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 Home Owners Association.

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 had put up with the barking for some time, but they eventually met with the Lazanakis couple (respondents) – the owners of the barking dogs – to try and find a solution. Before the meeting, the Bhanas 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 several 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 incessantly. They, however, fear that the barking may once again flare up at any stage and question 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 has complained.

The adjudicator issued a caveat to the respondents and said they have undoubtedly taken valuable and effective steps in preventing their dogs from causing an ongoing nuisance to their neighbours, but they have an additional obligation to ensure that their dogs do not continue to cause their neighbours any form of unreasonable noise nuisance.

She strongly advised them to continue to use the vibrating dog collars to control unnecessary barking. As a matter of urgency, the dog owners should consult with an animal behaviourist to modify the dogs’ behaviour and control their obvious stress and anxiety.

“The fact that I have not found in the applicant’s favour in this adjudication order does not guarantee a similar finding in future if their dogs’ behaviour regresses in any way, or if they do not take proactive steps to assist themselves or their neighbours by consulting with an animal behaviourist on how to assist their dogs,” the adjudicator said.

She added that their dogs’ future well-being is in their hands, and they owe it to their neighbours, their children, and their dogs to ensure that they all live peacefully and happily going into the future.

zelda.venter@inl.co.za

Source link