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May 04, 2018

Boundary Walls – problems with your neighbour?

Disputes surrounding boundary walls in residential and commercial areas are one of the most controversial topics facing homeowners. These relate to the location of the boundary between the two properties, or when trees or plants encroach on or overhang the other property, or when the wall (or work done on it) causes a nuisance or a threat to the neighbouring land, or when the wall diverts the natural flow of water or obstructs the neighbour’s view or access to light.
A boundary wall is generally defined as “any wall erected on, above or over the physical boundary between two properties, so that they stand on or occupy space at least partially on both properties”.

If you decide to build a wall or erect a fence on the boundary, you may do so provided it is on your property. And this includes the foundations which, of course, will be wider and longer than the wall itself. The structure will then belong to you. 

Usually, however, neighbours agree to share the costs of boundary walls, in which case ownership is also shared. In the absence of proof that a boundary wall is wholly on one or other property, ownership is usually presumed to be shared. Some local authorities state that each side is then owned by the property owner on each side; others say that the wall is owned jointly. If ownership is shared, either way, neither owner may do anything to the wall – i.e. they may not raise it, lower it or break it down – without the other neighbour’s permission. 
If the structure is damaged in any way, both must share the cost of repair. Both neighbours are obliged to contribute to reasonable and necessary costs of repairs or maintenance of the wall. If the wall is damaged by natural forces such as wind or fire, either neighbour can repair or restore it, and the other party is obliged to make a reasonable contribution to the cost of repairs or replacement of damaged or destroyed party walls, if it benefits her as well. She won’t have to contribute if her neighbour decides to replace the existing wall with a better or more expensive one. Obviously, one neighbour cannot do anything that may affect or compromise the overall stability of the wall.

Municipalities require that:
• Solid boundary walls may not be any higher than 1.8 m on street boundaries, and no higher than 2,1 m on lateral boundaries.
• Palisade-type fences may not be higher than 2.1 m on either street or lateral boundaries.
• Fences may not be higher than 2,1 m on street boundaries.

April 24, 2018

Are barking dogs driving you mad?

The sensible thing to do is to chat to your neighbour, over a cup of tea, and explain that the dog is preventing your baby from sleeping (or whatever) and ask him or her to do the neighbourly thing. One solution (if the neighbour works all day and the dog is bored or afraid) is to fit a cold air spray bark collar. All vets sell these devices and they are not at all cruel. Perhaps the dog needs to see an animal behaviourist? He or she will see why the dog barks excessively (lack of exercise, lack of stimulation, separation anxiety, protecting territory, etc.) and recommend a solution.

If that does not help or if the neighbour is indifferent or defensive (and refuses to make the nuisance go away) you should report the matter to the authorities (the local authority and, perhaps the SPCA) and, that failing, contact your lawyer, who will have to send a threatening letter or even go to court for an interdict.

Disciplinary procedures vary from district to district. If you go the reporting or legal route, you will start a feud, so, wherever possible, try and settle matters amicably.
In Johannesburg, Section 5(a) of the City of Johannesburg Metropolitan Municipality’s by-laws relating to dogs and cats (Prohibitions relating to the keeping of dogs) provides that no person may keep a dog which barks, whimpers or howls to such an extent that it, or has another habit which, causes a disturbance or nuisance to inhabitants of the neighbourhood.

Call 011 375 5911 and log a call of “disturbance of the peace”.  The authorities will satisfy themselves that the barking is indeed intolerable and issue a warning notice to the dog’s owner to cease and desist (requiring the discontinuance of such offence). Failure to comply could result in the dog being impounded.

The SA Noise Control Regulations provide that 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;

·         operate or play, or allow to be operated or played, a radio, television set, drums, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound so as to cause a noise nuisance; 
·         offer any article for sale by shouting, ringing a bell or making other sounds or by allowing shouting, the ringing of a bell or the making of other sounds in a manner which may cause a noise nuisance; 
·         allow an animal owned or controlled by him or her to cause a noise nuisance.

If a noise emanating from a building, premises, etc., is a disturbing noise or noise nuisance, the authorities may instruct in writing the person causing such noise to discontinue or cause to be discontinued such noise within a period stipulated in the instruction. Failing response (in the case of e.g. power tools, musical instruments or animal) the instrument, equipment or animal can be confiscated, or impounded.
Any person who contravenes or fails to comply with a written notice shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment. In the case of confiscated items, the court may declare any vehicle, power tool, musical instrument or equipment, or animal forfeit to the local authority.

April 21, 2018

Can an unmarried mom claim maintenance from the father’s pension?

A client asked:
I would like some advice please. My partner and I were living together for 5 to 6 years then broke up in February 2018 because he was cheating on me. We have 2 children together which he paid R1000 Maintenance for a month. Last week he let me know that he lost his job and I would like to know how can I get some of his Provident fund money to go to my kids? Even if it’s invested into an Educational Fund that will be fine.
The one problem is we were not married...what are my rights as a mother?

Unfortunately, as you were never married, there has not been a dissolution of the marriage so there is no automatic claim on his pension fund. However, you can obtain a maintenance order for the children. The court will consider the needs of the child and the father’s ability to contribute. Once you have this order you can attach his provident fund benefits to cover area and (possibly) future maintenance.

The Maintenance Act and the Pension Funds Act give a retirement fund the right to withhold or deduct amounts from pension benefits to pay maintenance to a child, and this grants you a mechanism to apply to court to enforce a maintenance order. 

The fund cannot make any deductions for outstanding maintenance payments until the husband’s benefit in the fund accrues. As he has lost his job, the fund will pay out a retirement or withdrawal benefit. Once the retirement benefit has been paid to the member, the benefit is no longer in the hands of the pension fund and you cannot attach the benefit. Therefore, if you know that a defaulting parent is, for example, going to leave his fund, you should ask the fund to withhold his or her benefit while you finalise a claim for arrear maintenance.

In Mngadi v Beacon Sweets and Chocolates Provident Fund, the father was a member of the Beacon Sweets and Chocolates Provident Fund. He had resigned to avoid paying maintenance and planned to withdraw his benefit, the court heard. The court ruled the fund could be interdicted from paying the benefit to the member for as long as the member was liable for maintenance, and it ordered the fund to deduct from the benefit the maintenance due each month.

The court said that once the maintenance was no longer due – for example, when the children reached the age of majority – the member could be paid the remaining benefit.

March 14, 2018

CCTV cameras at home and the right to privacy

A client asked: What is the law on CCTV installation on a private property in relation to privacy and the law? I have a situation where a camera has been set such that 85% of what is being captured is in my yard.
Privacy issues

You have the right to protect your property and this can be done by using a CCTV system where it is necessary, such as a security measure. However, out of respect for your neighbour, CCTV systems should be used in a responsible way to respect the privacy of others.

The problem arises when you cross the line between monitoring your own property and somebody else’s. If your camera is angled in such a way that it includes coverage of your neighbour’s yard or driveway, then complaints about invasion of privacy will follow.

CCTV monitoring is acceptable and even welcomed in public places, but it is unreasonable to be spied on in your own private property. 

The law

The complaints about invasion of privacy are not specifically protected in law. Our constitution gives a citizen the broad right to privacy. However, there is nothing illegal, per se, about home surveillance in South Africa.
South Africa’s Protection of Personal Information Act which seeks to regulate the Processing of Personal Information, does not apply to purely household or personal activity.
Clearly, the common law would protect you, regarding your neighbour’s CCTV cameras, when:
·         The surveillance is of a criminal or voyeuristic nature;
·         The area being monitored is one where someone would reasonably expect to have privacy, such as a bedroom or bathroom;
·         The surveillance is of such intensity that it is creating a nuisance, preventing someone from the enjoyment of their property;
·         The installation of the cameras is the result of a neighbourhood dispute involving threatening behaviour, in which case an apprehended violence order may call for the cameras to be removed.
The solution
Use some basic common sense to avoid alienating your neighbours and possibly being taken to court.
When you install CCTV cameras, make sure that:
·         You are transparent to those around you when installing your CCTV system, by informing your neighbour(s) about your system;
·         They are only monitoring your property;
·         If your camera is pointing directly at a neighbour’s property, you should take steps to reposition it to avoid complaints or in some cases accusations of violation of privacy or harassment;
·         If they are overlooking the street, there is a sign informing people they are being monitored;
·         They are not monitoring areas where people could reasonably expect privacy;
·         The stored information is not used for any other purpose than protecting your property;
·         If you record images, regularly delete the recordings and do not keep them for longer than is necessary for the protection of your property;
·         If your system captures information of an incident, retain that information as it could be use by the police to aid an investigation.

February 18, 2018

Social Media and the Law

Social media platforms such as Facebook, Twitter and YouTube have become an integral part of our everyday lives and have an important role to play in our social environment and help us keep in touch with others and stay informed of events around the world. Yet despite many of the benefits of social media platforms, these platforms also create opportunity for abuse and often bring out the worst in people, often without thought as to the consequences of their action.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.

Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation.
Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him in a Facebook post.

In another case a woman was awarded R 40,000 in damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook. The judge found that although the former husband was not the author of the postings, he was tagged in and knew about them and allowed his name to be coupled with that of his new wife thus creating liability jointly with the author of the postings.

Hate Speech
Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heels of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) has dealt with several of these cases where the dismissal was found to be fair based on the evidence garnered from the social media sites.

Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticising management, criticising the employer, employees using social media to convey internal matters of the business to former employees, etc.

Take note
What should you take note of when using social media to avoid legal or disciplinary action arising from your conduct on these social platforms?
  • The most common defence against defamation is that the publication was true and in the public interest. Make sure about your facts before posting anything and ensure that you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.
  • Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
  • Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
  • Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:
    • Keep posts legal, ethical and respectful.
    • Do not engage in online activities which could harm the reputation of the company.
    • Do not disclose any confidential or business information of the company.
    • Do not discuss colleagues, managers or information pertaining to the company.
A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn’t consider posting it on social media.