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Smoking neighbour driving you up the chimney

By Isabelle Coetzee

Waking up to a lungful of second-hand smoke is the wrong way to start your Easter weekend. Even with closed windows, your neighbour’s bad habit may still reach you through the cracks.

You approach the perpetrator for a civil, one-on-one chat. You explain that second hand smoke contains more harmful chemicals than directly inhaling from a cigarette, and you appeal to them for an amicable solution.

But your neighbour won’t budge. You realise their addiction takes precedence over everything – including another person’s health.

How bad is smoking in South Africa?

At the beginning of March, the World Conference on Tobacco took place in Cape Town. Here, the American Cancer Society released a report, called the Tobacco Atlas, in which the problems of tobacco are outlined.

It states that 42,100 South Africans are annually killed by tobacco-induced diseases, such as cancer and emphysema. Despite this, 55,000 children (10- to 14-year-olds) and 6,321,000 adults (15-year-olds and older) continue to use tobacco-related products.

Have a look at the following fact sheet for more information.

Citizens only protected in public places

So how can you protect yourself from your neighbour’s second-hand smoke? First, you need to understand that the law is not on your side.

COO Emile Gerber, spokesperson for Epoq Legal, points out that action may be taken against persons found smoking in the following circumstances:

  • In a car with a passenger under the age of 12 years old
  • On premises used for childcare activities
  • In ‘partially enclosed public places’ such as balconies or parking areas
  • If the sale of tobacco products has been made to anyone under the age of 18

This is from the Tobacco Products Control Amendment Act 23 of 2007, which prevents individuals from smoking tobacco products in public places. However, no provision is made for individuals who are forced to endure second-hand smoke from their neighbours.

Within the next month, new smoking regulations will be implemented in South Africa. But none of these amendments are directed towards neighbours who harm others with their second-hand smoke.

If you would like to take the matter further, Gerber suggests collecting photographic evidence of your neighbour smoking – even if it’s just captured on a mobile phone.

“You can report the incident to an Environmental Health Officer at your local health department who has the authority to act under the Criminal Offences Act,” he explains.

The role of Conduct Rules

If you live in an apartment block, you and your neighbours will be subjected to certain rules of conduct – most likely included in your residential contract.

These rules may already include certain regulations that prohibit smoking in common areas. It’s important to note, though, that (unless explicitly stated in their contracts) residents cannot be prevented from smoking inside their apartments.

If your neighbour’s second-hand smoke is disturbing you, find out whether the apartment’s Conduct Rules prohibit this behaviour. If it does not, contact your body corporate or estate agency to find out whether such a clause can be added to the Conduct Rules.

This article has been prepared for information purposes only and does not constitute legal advice, or a legal opinion. The practical application of the provisions of this article will vary depending on the facts of each case. The publication, author of the article and companies or individuals providing commentary cannot be held liable in any way.

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