relief.

“Good fences make good neighbors” is a passage out of Robert Frost’s 1914 poem “Mending Wall”, which passage has stuck with the writer for some years; and in today’s fast paced life more and more people are buying into complexes, estates or gated communities as it comes with the added peace of mind of security, a safe environment for kids to play, and financial security that homeowners in a few years’ time may see a return on their investment due to the high demand of “complex living”.

With more and more people living in such close proximity to each other, tolerance is at an all-time high, and the truth of it is, most neighbours put up with behaviour they would not normally tolerate because it is the “neighbourly” thing to do.

So, how much tolerance is too much tolerance, and once you have reached your wits end, what can you do to enforce your rights in an objective and constructive manner?

All too often we (attorneys) when advising in respect of neighbour disputes see first-hand how emotion and subjectivity clouds objectivity, and understandably so, as in most instances where neighbours are at odds with each other, the built up tolerance can only last so long before it boils over, and the slightest infraction from a disruptive, and often inconsiderate neighbour culminates in a situation where, irrespective of whether or not you have a “good fence”, your neighbour is not a “good neighbour”, and tensions rise.

Most often, neighbour disputes revolve around one neighbour being inconsiderate toward his/her fellow neighbours, resulting in what the law has neatly termed a “nuisance”, and in most cases it generally involves to some varying degree animals who are creating the nuisance at the behest of their owners, similarly to the scenario set out at the start of this article, which is an all too often occurrence.

Nuisance is a common law concept, which means it is not codified law i.e. found in legislation, and the courts have thus, over time had to develop the common law to align it with the inter alia, the Constitution, as well as other legislation found on the statute book, which has in turn resulted in a comprehensive set of By-laws having been enacted, thereby, in theory, making it easier for the man on the street to enforce his/her rights when having to confront a neighbour on a nuisance issue without needing to first  consult an attorney.

So, from a practical perspective how easy is it to enforce the By-laws?

Well, firstly, you need to identify the By-law which regulates the particular nuisance which you, as a neighbour or land owner are experiencing. The phrase, “Google is your friend” should come to mind. A simple Google search should take you to the necessary web-page, which should, in a perfect world give you the answer you are looking for. No! Sadly, as the writer experienced, Google is not always your friend, and it took some concise search terms and phrases to eventually locate the web-page which deals with the By-laws regulating, for example the keeping of dogs and cats in the Johannesburg area.

Unfortunately, simply locating the relevant By-law does not immediately solve your problem. Once you have gone through the By-laws regulating the keeping of dogs and cats it will become apparent that the By-laws are not exactly “user friendly”, as the sections are intertwined, and often make reference  to definitions in other By-laws which makes interpretation, and enforcement problematic.

Before getting caught up in how cumbersome the By-laws regulating dogs and cats are to use, we should be reminded that this article is not about the By-laws, but about the nuisance, and being able to enforce your rights as a land owner/land user against the world.

So, returning to the crux of the article, and the scenario set out above, what can X’s neighbours do to enforce their right of reasonable, undisturbed use and enjoyment of their land?

According to the By-laws regulating dogs and cats, Chapter 1 defines a cattery as a premises in or upon which:-

  • Boarding facilities for cats are provided, or
  • Cats are bred for commercial purposes

Chapter 3 of the said By-law states that no person may keep more than 2 (two) cats, or allow more than 2 (two) cats over the age 6 (six) months to be kept in or at a dwelling unit. In an instance where more than 2 (two) cats are kept at a dwelling unit for the purposes of commercial breeding, such as in the above scenario, then the individual wishing to breed at the dwelling unit is required to apply to the Council (Metropolitan City of Johannesburg) for a permit, and such application must have been done in accordance with the provisions of the By-law.

As a point of departure, it is apparent that X is most likely breaching the 2 (two) cat provision, and would need to have applied to the Council for a breeding permit, however, the By-laws regulating the keeping of dogs and cats does not specifically aid the neighbours in addressing the issue of noise as it merely deals with the number of cats one property may have.

With that being said, and as mentioned above, the By-laws regulating the keeping of dogs and cats is a cumbersome piece of legislation which is intertwined with other pieces of legislation; one of those being, the Gauteng Noise Regulation “the Regulation”.

The Regulation states that no person shall make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof.

In order for the neighbours to effectively enforce their rights, the Regulation ought to be read together with  the By-laws regulating the keeping of dogs and cats, which, unfortunately for the man of the street, who when embarking down this road did not initially want to consult an attorney, makes this process complicated, time consuming and impractical.

In conclusion, these specific By-laws and Regulations have been enacted to aid the man on the street in enforcing his/her every day rights, however, as to whether X’s neighbours will from a practical perspective fully enforce their rights due to the cumbersome By-laws in place without needing to engage an attorney is uncertain.

So to answer the question in the title of this article, “How much woof and how much cluck is too much woof and too much cluck?” is subjective, and all too often, an objective solution to a subjective test results in a roller coaster ride for all those involved, but there is still nevertheless a solution to the nuisance problem.

Please note that this article does not in any way constitute legal advice, and should your neighbourly dispute require legal intervention, it is recommended that you seek legal advice from a legal practitioner.

For ease of reference, and should you as a reader of this article be experiencing a dog and/or cat related nuisance, please click on the hyperlinks below to save you trouble of having to experience the pains of googling the relevant By-laws and Regulations:

https://openbylaws.org.za/za-jhb/act/by-law/2006/dogs-and-cats/eng/.

https://archive.opengazettes.org.za/archive/ZA-GT/1999/provincial-gazette-ZA-GT-vol-5-no-75-dated-1999-08-20.pdf

Marcel Weygertze – Attorney
marcel@rademeyer.co.za

Kim Rademeyer – Partner
kim@rademeyer.co.za