Even though everyone wishes for a peaceful and tranquil community and neighbourhood, this is not always the case as you (unfortunately) cannot choose your neighbours. Which begs the question: What legal rights do I have if my neighbour’s pets are causing a nuisance and noise which cannot be overlooked? The barking of dogs is a noise nuisance which is a subjective measure and is defined as a noise that disturbs or impairs or may disturb or impair the convenience or peace of any person.^[1]

The first step towards any problem with a neighbour is to approach them directly and to try and resolve the matter amicably, but what if this is not possible due to the neighbours hardly ever being home and therefore being unaware of the extent of the animal’s barking, howling or annoying noise? Luckily, if no compromise or agreement can be reached, further legal remedies are at your disposal.

Despite certain Body Corporates and Home Owners Associations making provision for rules and regulations on pets being kept on the properties, the following is also applicable:

a) The Environmental Conservation Act^[2] and the National Noise Control Regulations does provide guidance in these types of situations but is practically implemented at a local authority level. In Gauteng the by-laws make provision for the prohibition of noise disturbance and noise nuisance. Section 29 of the City of Tshwane Metropolitan Municipal by-laws (hereafter referred to as “the by-laws”) specifically deals with the nuisance caused by dogs.

b) Section 29(1)(a) of the by-laws confirm that no person may keep a dog if the dog creates a disturbance or a nuisance by constantly or excessively barking, howling or whirling.^[3]

c) Section 5(d) of the by-laws specify that no owner is entitled to keep more than 3 dogs or 3 cats older than 6 months on a premise zoned for special residential purposes.^[4]

The by-laws are provided but the difficulty is to implement and enforce these by-laws.

Which begs the question: How do you implement and enforce these by-laws?

1. If a situation cannot be resolved amicably, the by-laws provide for the submission of a complaint with the Municipality by calling 012 358 4656, alternatively email the complaint to: bylawenforcementcenter@tshwane.gov.za or bec@tshwane.gov.za;^[5] where after the Municipality will send an Environmental Health Practitioner who will subsequently investigate the matter. If he/she is of the opinion that the dog is causing a nuisance as defined in the by-laws, he/she may order the owner, in writing, to remove the dog from the place where the dog is being kept.

2. According to Section 32 of the by-laws, the Health Practitioner may order the impounding of any animal that is being kept in contravention of any part of the by-laws. A neighbour who contravenes or fails to comply with the Environmental Conservation Act and the National Noise Control Regulations can face penalties not exceeding R20 000.00 or imprisonment of a period not exceeding 2 years.^[6]

3. Alternatively, if the Municipality do not investigate or provide a finding, or the neighbours persist with the noise nuisance, the complainant can approach a court of law for further relief. If the persistence of the noise is considered unlawful or threatens to be unlawful, an application for an interdict can be made, preventing the neighbour from further causing or allowing such a nuisance. This will need to be considered by the courts by taking into account every situation and the facts and circumstances surrounding it.

Although the law makes provision for an owner to protect his/her right to the undisturbed use and enjoyment of his/her property, an owner must be cautious of bringing excessive applications to our already crowded courts. The courts will consider each case on its own merits, to determine whether a reasonable person would consider the nuisance to be unlawful. If the court is of the opinion that the situation could have been resolved amicably or with alternative measures, the complainant can find himself/herself incurring unnecessary costs.