By Prof. Graham Paddock
It is important for scheme residents who live in close quarters to strike a balance between their rights to enjoy their private spaces and the need to maintain a harmonious living environment for all. However, when this balance cannot be achieved it is important that the parties prepare properly to bring or defend an application to the Community Schemes Ombud Service.
In a sectional title scheme, residents often live in close proximity to each other, which can sometimes lead to disputes over different lifestyles and the extent to which one’s actions impact their neighbours. This article explores a conflict between two residents in such a scheme and aims to assess the validity of the positions taken and arguments advanced by both parties.
The dispute in question involves a retired woman of 70 years of age, who sometimes has difficulty sleeping. She goes to bed at 21h00 each evening and tries to sleep until 07h00 the next morning. Her next door neighbour is a man of 35 years of age who frequently hosts friends in his flat and on his open balcony. The man’s social activities, often with between five and ten other young people, include playing loud music, drinking alcohol, and smoking cannabis. The retired woman considers these activities to be a nuisance, as she believes the noise and the smoke she can hear and smell in her section exceed what she could reasonably be expected to accept or tolerate.
The man’s argument is that his and his guests’ behaviour is not unlawful. He maintains that by choosing to live in a sectional title scheme, the woman has impliedly agreed to tolerate a higher level of interference resulting from the use of neighbouring apartments. He cites the constitutional court’s ruling in Minister of Justice v Prince  ZACC 30, which allows adults to use, possess, and cultivate cannabis in private, and suggests that the retired woman is more sensitive to noise than “a normal person of sound and liberal tastes and habits” and therefore, in terms of the court ruling in Prinsloo v Shaw 1938 (AD) 570 at 575, the parties and behaviour she has complained of are not a nuisance as that term is defined in South African law.
The woman’s contrary argument is that the man and his friends are exercising their private residential rights to an extent that she, as a directly affected neighbour, cannot be expected to tolerate. She adds that this is not a subjective test based on her particular sensitivities, but an objective one based on whether the normal member of the community at large living in similar accommodation would consider the behaviour an intolerable nuisance.
Assessment of Positions and Arguments
The woman’s position is based on her subjective experience of the noise and smoke, which she believes exceed a reasonable level of tolerance. However, her argument that the community at large should determine what constitutes an intolerable nuisance aims to shift the focus from her personal sensitivities to a more objective measure. This perspective acknowledges that while living in a sectional title scheme comes with inherent proximity to neighbours, there should still be a reasonable limit to the disturbances one must endure.
The man’s position relies on the legal argument that his actions are not unlawful, given the court rulings he cites. However, the legality of his actions does not necessarily guarantee that his behaviour is not causing a nuisance to his neighbours. The fact that the woman has chosen to live in a sectional title scheme does not imply that she should be expected to tolerate excessive noise or smoke from neighbouring apartments.
In such cases, it might be beneficial for both parties to seek a resolution through dialogue, compromise, or trustee mediation in order to maintain a peaceful living environment. However, if none of these achieve a mutually satisfactory resolution, the matter must be referred to the Community Schemes Ombud Service (CSOS).
While both parties may present valid arguments, the crux of the matter lies in determining what constitutes a reasonable level of interference that can be tolerated between neighbours within a sectional title scheme. While the man may not be acting unlawfully, his actions could be considered a nuisance by the community at large.
The woman’s position, which aims to apply an objective test based on the community’s standards, appears to be a more appropriate approach for addressing the issue. However, her position depends on her being able to show evidence of the loudness, frequency and duration of the noise and smoke that will convince an adjudicator acting in terms of the Community Schemes Ombud Service Act of 2011 to order the man to stop causing a nuisance. Finally, it is vital that the woman ask the CSOS for a specific order against the man requiring him to act, or refrain from acting, in a specified way so that the adjudicator’s order can, if necessary, be made an order of the High Court court and enforced using its mechanisms.
Article reference: Paddocks Press: Volume 18, Issue 3.
Graham Paddock is a specialist community schemes attorney, notary and conveyancer. He has been advising clients and teaching students for over 40 years, and was an adjunct professor at UCT for 10 years.
This article is published under the Creative Commons Attribution license.