Abstract
As a general principle of law, a property owner has the right to freedom to enjoy his property free from a noise nuisance. However, there also rests a duty on an owner to exercise his powers within the normal and acceptable limits of reasonableness and not to infringe on other owners’ right of enjoyment of their property. Where any landowner exceeds this reasonable exercise of ownership rights, the conduct creates a nuisance to his neighbour that is actionable in accordance with the principles of neighbour law. Nuisance laws form part of our neighbour law that provides for the rules and regulations on how property owners should use their properties. Neighbour law exists as a mechanism to balance the rights of neighbours, particularly where competing interests exist. Any sound which impairs or may impair the convenience or peace of a reasonable person, like church bells or the sound of musical instruments or sound amplifiers, qualifies as a noise nuisance that can be regulated on national, provincial or local level through appropriate noise control regulations and bylaws. In January 1992 the Minister of Environment Affairs promulgated the Noise Control Regulations under section 25 of the Environment Conservation Act 73 of 1989. Since 1996, in terms of Schedule 5 of the Constitution, the individual provinces have been responsible for administering these regulations and have enacted their own noise control regulations. In terms of the Constitution, municipalities further have legislative authority in relation to matters set out in Part B of Schedule 5, which include public nuisance and noise pollution. The Constitution envisages that municipalities will administer noise nuisance with support and oversight from the provincial government. Various municipalities have enacted noise and nuisance bylaws.
However, liturgical bell ringing of churches in the traditional sense is part of the legitimate exercising of a religious conviction and a way in which believers may manifest their beliefs. The regular ringing of bells for these purposes should not be seen as constituting a substantial burden to the public, but rather as a socially acceptable activity. This is confirmed by the City of Tshwane Noise Management Policy, which takes the view that religious activities such as the ringing of church bells on Sunday mornings and a muezzin calling from a mosque should be seen as “activities which must be accepted by all as a healthy aspect of our urban community life, albeit as diverse groups and individuals within a community, but with the proviso that such activities are undertaken at reasonable times and are not excessively disruptive to other essential/normal activities or to the point of being a health hazard”. Section 15 of the Constitution provides for very wide protection of religious freedom by stating that everyone has the right to freedom of conscience, religion, thought, belief and opinion. The right to believe always goes hand in hand with the right to manifest and practise those beliefs, which means that one has the right to the private or public, and the individual or joint, observance and exercise of one’s religious or other convictions. Religious activities such as the ringing of church bells on Sunday mornings and a muezzin calling from a mosque are ways in which believers manifest and practise their beliefs. These practices form part of the right to freedom of religion, protected under section 15 of the Constitution, read together with section 31, which guarantees the right to persons belonging to religious communities to enjoy and practise their religion together with other members of that community. This is further entrenched in section 4 of the South African Charter of Religious Rights and Freedoms that guarantees “every person the right to the private or public, and individual or joint, observance or exercise of their convictions, which may include but are not limited to reading and discussion of sacred texts, confession, proclamation, worship, prayer, witness, arrangements, attire, appearance, diet, customs, rituals and pilgrimages, and the observance of religious and other sacred days of rest, festivals and ceremonies”,
In relation to the ringing of church bells to indicate the time of the day, it may be argued that this kind of ringing must be somewhat less loud, since it is not for a religious, but rather some social purpose. This type of practice may constitute a noise nuisance that is subject to regulation through the various noise control regulations and bylaws. However, no fundamental right is absolute and even the right to freedom of religion can be justifiably limited in accordance with the Constitution to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation and regulation of these practices may be necessary in order to preserve peace and tranquillity, particularly in localities where people of different faiths reside. Most noise control regulations and bylaws in South Africa distinguish between a “disturbing noise” and a “noise nuisance”. A disturbing noise is a scientifically measurable noise level that should not exceed the required ambient sound level, whereas a noise nuisance is more subjective and relates to a noise that disturbs or impairs the convenience or peace of any person. The various noise control regulations prohibit both forms of noise.
In an interesting case before the Western Cape High Court, Garden Cities Incorporated Association Not For Gain v Northpine Islamic Society 1999 2 SA 268 (C), a developer of townships in the Cape Peninsula sold a property to the Islamic Society, who intended to erect a mosque on it. They concluded an agreement to the effect that the Islamic Society would not conduct any activities that would cause a nuisance or disturbance. However, the Islamic Society installed a sound amplifier, which resulted in numerous complaints from residents. The residents’ association then approached the court for an interdict to prohibit the Islamic Society from using the amplification equipment. The Islamic Society argued that the prohibition on the call to prayer infringed on their right to freedom of religion. The court was of the view that the prohibition regulated only a particular ritual practised at a particular place and that the regulation was in the interests of other members of the community. The court interdicted the Islamic Society from using any sound amplification equipment on the property and ordered them to remove all loudspeakers and sound amplification equipment installed on the property.
What was clear from the discussion was the fact that the use of religious symbols, church bells or even musical accompaniments and amplifiers associated with a religion or belief must be enjoyed with due consideration of the rights of others. Liturgical bell–ringing, or the call to prayer as a form of religious manifestation, is not exempt from noise control regulations and bylaws, but these laws and their application must also take into account the religious needs of the community. The government has to find an adequate balance of all needs concerned. The preamble of the South African Charter of Religious Rights and Freedoms emphasises and recognises the fact that rights also impose the corresponding duty on everyone in society to respect the rights of others. In exercising our various rights, whether the right to freedom of religion or the right to enjoyment of property free from a noise nuisance, everyone should aim to act lawfully and ethically in accordance with the principles of tolerance, fairness, openness and accountability.
Keywords: church bells; freedom of religion; legislation; noise control regulations; noise nuisance
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