Hermant Bhana and Urvashi Bhana v Johanes Lazanakis and Angelica Lazanakis and Meyersdal Ridge Home Owners Association

The applicants, Hermant and Urvashi Bhana, are joint owners of unit 5 in the Meyersdal Ridge Home Owners Association scheme. The first and second respondents, Johanes and Angelica Lazanakis, are joint owners of unit 36 in the same community scheme. The dispute concerned the respondents’ two dogs, which the applicants alleged had been barking incessantly since about March 2022 and thereby interfering with the applicants’ peaceful use and enjoyment of their property, particularly while the family was working and studying from home during and after the Covid period. The applicants first attempted to resolve the matter directly with the respondents and a meeting was eventually held on 22 October 2022, at which audio-visual evidence was shown and various remedial strategies were discussed. A grace period was allowed, but the applicants contended that the barking continued. Thereafter complaints were escalated to the HOA, which issued warning letters and fines, and an internal conciliation meeting took place on 30 March 2023. The matter was then referred to CSOS. The respondents admitted there had been a problem historically, but said they had taken remedial steps, including anti-bark/vibrating collars, changing the dogs’ sleeping and patio arrangements, and identifying stress triggers. They contended that from 5 July 2023 there had been no further persistent barking while the dogs were unattended. The HOA’s portfolio manager confirmed that no complaints of persistent barking had been received after that date. The applicants ultimately sought an order under s 39(2)(b) of the CSOS Act requiring removal of the dogs.

• Whether the barking of the respondents’ dogs constituted a nuisance or undue interference with the applicants’ peaceful use and enjoyment of their property within the meaning of section 39(2)(b) of the CSOS Act.
• Whether the applicants proved, on a preponderance of probabilities, that the barking was incessant, serious and ongoing so as to justify an order removing the dogs.
• Whether, applying South African common-law nuisance principles, the level of interference exceeded what reasonable neighbours in a residential community scheme are expected to tolerate.
• Whether the adjudicator should grant the drastic remedy of removal of the animals in the circumstances.

The application was dismissed in terms of section 53(1)(a) of the Community Schemes Ombud Service Act 9 of 2011 as misconceived. No order as to costs was made.

For purposes of section 39(2)(b) of the CSOS Act, a barking-dog complaint justifies removal of an animal only where the applicant proves on a preponderance of probabilities that the barking amounts to an objectively unreasonable and sufficiently serious nuisance that unduly interferes with peaceful use and enjoyment of property, exceeding the degree of interference reasonably expected between neighbours in a residential community scheme. Intermittent daytime barking episodes, especially where remedial steps have been taken and the evidence does not establish ongoing incessant nuisance, are insufficient to warrant removal of the dogs.

The adjudicator observed that the dispute appeared to have escalated beyond the dogs and had become a deeply personal conflict between the families, with the dogs becoming 'secondary pawns' in that conflict. The adjudicator also expressed the view, based on experience, that truly incessant barking would likely affect more than one household. Further non-binding remarks included a strong recommendation that the respondents continue using vibrating collars, urgently consult an animal behaviourist, and understand that the present dismissal would not guarantee the same result in future if the dogs’ behaviour deteriorated.

The matter is significant as a CSOS application illustrating how nuisance complaints about animals in community schemes are assessed through the lens of South African common-law neighbour principles and section 39(2)(b) of the CSOS Act. It shows that removal of a pet is an exceptional remedy and that an applicant must prove more than mere irritation or intermittent barking; the interference must be objectively unreasonable, serious and sufficiently persistent. The ruling also underscores the evidential importance of duration, repetition, corroboration and contemporaneous complaints in CSOS nuisance disputes.