The Public Health Bill, 1999

PART XIII: NUISANCE, SANITATION, DWELLINGS, PUBLIC AND OTHER BUILDINGS

Interpretation

128. In this Part, unless the context otherwise requires -

"author" means an author of a public health nuisance;

"author of a public health nuisance" means any person or body by whose act, default or sufferance the public health nuisance is caused or exists or continues whether that person or body is an owner or occupier, estate agent or both owner and occupier or any other person;

"health" means public health;

"medical officer" includes an environmental health officer or such other authorised officer;

"nuisance" means a public health nuisance; and

"residential house or place or dwelling" means a dwelling intended for the occupation by a human being.

Nuisance prohibited

129. No person shall cause a nuisance, or shall suffer any nuisance or other condition liable to be injurious or dangerous to health to exist on any land or premises owned or occupied by that person or which that person is in charge of.

Duties of local authorities to maintain cleanliness and prevent nuisance

130. (1) Every local authorities shall take all lawful, necessary and reasonably practicable measures for -

(a) maintaining its area at all times in a clean and sanitary condition, and preventing the occurrence therein of, or remedying or causing to be remedied, any nuisance or condition liable to be injurious or dangerous to health; and

(b) preventing any pollution dangerous to health of any supply of water which the public within its area has a right to use and does use for drinking or domestic purposes, whether such supply is derived from sources within or beyond its area, and purifying any such supply which has become so polluted, and to take measures, including, if necessary, proceedings at law against any person causing or responsible for the continuance of any such nuisance or condition or any person polluting any supply of water so as to be a nuisance or danger to health.

(2) Nothing in this section shall be construed as preventing the Minister from suing or enforcing the provisions of this section.

Duties of local authorities to prevent or remedy danger to health arising from unsuitable dwellings

131. (1) Every local authority shall take all lawful, necessary and reasonably practicable measures for preventing or causing to be prevented or remedied all conditions liable to be injurious or dangerous to health arising from the erection or occupation of unhealthy dwellings or premises, or the erection of dwellings or premises on unhealthy sites or on sites of insufficient extent, or from over-crowding, or from the construction, condition or manner of use of any factory or trade premises and to take proceedings under the law or regulations in force in its area against any person causing or responsible for the continuance of any such condition.

(2) In exercise of the functions of subsection (1) a local authority shall consult with the Chief Inspector of Factories, Machinery and Construction Works or the Occupational Safety and Health Officer in respect of workplaces if the action is likely to interfere with the condition or manner of use of machinery or workplaces.

(3) Failure to consult shall not vitiate the exercise of the powers conferred by subsection (1).

What constitutes a nuisance

132. (1) The following shall be deemed to be nuisance liable to be dealt with under this Part, any -

(a) vehicle in such a state or condition as to be injurious or dangerous to health;

(b) dwelling or premises or part thereof which is of such construction or in such a state or so situated or so dirty or so verminous or so damp as to be or likely to be injurious or dangerous to health or which is liable to favour the spread of any communicable disease;

(c) street, road or part thereof, stream, pool, lagoon, ditch, gutter, watercourse, sink, watertank, cistern, water-closet, earth-closet, privy, urinal, cesspool, soakaway pit, septic tank, cesspit, soil-pipe, waste-pipe, drain, sewer, garbage receptacle, dust-bin, dung-pit, refuse-pit, slop-tank, ash-pit or manure heap, so foul or in such a state or so situated or constructed as to be offensive or to be or likely to be injurious or dangerous to health;

(d) growth of weeds, long grass, trees, undergrowth, hedge, bush or vegetation of any kind which is or is likely to be injurious or dangerous to health, and any vegetable that of itself is or is likely to be dangerous to children or others either by its effluvia or through its leaves, seeds, fruits or any part of it being eaten;

(e) well or other source of water supply or any cistern or other receptacle for water, whether public or private, the water from which is used or is likely to be used by human beings for drinking or domestic purposes or in connection with any dairy or milkshop or in, or in connection with the manufacture or preparation of any article of food intended for human consumption, which is polluted or otherwise liable to render any such water injurious or dangerous to health;

(f) noxious matter, or waste water, flowing or discharged from any premises, wherever situated, into any public street, or into the gutter or side channel of any street, or into any gulley, swamp, or watercourse, irrigation channel or bed thereof not approved by the local authority for the reception of such discharge;

(g) collection of water, sewage, rubbish, refuse, ordure, or other fluid or solid substances which permit or facilitate the breeding or multiplication of animal or vegetable parasites of human beings or domestic animals, or of insects or of other agents, which are known to carry such parasites or which may otherwise cause or facilitate the infection of human beings or domestic animals by such parasites;

(h) collection of water in any well, pool, gutter, channel, depression, excavation, barrel, tub, bucket, or any other article, and found to contain any of the immature stages of the mosquito;

(i) cesspit, latrine, urinal, dung-pit, or ash-pit found to contain any of the immature stages of the mosquito;

(j) stable, kraal, cow-shed or other building or premises used for the keeping of animals or birds which is so constructed, situated, used or kept as to be or likely to be offensive or injurious or dangerous to health;

(k) animal so kept as to be or likely to be offensive or injurious to health;

(l) accumulation or deposit of refuse, offal, manure, or other matter whatsoever which is or is likely to be offensive or injurious or dangerous to health;

(m) accumulation of stones, timber or other material of any nature whatever if such accumulation harbours or is likely to harbour rats or other vermin;

(n) premises in such a state or condition and any building so constructed as to harbour or be likely to harbour rats and other rodents;

(o) dwelling or premises which is so overcrowded as to be or likely to be injurious or dangerous to the health of the inmates or is dilapidated or defective in lighting or ventilation, or is not provided with or is so situated that it cannot be provided with sanitary accommodation and cooking facilities to the satisfaction of a medical officer of health;

(p) building which is so situated, constructed, used or kept as to be or likely to be unsafe or injurious or dangerous to health;

(q) occupied dwelling for which such a proper, sufficient and wholesome water supply is not available within such reasonable distance as under the circumstances it is possible to obtain;

(r) factory or trade premises or workplace not kept in a cleanly state and free from offensive smell arising from any drain, privy, water-closet, earth-closet, or urinal, or not ventilated so as to destroy or render harmless and in offensive as far as practicable any gases, vapours, dust or other impurities generated, or so overcrowded or so badly lighted or ventilated as to be or likely to be injurious or dangerous to the health of those employed therein;

(s) factory or trade premises causing or giving rise to smell or effluvia which are or are likely to be offensive or injurious or dangerous to health;

(t) area of land kept or permitted to remain in such a state as to be offensive, or liable to cause any infection, communicable or preventable disease or injury or danger to health;

(u) chimney sending forth smoke in such quantity or in such manner as to be or likely to be offensive or injurious or dangerous to health;

(v) cemetery, burial place, crematorium or other place of sepulture so situated or so crowded or otherwise so conducted as to be or likely to be offensive or injurious or dangerous to health;

(w) gutter, drain, chute, stack pipe, down spout, water-tank or cistern which by reason of its insufficiency or its defective condition causes or is likely to cause damp in any dwelling;

(x) deposit of material in or on any building or lane which causes or is likely to cause damp in any building so as to be or likely to be dangerous or injurious to health;

(y) dwelling, public building, trade premises, workplace, workshop or factory not provided with sufficient and sanitary latrines or facilities;

(z) any noise made by any person from any premises or from any place at or near residential dwellings or could be heard in the dwelling house including noise from any equipment, appliance or devise, which noise is generated or made in amounts or volume and manner as to be offensive, or injurious or dangerous to health; or

(aa) other condition whatever which is or is likely to be offensive, injurious or dangerous to health.

(2) No person shall keep cattle, pigs and such other animals as they may be prohibited by the Minister by notice published in the Gazette, within the boundary of a town or city without permission from the Minister, except in a pound.

Notice to remove nuisance

133. (1) A local authority or a medical officer of health, environmental health officer or such authorised officer, if satisfied of the existence of a nuisance, may serve a notice on the author of the nuisance or, if the author cannot be found, then on the occupier or owner of the dwelling or premises on which the nuisance arises or continues requiring the author to remove it within the time specified in the notice and to execute such works and do such things as may be necessary for that purpose and if the local authority or medical officer of health thinks it desirable, but not otherwise, specifying any works to be executed to prevent a recurrence of the said nuisance.

(2) If the nuisance arises from any want or defect of a structural character, or the dwelling or premises is unoccupied, the notice shall be served on the owner.

(3) If the author of the nuisance cannot be found or it is clear that the nuisance does not arise or continue by the act or default or sufferance of the occupier or owner of the dwelling or premises, the local authority shall remove the nuisance, and may do what is necessary to prevent the recurrence thereof.

Procedure in case owner fails to comply with notice

134. (1) If the person on whom a notice to remove a nuisance has been served under section 133 fails to comply with any of the requirements thereof within the time specified, or if the nuisance although removed since the service of such notice, in the opinion of the local authority or such other authorised officers, is likely to recur on the same premises, the local authority or such other authorised officer may cause a complaint relating to such nuisance to be made before a magistrate and the magistrate shall thereupon issue a summons requiring the person on whom the notice was served to appear before a magistrate's court.

(2) If such court is satisfied that the alleged nuisance exists, or that although removed it is likely to recur on the same premises, the court shall make an order -

(a) on the author thereof, or the occupier or owner of the dwelling or premises or workplace, as the case may be, requiring such person to comply with all or any of the requirements of the notice or otherwise to remove the nuisance within a time specified in the order and to do any works necessary for that purpose; or

(b) prohibiting the recurrence of the nuisance and directing the execution of any works necessary to prevent the recurrence; or

(c) both requiring removal and prohibiting the recurrence of the nuisance.

(3) The court may by such order impose a fine not exceeding one thousand Emalangeni on the person on whom the order is made and may also give directions as to the payment of all costs incurred up to the time of the hearing or making of the order for the removal or prohibition of the nuisance.

(4) Before making any order, such court may, if it thinks fit, adjourn the hearing or further hearing of the summons until an inspection, investigation or analysis in respect of the nuisance alleged has been made by some competent person.

(5) If the nuisance proved to exist is in the judgement of such court such as to render a dwelling unfit for human habitation, the court may issue a closing order prohibiting the use thereof as a dwelling until in its judgement the dwelling is fit for that purpose.

(6) Such court may further order that no rent shall be due or payable by or on behalf of the occupier of such dwelling in respect of the period in which the closing order exists.

(7) If such court is satisfied that such dwelling has been rendered fit for use as such it may terminate the closing order and by a further order declare the dwelling habitable, and from the date thereof such dwelling may be let or inhabited.

(8) Notwithstanding any order mentioned in subsection (7), further proceedings may be taken in accordance with this section in respect of the same dwelling in the event of any nuisance occurring or of the dwelling being again found to be unfit for human habitation.

(9) Nothing in this section shall be construed as preventing the Minister from doing any of the powers conferred on a local authority, including the amending, by notice published in the Gazette, the fine.

(10) The Minister may make any regulations for the purposes of sections 129 to 134 inclusive, to be published in the Gazette, which regulations may prescribe offences and penalties.

Offences and penalties relating to nuisance

135. (1) The Minister, the local authority and the court may, separately, make orders to be complied with by any person to whom the order is directed, relating to sections 132, 133 and 134.

(2) Any person who fails to comply with an order made under section 132, 133, or 134, unless that person satisfies the court that the person has used all diligence to comply with such order, commits an offence and liable on conviction to a fine not exceeding three thousand Emalangeni and to a further fine not exceeding fifty Emalangeni for every day during which the nuisance continues, or to imprisonment not exceeding thirteen months.

(3) The local authority may in such case enter the premises to which any such order relates and remove the nuisance and do whatever may be necessary in the execution of such order and may recover the expenses incurred by it in any competent court from the person on whom the order is made.

Court may order local authority to execute works in certain cases

136. If it appears to the satisfaction of the court that the person by whose act or default the nuisance arises, or the owner or occupier of the premises, is not known or cannot be found, the court may at once order the local authority to execute the works thereby directed and the cost of executing the same shall be a charge on the property on which the said nuisance exists.

Power of sale

137. Any matter or thing taken away by a local authority in removing any nuisance under this Part may be sold by public auction; and the money arising from the sale may be retained by the local authority, and applied in payment of the expenses incurred by it in respect of such nuisance, and the surplus, if any, shall be paid, on demand, to the owner of such matter or thing if the person establishes that person's claim thereto within two years from the date of such sale, failing which such surplus shall become part of the Consolidated Fund.

Persons jointly responsible for nuisances may be proceeded against

138. (1) If any nuisance liable to be dealt with under this Part appears to be wholly or partly caused by the acts or defaults of two or more persons, a local authority may institute proceedings against any one of such persons or may include all or any two or more of them in one proceeding, and any one or more of such persons may be ordered to remove the nuisance, so far as it appears to be caused by that person's or their acts or defaults, or may be prohibited from continuing any acts or defaults which contribute to the nuisance, or may be fined or otherwise dealt with notwithstanding that the acts or defaults of any one of such persons would not separately have caused a nuisance; and the costs may be distributed as may appear to the court to be fair and reasonable.

(2) Proceedings under subsection (1) against several persons included in one complaint shall not abate by reason of the death of any of the persons so included, but all such proceedings may be carried on as if such deceased person had not been originally so included.

(3) If only some of the persons by whose act or default any nuisance has been caused or partly caused have been proceeded against under this Part, they shall, without prejudice to any other remedy, be entitled to recover from any other persons who were not so proceeded against and by whose act or default the said nuisance was caused or partly caused a proportionate part of the costs of and incidental to such proceedings, abating such nuisance, any fine and costs ordered to be paid in such proceedings.

Rights of members of the public to complain against nuisance

139. (1) Any individual person or group of persons who allege that a public health nuisance exists, may notify the local authority supported by a report from an environmental health officer or such other authorised officer, and if the local authority fails within a reasonable time to rectify or remedy the situation, such person or persons may institute court processes against the local authority or such author of the nuisance.

(2) Where the court is satisfied that the persons making a complaint under this section had reasonable grounds for doing so, the court may, when making an order for the removal of the nuisance, also order the local authority to pay any expenses or costs incurred by such person or persons instead of ordering the author of the nuisance to pay the same.

(3) The court may likewise order any person whose complaint appears to it to be frivolous or vexatious or dubious to pay the costs and expenses incurred by the local authority or person who has answered the complaint.

Examination of premises

140. (1) The local authority or any of its officers, a medical officer, an environmental health officer or a health inspector may at all reasonable times enter any building or premises for the purpose of examining it to ascertain whether any nuisance exists therein, and any of its officers may, if necessary, open up the ground of such premises and cause the sewers to be tested or such other work to be done as may be necessary for the effectual examination of the said premises.

(2) If no nuisance is found to exist, the local authority or such other person mention in this section shall restore the premises at its own expense or that person's expense.

Demolition of unfit buildings

141. (1) If a nuisance is proved to exist with respect to a building and the court is satisfied that such building is so dilapidated, or so defectively constructed, or so situated, that repairs to or alterations of it are not likely to remove the nuisance and make such dwelling fit for human habitation, the court may order the owner thereof to commence to demolish the building on or before a specified day, being at least one month from the date of issuing the order, and to complete the demolition and to remove the materials which comprised the same from the site before another specified day.

(2) If any person fails to comply with an order for demolition made under subsection (1) that person commits an offence and shall be liable to pay the daily fine provided in section 144 (2), and the local authority may cause the building to be demolished and may recover from the owner the expense incurred in doing so after deducting the net proceeds of the sale of the materials, which the local authority may sell by auction.

(3) The court shall give notice to the occupier of a building in respect of which such order has been issued requiring that person to move therefrom within a time to be specified in such notice.

(4) If any person fails to comply with such notice given under subsection (3) or enters the building or premises after the date fixed by the court for the commencement of the demolition thereof, except for the purpose of demolition, that person commits an offence.

(5) No compensation shall be payable by the local authority to the owner or occupier of any building in respect of such demolition, and from the date of such demolition order no rent shall be due or payable by or on behalf of the occupier in respect of such building.

(6) Demolition of a building under this section shall be carried out in accordance with the Building Act, No. 34 of 1968 or its successor, and the order of the court shall be deemed to be a permit to demolish under that Act.

Saving as to other legislation relating to nuisances

142. Nothing in this Part shall prevent a local authority from taking steps in terms of any other law relating to nuisances in force within its area or rendering such law invalid in so far as it provides for nuisances.

Cost of execution of provisions relating to nuisances

143. (1) All reasonable costs and expenses incurred in serving a notice, making a complaint or for anything done under sections 142 and 143, or in carrying the order into effect, shall be deemed to be money paid for the use and at the request of the person on whom the order is made, or, if no order is made but the nuisance is proved to have existed when the notice was served or the complaint made, then of the author of the nuisance.

(2) Such costs and expenses incurred in relation to any such nuisance may be recovered as a civil debt, and the court shall have power to divide such costs and expenses between the authors of the nuisance as to it may seem just.

(3) If, in accordance with this Act, a local authority has itself abated or removed a nuisance or done what is necessary to prevent a recurrence thereof, and if no owner or occupier of the premises can be found, or appears or pays the expenses thereby incurred within six months after the completion of the removal or abatement of such nuisance, the court may order the premises upon which the work has been done, or any part thereof, or any movable property found thereon, to be sold by public auction, and the amount realised by such sale shall be applied in defraying the said costs and expenses, and the balance, if any, paid over to the owner or occupier if such owner or occupier establishes the claim thereto within two years after the date of such, failing which such balance shall become part of the Consolidated Fund.

Buildings used for storage of food

144. (1) A building which is regularly used for the storage of food for the purposes of trade shall be of such material and so constructed as to render it rat-proof and vermin-proof.

(2) If, a building intended, or being used, for the storage of food for the purposes of trade is either in a state of disrepair or, by reason of its design or construction or defective materials, does not afford sufficient protection against rats or vermin invasion, the local authority may, by written notice, require the owner to effect specified repairs and alterations within a stipulated time, and, if the notice is not complied with, the local authority may enter the premises of the warehouse or other building and effect the repairs and alterations and recover the cost of effecting the repairs and alterations from the owner.

(3) If a medical officer of health considers that food stored for the purposes of trade is insufficiently protected against rats, vermin or pollution, such officer may, by written notice, give the occupier of the building instructions for the better protection of the food, and shall in such notice state a time within which the instructions are to be complied with.

(4) Any person who fails to comply with a notice given under this section commits an offence and liable, on conviction, in the case of an offence under -

(a) subsection (2) to a fine not exceeding three thousand Emalangeni or six months' imprisonment or both; and

(b) subsection (3) to a fine not exceeding two thousand Emalangeni or three months' imprisonment or both.

Rooms used for storage of food

145. (1) No person shall sleep or reside in a kitchen or any other room in which food intended for sale is prepared or stored.

(2) If a medical officer of health or such other authorised person considers that premises adjoining the kitchen or room referred to in subsection (1) is being used for the purposes of sleeping and that food in the said kitchen or room is thereby likely to become contaminated or otherwise made unwholesome; such officer may serve upon the owner or occupier of those premises, or both, a notice calling upon them to take such necessary measures within the time specified in the notice.

Powers of entry and inspection, etc.

146. For the purpose of making an inspection or doing the work or other thing necessary for, or incidental to, the carrying out of the functions under this Act, a medical officer of health or an officer or person to whom powers have been delegated under this Act in writing, a health inspector, an administrative officer, or a local authority or an officer or a person to whom it has been delegated powers under this Act in writing, may, at any reasonable time when the inspection, work or other thing may be properly carried out, enter any land or premises by force if necessary.

Special powers of medical officer of health

147. (1) If a medical officer of health or such other authorised person reasonably considers it necessary for the protection of public health, the officer may -

(a) require the medical examination of any person who is in any premises where milk or any other dairy product or other article of food intended for sale is prepared, collected, kept or sold, or of such person who is, or has been, or will be engaged in the preparation, collection, keeping, conveyance or distribution of such milk, product or article; and

(b) prohibit any person who keeps cows, or a dairyman or m a purveyor of milk, or any other person, to employ, in connection with the preparation, collection, keeping, conveyance or distribution of milk or other dairy product or other article of food, a person found to be suffering from a communicable disease and for so long as that person is so suffering.

(2) Any person who, without reasonable excuse fails to submit to a medical examination required of that person under subsection (1)(a), or contravenes or permits any other person to contravene subsection (1)(b), commits an offence.

Other duties of a local authority

148. Without prejudice to any section of this Part it shall be the duty of every local authority or responsible authority to take all necessary and reasonable practicable measures for preventing or for causing to be prevented or remedied all conditions liable to be injurious or dangerous to health arising from the erection of or occupation of unhealthy dwelling, public and other building or premises or the erection of dwellings, public and other building on unhealthy sites or sites of insufficient extent, or from overcrowding, or the construction and manner of use of any factory, workplace or trade premises, and to take proceedings under the law or regulations in force in its area of jurisdiction against any person causing or responsible for the continuance of any such condition.

Prohibitions

149. (1) Within every local authority's area or jurisdiction it shall be an offence for any person -

(a) to erect any dwelling constructed on the back-to-back system;

(b) to erect any room intended to be used as a sleeping or living or working room which is not sufficiently lighted and ventilated by a window or windows of a total area of ten per centum of the floor area, and sufficiently ventilated by air vents and by windows capable of being opened to an extent of five per centum of the floor area, such windows and vents being so placed as to secure through or cross ventilation; or

(c) to erect any dwelling on a ground containing street sweepings, rubbish, refuse or other matter liable to decomposition until the approval of the local authority has been obtained and until also measures for safeguarding public health have been taken to the satisfaction of the local authority or environmental health officer.

(2) Any person who contravenes any provision of this section commits an offence and liable to a fine not exceeding ten thousand Emalangeni and to a further fine not exceeding fifty Emalangeni for every day during which such contravention continues after the date fixed in any written notice in respect thereof from the local authority or environmental health officer, or to imprisonment for a period not exceeding two years and such additional number of days the court may determine for the continuing offence.

Regulations and orders

150. (1) The Minister may make regulations and orders on all or any of the following matters -

(a) the inspection of land, dwellings and buildings, and for securing the keeping of the same clean and free from public health nuisance and so as not to endanger the health of the inmates or public health;

(b) the construction of buildings, including matters relating to the provision of -

(i) proper lighting and ventilation;

(ii) measures for excluding insects and vermin;

(iii) sanitary conveniences;

(iv) other matters and measures necessary or desirable to safeguard the health of the inmates and public health;

(c) the prevention of overcrowding in any dwelling or building, including the prohibition of the use of any dwelling or building or any part of a dwelling or building for sleeping purposes;

(d) the prohibition or control of the cooking, preparation or storage of food in any building or part of a building where the facilities thereof are inadequate;

(e) the periodical redecoration or painting of dwellings or other buildings and the cleansing or clearing of land attached thereto and the removal of rubbish or refuse there from by the owner or occupier of the dwellings or other buildings;

(f) the drainage of land, premises, the disposal of offensive liquids and the removal and disposal of refuse, manure and any other waste matter;

(g) the standard or standards of purity of any effluent liquid containing waste, sewage or other offensive matter which might be a danger to the public and the conditions on which such effluent may be used for irrigation or other purposes so as not to endanger the public health;

(h) the establishment and activities of factories and trade premises and workplaces which are liable to cause offensive smells or effluvia or to discharge liquid or other by-products or waste liable to cause such smells or effluvia or to pollute streams, which are otherwise liable to be a nuisance, injurious or dangerous to public health;

(i) the carrying out of health impact assessment of development projects so as to establish possible health opportunities or requirements or impacts; and

(j) the establishment of committees to ensure compliance with the provisions of this Part.

(2) Any person contravening any regulation or order made under subsection (1) commits an offence and liable to a fine not exceeding ten thousand Emalangeni or, in the case of a continuing offence, to a further fine not exceeding fifty Emalangeni for every day during which the offence continues after the date fixed in any written notice in respect thereof from a local authority, environmental health officer or any other authorised officer, or to imprisonment for a period not exceeding three years and to such additional number of days for the continuing offence.

(3) The regulations and orders made under this section may specify or prescribe offences and penalties and may further amend the amount of fines.

Offences and penalties

151. Any person who fails to comply with a requirement, order or regulation made under this Part or who contravenes a provision of this Part commits an offence and liable, on conviction, where a punishment is not stated, to a fine not exceeding fifteen thousand Emalangeni, which fine may be amended by the Minister by notice published in the Gazette, or to imprisonment for a period not exceeding three years.