Mark Swart v VB Rozier

The applicant, Mark Swart, was a tenant of unit 27 in the Sanylands Body Corporate in Cape Town. The respondent, VB Rozier, was identified in the order as the owner of unit 35 in the same scheme. Swart complained that since the end of December 2022, the occupants of unit 35, including three children, had caused persistent noise by running, screaming, and banging on floors and walls above his unit, both day and night. He also alleged that the unit was overcrowded, with seven occupants despite conduct rules allowing only four persons in a two-bedroom unit. According to the applicant, the noise negatively affected his family, including two school-going children who struggled to sleep. He said he had attempted to resolve the matter directly with the tenants and through the body corporate, but without success. The respondent did not file any submissions despite being afforded the opportunity to do so.

• Whether the applicant, as a tenant materially affected by the dispute, was entitled to seek relief under sections 38 and 39(2)(a) of the CSOS Act.
• Whether the conduct complained of, namely sustained noise from the occupants/children in unit 35, constituted a nuisance under section 39(2)(a) of the CSOS Act.
• Whether, on the evidence before the adjudicator and in the absence of any response from the respondent, an order should be made restraining the respondent from continuing the nuisance.
• How the objective 'reasonable person' standard in neighbour-law nuisance should be applied in a community scheme context.

The application was granted. The respondent was ordered to refrain his children from making banging noises, to refrain from causing a nuisance to the annoyance of other members, and to comply with the order within 1 day of receipt of the order. No order as to costs was made.

Within a community scheme, sustained noise that objectively interferes with another occupier's peaceful use and enjoyment of property may constitute a nuisance for purposes of section 39(2)(a) of the CSOS Act. In determining nuisance, an objective reasonable-person standard derived from neighbour law applies, and where the applicant's evidence establishes ongoing disturbance on a balance of probabilities and is left uncontested by the respondent, the adjudicator may order the respondent to cease the offending conduct.

The adjudicator made a non-essential observation that it was unfortunate that the applicant did not include the owner of the unit as a respondent, because an order against the owner would also have been competent. The order also included general remarks on the importance of peace and order in community schemes and the broader balancing of neighbouring property rights, which were supportive but not strictly necessary to the final order.

The decision is significant as a CSOS adjudication applying South African neighbour-law nuisance principles within a community scheme context. It confirms that persistent noise complaints in sectional title or body corporate living arrangements may constitute a behavioural nuisance under section 39(2)(a) of the CSOS Act, and that a tenant materially affected by such conduct may seek relief. It also illustrates that where a respondent fails to participate, uncontested evidence may justify behavioural orders to protect peaceful occupation in community schemes.