Gareth had no idea how much his life would change when he bought his new home. As a law-abiding citizen he’d never had to deal with the police before, had never had to hire a lawyer and had never felt threatened.
All this changed within weeks of him moving into his new, three-bedroom Faerie Glen property.
“I’m a friendly guy and have always made a point of getting to know my neighbours,” he says. “Within a few days of the move I’d met and chatted to just about everyone living around me and actually commented to my wife how pleasant and helpful everyone seemed. My immediate, next-door neighbour had been on holiday when we first moved in and I was a little taken aback when, on meeting him for the first time, he complained that one of the trees between our two properties needed to be cut back as it was leaning into his property.
“In fact, the tree hadn’t grown over the fence at all, but I nevertheless pruned it on the ‘offending’ side. The neighbour popped his head over our wall two days later to complain about a bush, which he again said was growing over the wall. And again, although I couldn’t see a problem, I trimmed the plant in order to keep the peace.
“A week later we received a phone call from the same neighbour complaining about our cat wandering in his garden, the children making too much noise and the fact that our TV was too loud in the evenings. By this stage I was beginning to get annoyed, but obliged by having a chat to the kids and closing all the windows when we watched the TV in the evenings.
“The changes in our lifestyle appeared to make him happy and we heard nothing more until one Sunday morning when I was awoken by the sound of a chainsaw. It sounded very close so I got up to see who was chopping down what. I walked around the side of my house and saw my neighbour hacking at the tree he’d complained about when we first moved in. I shouted at him to stop and asked why he was tampering with a tree on my property. He swore at me and carried on with what he was doing. When I shouted that I was calling the police the chainsaw was turned off and the man went inside.
“From that point on, all hell broke loose. The abuse became so bad that I began keeping a diary. Things changed from day to day and he would go from shouting, screaming and swearing at the children when they played in the garden, to threatening to poison my cat and verbally abusing both my wife and I.
“I started to think that the man had some sort of mental illness and at that stage started chatting to other neighbours. It turned out that everyone in the street had had a run-in with him at some stage and the general consensus was to give him as wide a berth as possible.
“This was easier said than done because although by now we were virtually prisoners in our own home, he still managed to find something to complain about. Things started turning really nasty when he accused me of taking naked photos of his 86-year-old wife. The police were called and I was asked to make a statement. Although nothing came of it, it clearly showed me that the man was unstable.
“At this point I realised that something had to be done and arranged for a much higher wall to be built between the two properties. This made life a little easier, but the fragile truce came to an abrupt end when the neighbour installed CCTV cameras which filmed everything happening on my property. For me this was the final straw and I consulted with an attorney to find out what action could be taken. A letter was written and although the neighbour threatened all kinds of hell, the stern legal warning seems to have done the trick. The cameras have been removed and things have been quiet for the past six months.
“It appears my biggest mistake was giving in to his demands from the outset because, in his mind, this made us a soft target. There was no reason to cut back the shrubbery, I should have realised my children were just being typical five-year-olds and there was no way he could have heard our TV. We are not and never had been problem neighbours and, although we tried our best to be civil, there was simply no pleasing this man. I’m sorry that I didn’t take legal action much earlier.”
We asked Cape Town-based rental attorney Marlon Shevelew of Marlon Shevelew and Associates Incorporated what steps can be taken against problematic neighbours.
A threat of violence is serious in any context. Anyone on the receiving end of such a threat deserves protection and the first step would be to immediately report the matter to the police. In terms of the Protection from Harassment Act (“the Harassment Act”), “harassment” means “directly or indirectly engaging in conduct which the respondent knows or ought to know causes him or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably—
(i) following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person.“
A threat of violence clearly falls within the definition of harassment, therefore in terms of Section 2 of the Act, the complainant can apply for a protection order, in the prescribed manner, or alternatively they could lodge a criminal complaint of crimen injuria, assault, trespass, or any other offence which has a bearing on the persona of the complainant.
Should a court hearing an application for a protection order in terms of the Act be satisfied there is prima facie evidence that harm is being or may be suffered by the complainant, it will grant an interim order and call on the threatening neighbour (the respondent) to give their version.
If the respondent fails to appear in court, a final order will be granted. If they do appear, the court will hear evidence from both sides and that of any witnesses, where relevant, and thereafter decide whether or not to issue a final protection order. Courts are also empowered by the Act to impose additional conditions on the respondent which it deems reasonably necessary to protect the complainant.
Any person who breaches a protection order may be criminally charged and, if found guilty, held liable to a fine or imprisonment which makes it a powerful deterrent in circumstances such as these.
What legal steps can be taken if your neighbour harasses you?
Any act fitting the description of harassment, as defined in the Protection of Harassment Act, entitles one to the protection afforded by the Act. Therefore the analysis focused on threats of violence similarly applies to the other listed forms of harassment, and the legal steps available to the complainant are the same.
Privacy is seen as a fundamental personal right deserving protection and falls under the umbrella of human dignity. The legal protection of privacy derives from multiple sources: the law of delict, the Bill of Rights, and legislation. Whether or not an act constitutes an actionable infringement of one’s privacy — or whether it warrants the recipient thereof being entitled to protection — depends on the unique facts and circumstances of any given case.
Continually being filmed or photographed by a neighbour without consent would understandably make one feel threatened, and the conduct arguably falls within the ambit of the Protection of Harassment Act, in which case the remedies above might be appropriate.
However, where the conduct does not technically constitute harassment but there is a reasonable chance that the photographer intends posting the photos or videos online, one can apply for an interdict to prevent them from doing so, thereby breaching your right to privacy.
The likelihood of successfully obtaining interdictory relief thus depends whether there is a reasonable apprehension of harm. Merely filming someone without their consent would not automatically be harmful, however continually doing so — in light of the surrounding circumstances — would prima facie be wrongful as it constitutes an unreasonable privacy infringement, and therefore the act of filming is harmful in itself.
If a neighbour damages your property, the available recourse would depend on whether the damage has been caused intentionally or negligently.
If the damage was caused intentionally, one could lay a charge of malicious damage to property — defined as “the unlawful and intentional damaging of property belonging to another person.” The police have a duty to investigate the crime, and, where appropriate, open a docket and refer the matter to the prosecuting authority which would decide whether or not to prosecute the neighbour.
The complainant can also claim for damages against the neighbour for the cost of repairing the damage — which would also be the recourse available in instances where damage has been caused negligently.