The occasional barking of a dog, which is merely annoying or inconvenient, is not enough to establish a legal nuisance. The law does not expect silence; it expects reasonableness, and not every noise is actionable in law.
This was part of a recent finding by the Community Schemes Ombud Service (CSOS), which took a closer look at a noise disturbance complaint by a couple living in an upmarket Johannesburg sectional title complex.
They said that they had to endure the insistent barking of two dogs belonging to a family in the same complex for more than a year. The couple said they now had enough, and the dogs must go.
The Bhana couple said they have put up with the barking for some time, but they eventually met with the Lazanakis coup\le (respondents) – the owners of the barking dogs – to try and find a solution. Prior to the meeting, the Bhana’s sent an audio clip to the dog owners as evidence of how the dogs were barking.
At the meeting, various strategies were discussed to address the dog issue, and it was agreed to give the respondents a grace period in which to address and hopefully resolve the dog problem.
But, the Bhana couple said, the barking continued, and the body corporate of the complex sent the Lazanakis couple warning letters as well as a number of fines. They eventually complained to the CSOS.
In explaining their situation with the dogs, the Lazanakis couple told CSOS adjudicator Karen Bleijs that they struggled to find the dogs’ trigger points. They eventually managed to get the right formula for removing the stress from the dogs.
As far as the Lazanakis couple is concerned, the dogs, for quite a while now, no longer bark as much as before. They said the dogs obviously bark when the family gets home or when people walk past, but they no longer bark incessantly.
The applicants disagree and contend that the dogs have continued to bark, although not longer incessantly. They, however, fear that the barking may once again flare up at any stage and questioned whether they were required to once again approach the CSOS. They said that they had demonstrated all the required neighbourly tolerance from living in an estate.
The dog owners, meanwhile, fitted anti-bark collars to the dogs and took other measures, which have made a huge difference, it was said.
Bleijs looked at relevant case law, wherein one matter a judge remarked that in South African neighbour law, neighbours are expected to tolerate a reasonable level of interference, but when the use of land affects neighbours in ways that exceed that level, it becomes unlawful and actionable nuisance.
Bleijs remarked that the audio-visual evidence presented by the applicants undoubtedly shows that the incidents of barking do constitute a nuisance. However, the barking only continues for a few minutes at a time, which does not sustain a complaint of “incessant barking.” She also noted that none of the other residents have complained.
Although Bleijs found the barking nuisance is not of such a serious nature that it exceeds the reasonable limits of tolerance, she did warn the respondents to ensure that their dogs toe the line.
