It’s the third night in a row that the pesky neighbours have been partying it up into the early hours of the morning. It may be the festive season, but with kids crying and dogs barking continuously for three nights, your cup of neighbourly patience has run out. Yet, when confronting these neighbours with a reasonable request of reducing their nightly disturbances, the laughter by your neighbour only adds to your growing anger and frustration at your impotence to stop the noise. But must I just accept my fate, sell my house and move, or can I legally address the cacophony?

Our courts have held that a resident in a town, and more particularly, a resident in a residential neighbourhood, is entitled to the ordinary comfort and convenience of his home, and if owing to the actions of his neighbour he is subjected to annoyance or inconvenience greater than that to which a  normal person must be expected to submit to in contact with his fellow-men, then he has a legal remedy to protect his rights.

The most common form of noise complained about in residential areas is called a noise nuisance. This is defined as any sound which disturbs or impairs the convenience or peace of person. The categories of noises and actions that fall within the ambit of the above can include amongst others:

• Playing loud music or a musical instrument or operating a television set loudly.
• Operating machinery or power tools that cause a noise nuisance.
• Shouting and talking loudly.
• Allowing an animal to become a noise nuisance.
• Testing or operating a vehicle that causes a noise nuisance.
• Driving a vehicle on a public road in a manner that causes a noise nuisance.

There are various remedies available. In order to show that a noise nuisance exists, a reasonable person must also find a certain noise intolerable or seriously effecting his enjoyment of his property. A person who is overly sensitive or irritable must accordingly be careful when considering taking action against his neighbour, as the action may not be successful if the reasonable person would not have been overly affected by the noise.

As with most legal matters it is sensible to exhaust all avenues to resolve a matter before a court is approached. The first option available is to lay a complaint with your local authority by way of a written statement. Many local authorities have Noise Control Units who have the power to take steps it may deem necessary to control situations regarding noise and associated complaints. Law enforcement officials will investigate the problem to see how serious the situation is. If necessary, they can instruct the reduction of the noise and if the offenders don’t comply, can issue a fine, and in extreme cases even confiscate the equipment.

If the above remedy fails and the offender persists with the noise, it is then possible to approach a court for relief. An affected party has two options in this regard:

• Apply for an interdict to prevent your neighbour from causing the specific noise.
• Sue your neighbour for damages suffered as a result of excessive noise caused by him.

An interdict can be granted if the neighbour’s conduct is unlawful or threatens to be unlawful. The factors that the courts generally take into account to determine if the actions are unlawful are:

• The type of noise.
• The degree of persistence.
• Where the noise occurs.
• The times when the noise is heard.
• Efforts made to resolve the matter.

There is no fixed standard to determine the unlawfulness of the action and every matter will be adjudicated on its own set of facts. If an interdict is granted and the neighbour still persists with the unlawful actions, the neighbour may be found guilty of contempt of court, in which case the court may impose a fine or imprisonment in serious cases.

An action for damages must be carefully approached as the success of the action will lie in what damages can be proven to have been caused by the noise. In an action where the neighbour is sued for damages, the following will generally have to be proven:

• The noise has negatively affected your quality of life.
• Your health.
• Your comfort.
• Your general well-being.

No matter what the type of nuisance, for it to be subject to interference and relief by courts or a local authority, it must be substantial and continuous and one must bear in mind that your neighbour enjoys the same rights as you do to enjoy the use of his property.