Dogs that become a danger or nuisance to those around them can be confiscated through legal action, and noisy neighbours can also be reported to police.
But what if your neighbour is smoking weed and you cannot deal with the smell? Do you have the right to take legal action against them?
The answer is yes.
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Following the publishing of an article regarding noisy and selfish neighbours, an IOL reader who lives in Johannesburg, wrote in to say that she also has a neighbour problem – a weed-smoking problem.
“Try having a neighbour whose live-in male employee smokes weed under your bedroom window every day and especially at night,” Ann* writes.
“I am a health practitioner and thus anti-smoking. I don’t condone weed smoking on my property...and do not appreciate the health hazards of second-hand smoke. Nor do I enjoy the smell of weed.
“The property next door has ample space in the garden so the smoker could easily choose another space.”
She and the the owners of the property have lived amicably as neighbours for 30 years, but the employee’s habit has been escalating over the past year. She has approached the owners about the issue but says that, as the employee’s home is on the same side of the property as her bedroom, he reverts to the same pattern in his “weed-addled” state.
“When smokers restrict their smoking to a suitable environment I respect that. But this is not a dedicated public space issue. It’s an aberration to second-hand smoke and the smell of weed.
“I can’t imagine how one would handle this in a flat or high-density living,” Ann says.
And she is not the only person experiencing a neighbour weed-smoking issue.
Carl* and his partner live on a shared property in Durban, and when they moved into their apartment, they introduced themselves to the people who lived a few metres away in a granny flat.
“The first thing one of the ladies said to me was that she did smoke weed occasionally. Apparently, the person who used to live in our home before us also used to, and so they would smoke together.”
The smell does not really infiltrate their home so while they are inside they do not smell it, but if they are outside in their garden, the odour is strong.
“It is rather unpleasant, mainly for my wife. I don’t particularly like the smell but I can live with it, but she absolutely hates it and has to go inside until the neighbour has finished smoking.”
Megan* and her family had to endure the smell of weed from both the next-door neighbours and those who lived across the road. As much as it bothered them, they were initially concerned that the neighbours opposite were dealing in harder drugs.
“It was really strange as the guy would stand in the road outside his property around the same time in the evening, every evening. He would stand in the dark until a car slowly pulled up next to him. They would make a quick exchange through the passenger window and then the car would leave.
“Eventually my partner, who had developed a neighbourly relationship with the guy, asked him what the deal was with this nightly routine, and he told him that he buys weed for his girlfriend. Apparently she cannot sleep without it.”
While this family was inside their home they could not really smell their neighbours smoking weed, but if they were outside, either during the day or evening, the smell was potent.
Unlike with noisy neighbours however, those who smoke weed are not doing anything wrong.
Responding to Ann’s predicament, Simon Dippenaar of Simon Dippenaar & Associates says the employee is not breaking the law as cannabis use for private consumption is legal in South Africa. At the same time, many people do not allow smoking in their homes and this is considered socially acceptable.
However, there may be some ground for legal recourse.
“There is a precedent in law for dealing with obnoxious odours. A case came before the Western Cape High Court a few years ago whereby neighbours of a mushroom farm were driven indoors by the stench from the farm. The farm’s activities were legal and reasonable – it made a type of compost (called substrate) required to grow the mushrooms.
“The judges in the case ruled that the odour from the farm constituted a nuisance.”
Dippenaar explains that Section 24(a) of the Constitution gives everyone the right “to an environment that is not harmful to their health or well-being”. The judges agreed that an environment that is repulsive to the senses of an ‘ordinary person’ is harmful to their well-being.
“Section 28(1) of the National Environmental Management Act 107 of 1998 states that anyone causing ‘significant pollution or degradation of the environment’ must take reasonable measures to prevent such pollution or degradation. If it cannot be avoided, it must be ‘minimise[d] and remed[ied]’.
“‘Pollution’ is defined as a change in the environment having ‘an adverse effect on human health or well-being’, caused by substances and by odours from an activity.”
He also states: “Section 35(2) of the National Environmental Management: Air Quality Act 39 of 2004 requires an occupier of any premises to ‘take all reasonable steps to prevent the emission of any offensive odour caused by any activity’ on their premises. ‘Offensive odour’ is defined as ‘any smell which is considered to be malodorous or a nuisance to a reasonable person’.”
While he says it is doubtful whether the odour emanating from a cannabis cigarette would be classified as pollution or degradation of the environment, it is a smell that [can be] malodorous to [people] and cause a nuisance, and therefore it is an offensive odour.
Dippenaar’s advice to Ann, which can also be adopted by other neighbours in her situation, is: “If you have been seen to ask your neighbour in a friendly manner to put a stop to the employee’s behaviour, it is likely you will be deemed to be a reasonable person. You could also argue that the inevitability of breathing in the employee’s second-hand smoke constitutes an environment that is harmful to your health or well-being.”
He adds: “If you were to raise an action against your neighbour, you would likely have a strong case. But you would also likely put an end to your ‘years of living amicably’. Good neighbours are invaluable. Try to sort it out between you as friends.”
*Names changed for privacy
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