Noisy generators: What are your remedies?

It has appeared for a significant time that loadshedding is here to stay, at least for the considerable future. Continued utility supply has created many questions on various loadshedding legalities, including a landlord’s obligation to provide continued utility supply to a rental property (read our blogpost on this topic here). However, another legal question has arisen from the darkness of loadshedding!

One of the most widely used methods of continued utility supply is the use of a generator. As most people are aware, a generator can produce a lot of noise when in use. Whilst any person is entitled to use a generator to protect themselves from utility disconnection and the ongoing loadshedding crisis, the generator cannot be a nuisance to surrounding properties or people. Fortunately for South African citizens, every person is bound to the National Noise Control Regulations in terms of the Environment Conservation Act 73 of 1989 (hereafter the “Regulations”).

The general understanding across South Africa is that one is entitled to make noise until 22:00 on a weeknight and until 00:00 on a weekend, however this is not correct as each municipality will set respective by-laws that focus on the decibel output of the noise rather than the actual time frame in which a noise is made.

The difference between ‘disturbing noise’ and ‘noise nuisance’

The Regulations set out two important definitions that people must understand to determine if the noise that they are experiencing would be classified as a nuisance or not. The Regulations as well as the case of Laskey and Another v Showzone CC and Others (5988/06) [2006] define a ‘disturbing noise’ as a noise level that exceeds the ambient sound level measured continuously at the same measuring point by 7dba (the sound pressure level in decibels) or more. This case law goes further to explain that a disturbing noise is objective and is defined as a scientifically measurable noise level and generally compared to existing ambient noise levels whereas a ‘noise nuisance’ is a subjective measure and is defined as any noise that disturbs or impairs or may disturb or impair the convenience or peace of any person.

An example of ‘disturbing noise’ would be loud party music, where the SAPS can be contacted to deal with such complaints. Should such noise continue, then this would constitute a noise nuisance. Further examples of noise nuisances would be the continued playing of loud music, a loud television set, loud continued machinery or power tools or the continued loud barking of a pet.   

Whilst these definitions appear to be quite similar, we want to clarify the difference between the two being the consistency and repetitive nature of such noise will distinguish between a disturbing noise and noise nuisance.

Section 4 of the Regulations state the following:

“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.”

Regulation 5 goes further to state that no person shall:

“(a) operate or play a radio, television, drum, musical instrument, sound amplifier, loudspeaker 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;           …

(b) operate any machinery, saw, sander, drill, grinder, lawnmower, power garden tool or similar device or allow it to be operated, if it may cause a noise nuisance; …”

Clearly, from both Regulation 4 and 5, a person may not make, produce or cause a disturbing noise or a noise nuisance or use machinery that causes a noise nuisance and any person suffering from such noise issues does have legal remedies at their disposal. Generators would be included in the above definitions.

Legal remedies for ‘disturbing noise’ and ‘noise nuisance’

Disturbing noise:

In the event of a disturbing noise i.e., a loud party playing music till the late hours of the night, this is dealt by contacting the SAPS to respond to the noise complaints. The SAPS will approach the property in question to deal with the disturbing noise. However, a generator would fall under the definition of a noise nuisance and not a disturbing noise.

Noise nuisance:

Step 1: Approach your municipality

Should a noise nuisance impair or disturb your peace and convenience for a continuous period then you are entitled to approach the relevant municipality to lodge a complaint against your noisy neighbour. The complaint can be lodged directly with the municipality by means of a written statement detailing the noise nuisance and the relevant information pertaining to the offenders and the nuisance itself. The municipality will investigate the complaint and will accordingly make an order for the reduction of such noise, and should the offenders not comply with such order, the municipality can issue fines and even confiscate the machinery or equipment in question.

Step 2: Obtain an interdict against the offenders                                     

If the above remedy does not achieve its desired outcome, you are entitled to approach a court of law for relief. You will be required to institute legal action against the offenders for an interdict to cease the excessive noise. A damages claim may also be claimed if you have suffered any monetary damages as a result of the excessive noise. The courts will consider the following factors when granting an interdict:

• Type of excessive noise;
• The degree of persistence of the excessive noise in question;
• Where the excessive noise occurs from;
• What time the excessive noise occurs;
• Any resolutive methods that have been exhausted to resolve the excessive noise issue.

Should the interdict be granted against the offender and the offender persists with the excessive noise, then the offender may be found guilty of contempt of court, which is punishable by the court imposing a fine or imprisonment in serious cases.

Further to the above, in terms of Regulation 9 of the Regulations, any person who contravenes or fails to comply with Regulation 4 and 5 shall be guilty of an offence and will be liable on conviction to a fine not exceeding R20 00000 or imprisonment for a period not exceeding 2 (two) years or both a fine and imprisonment.

By Rowan Terry, Legal Counsel at TPN from MRI Software