Transgression of the stipulations of the Noise Control Regulations of Gauteng is a criminal offence and the accused can be fined up to R20 000 or imprisoned for up to 2 years, or both, if found guilty or admits guilt, and will result in having a criminal record.
Information with regard to a noise nuisance that:
- did not occur in the presence of the responsible Noise Control Officer of Council (Investigating Officer)
- of which the sound, causing the noise nuisance, cannot be measured in accordance with the stipulations of SANS 10103 (“The measurement and rating of environmental noise with respect to annoyance”)
is therefore then addressed in terms of Regulation 9 of the Noise Control Regulations of Gauteng 1999, (Provincial Gazette, Extraordinary no 75 of August 1999) which defines a noise nuisance as “any sound which disturbs or impairs or may disturb or impair the convenience or peace of any person”.
The person, whose convenience or peace is disturbed or impaired by any noise, is therefore entitled to lodge a complaint with this Department.
The official of the Department investigating the complaint does not evaluate the noise or take sound level measurements (Objective Assessment) in the case of noise nuisances (transgression that did not occur in the presence of the Noise Control Officer or sound that cannot be measured in accordance with the stipulations of SANS 10103 and SANS 10328)but issues a statutory notice on the person causing the noise nuisance, or allow it to be caused, on the strength of the information provided by the complainant/s, in his/her official complaint supported by sworn statement/s, only. (Subjective Assessment).
The complainant/s will be notified in writing that a notice had been served and the complainant shall diarise and keep evidence, if and when the noise nuisance reoccurs.
If the person on whom the Statutory Notice has been served, does not comply with the instructions set out in the notice and the noise nuisance continues, the investigating official must take the matter up with the Control State Prosecutor in order for a J175 (Notice to Appear in Court) to be issued. The only information the Control State Prosecutor will have to evaluate as to whether the State will be able to successfully bring the matter to it’s conclusion in Court, will be the statement of the Complainant that initiated the matter and support sworn statements of subsequent reoccurrences after the Statutory Notice had been served.
Although the Statutory Notice served on the person causing the noise nuisance or allowing it to be caused, is strongly worded and has, in most cases, the desired effect to resolve the matter, it remains the first step in instituting legal action. The complainant must therefore be prepared, once the process is set in motion by the issuing of the Statutory Notice, to avail him/herself as State Witness as he/she will be subpoenaed as such. The complainant will be the main witness to offer proof in the case in front of the magistrate. The investigating official handling (investigating) the complaint will facilitate in bringing the parties, the complainant and accused, in front of the Magistrate. (Subjective assessment) The Magistrate, as presiding officer, will assess whether the sound emanating from the alleged transgressor’s premises constitutes a noise nuisance or not, on strength of evidence presented to him during the hearing. The case of the complainant presented by the State through the public prosecutor, using the information from the statement of the complainant, and the counter arguments of the accused represented by his/her legal counsel will therefore apply.
As a result of the Court Roll normally being congested, the Control State Prosecutor is obliged to only issue J175 Notices to Appear in Court and place cases on the Court Roll that have a reasonable chance for successful prosecution.
Audio visual material (videos) will be accepted as court evidence if it can be authenticated and referred to in the affidavit, as well as with the sworn statements of recurrences of the Noise Nuisance after the Statutory Notice was served. This will greatly enhance the case and in some cases the Control State Prosecutor will insist on it, as in cases of dogs barking, prior to issuing J175 Notices to Appear in Court.
It must be emphasised that if, for some reason or another, the case is dismissed in Court and the accused is acquitted, he/she will assume that he/she was in the right and can continue causing the noise nuisance, which will not necessarily be the case, but it will be extremely difficult to bring the same matter to court again.
Note that transgression of the stipulations of this legislation is a criminal offence and the accused can be fined up to R20 000 or imprisoned for up to 2 years, or both, if found guilty or admits guilt, and will result in having a criminal record.
It is therefore critical for the complainant to keep all the above in mind prior the lodging of a complaint and in compiling his/her statement. The investigating official and the State Prosecutor will assist during the Court proceedings, but to have the matter placed on the Court Roll, bring it to a successful conclusion in Court, have the accused found guilty, sentenced and resolve the noise nuisance in this manner, is largely dependent on the complainant him/herself.
Therefore, if a person wishes to lodge a complaint with this Department with regard to a noise nuisance, it should be in the form of a sworn statement (Affidavit).
1. An affidavit;
- 1.1 is a, usually written in the first person, individualised, voluntarily statement of fact made by a person (deponent) about an incident/matter and how he/she experienced the incident and/or witnessed the incident, under oath and/or affirmation that it is the truth.
If more than one person experienced and/or witnessed a particular incident/matter each must make his/her own individualised, voluntarily statement of fact under oath and/or affirmation that it is the truth.
Deponent (a person who makes a statement and signs it under oath)
1.2 must be sworn and/or affirmed as being the truth and the deponent must sign in the presence of a person authorized in this capacity by law, whom is to certify in terms of the Regulations Governing the Administering of an Oath or Affirmation, R 1258 of 21 July 1972 as Amended, that the deponent has acknowledged that he/she understands the contents of the statement, has no objection in taking the prescribed oath and/or affirmation, and considers the prescribed oath and/or affirmation binding on his/her conscience
This serves as evidence to the statement’s authenticity and is required for legal action and court proceedings.
2. An Affidavit must;
- 2.1 identify the individual making the statement (deponent).
2.2 affirm where he/she resides.
- 2.3.1 when
2.3.3 what happened
2.3.4 and how it effects and/or has impact on the deponent and what led up to the statement.
2.4 be to the point about the incident and facts related to it and verification thereof.
2.5 refer to and identify supporting evidence affixed, if any.
2.6 be signed by the deponent in the presence of the authorised person certifying that he/she acknowledges the content of the statement to be accurate and the truth and that he/she considers the prescribed oath and/or affirmation binding to his/her conscience.
3. An Affidavit may not;
- 3.1 be addressed to a specific person.
3.2 address unrelated incidents.
3.3 make assumptions or reflect hearsay as fact.
3.4 make demands.
3.5 be on behalf of a group of people.
4. By signing the affidavit, the subject is making an oath of honesty. All facts within the document must be true. If they are found to be false, the person making the statement may be punishable by law and/or guilty of contempt of Court.
I Identification Number residing at 2.2 Physical Address hereby state/declares thaton the 2.3.1 date at Time, an 2.3.3 incident occurred at 2.3.2 Number, Street, Suburb, Town that 2.3.4 Statement.
It negatively influences my life and/or impairs my peace as (if applicable) 2.3.4 Statement.
I verified that it originates from/happened at the above mentioned property 2.4 Statement and affix hereto as 2.5 Evidence Annexure “A” and Annexure “B”
It previously occurred History if any and action taken to resolve, if any
Deponent’s Signature 2.6
I certify that the deponent has acknowledged that he/she understands the contents of the above statement, has no objection in taking the prescribed oath and/or affirmation that it is the truth and considers the prescribed oath and/or affirmation binding on his/her conscience. 1.2
Sworn/Affirmed and signed before me at Place……………..on the Day…………day of Mont………………. 20 Year…….
Ex Officio Commissioner of Oaths
Full Name: ……………………………………..
Business address: …………………………….