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Fences and Walls By-law, 2009

Fences and Walls By-law, 2009
This is the latest version of this By-law.
Jurisdiction
Bergrivier
Date
9 November 2009
Language
English
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Bergrivier
South Africa

Fences and Walls By-law, 2009

In terms of and under the provisions of section 156 of the Constitution of the Republic of South Africa, 1996, the Bergrivier Municipality, enacts as follows:—

1. Interpretation

In this by-law, unless the context otherwise indicates—"alter" includes to cause, allow or permit to be altered;"agent", in relation to the owner of a property, means a person appointed by the owner of the property—(a)to receive rental or other payments in respect of the property on behalf of the owner; or(b)to make payments in respect of the property on behalf of the owner;"boundary" means the real or notional line marking the limits of premises;"erect" includes to cause, allow or permit to be erected;"fence" means—(a)any fence, together with any gate or any contrivance forming part or serving the purpose of such a gate, erected as a boundary between any erven, lots or stands within the municipal area;(b)a fence which is not erected on a boundary, such as a garden fence or a free-standing wall on an erf, lot or stand; or(c)a retaining wall erected on the boundary between two or more properties."ground level" means the natural level of the ground, except where such level has been disturbed, in which case the street level is to be regarded as the ground level;"municipality" means the Municipality of Bergrivier established in terms of Section 12 of the Municipal Structures Act, 117 of 1998, and includes any political structure, political office bearer, councillor, duly authorised agent or any employee acting in connection with this by-law by virtue of a power vested in the municipality and delegated or sub-delegated to such political structure, political office bearer, councillor, agent or employee;"public land" means land the ownership of which is vested in an organ of state;"repair" has the meaning assigned to it in the Fencing Act, 1963 (Act 31 of 1963);"rural settlement" means any area outside the urban edge of a township which is utilised for residential purposes and includes, but is not limited to agri villages, Transnet property, Safcol settlements, mining settlements and townships to which the Rural Areas Act, 1987 (Act 9 of 1987) applied;

2. Principles and objectives

The Municipality, aware of its duty to provide a safe and healthy environment, in this by-law regulate fencing with the aim of safeguarding its residents and visitors to the area.

3. Application

Subject to the provisions of the Fencing Act, 1963 (Act 31 of 1963), as well as the applicable Zoning Scheme Regulations of the Municipality, the provisions of this by-law relating to an electrical fence, barbed wire and razor wire do not apply to land zoned for agricultural purposes, except where such electrical fence, barbed wire or razor wire is erected on the boundary between the agricultural land and public land or residential premises forming part of any township or a rural settlement.

4. Fences

(1)No person may, without the consent of the municipality, and subject to any conditions imposed by the municipality, on a boundary of premises—
(a)erect a fence which is more than 2 metres in height from ground level;
(b)alter or make an addition to an existing fence which is more than 2 metres in height from ground level;
(c)erect or may have on a boundary, an electrified fence, electrified railing or other electrified barrier, unless it—
(i)is erected on top of a wall which may not be less than 1,8 metres high and built of brick, cement, concrete or similar material; and
(ii)it complies with the Electrical Machinery Regulations, as published in Government Notice R1593, dated 12 August, 1988; and
(d)erect a barbed-wire fence, railing, or other barrier with spikes or other sharp or pointed protrusions unless it is erected on top of a wall of not less than 2 metres in height.
(2)A person who wishes to obtain the consent of the municipality must submit an application form similar to the form contained in the Schedule A, and the municipality may refuse or grant consent.
(3)Should the municipality refuse permission, it must supply the applicant in writing with the reasons for the refusal.
(4)Should the municipality grant consent, it may impose conditions, requirements or specifications according to each individual case, subject to the provisions of SANS Code No. 1372 relating to Prefabricated Concrete Components for Fences, and the consent must be entered in Item C of the form referred to in subsection (2), and a person who has obtained consent, must at the request of an authorised official, immediately produce the form.
(5)A person who has obtained consent in terms of subsection (4) must ensure that the fence is maintained in a good condition.
(6)No person may—
(a)without the prior written consent of the municipality demolish, interfere with or damage a fence for which consent has been granted in terms of subsection (4);
(b)having opened a gate in a fence, leave such gate open or unfastened;
(c)climb over or crawl through a fence without the permission of the owner or occupier of the land;
(d)erect a fence covered with—
(i)canvas, reeds, grass or any combustible material, except poles or split poles, or approved wood, within 4,5 metres of any street; or
(ii)sheet iron, corrugated galvanised iron or any other sheeting along or within 4,5 metres of any street;
(e)allow a fence to fall into disrepair; and
(f)affix to or allow to be affixed to a fence any posters, placards or similar notices, or draw or apply anything on a fence unless it is done so in terms of the Advertising and Signage By-law.
(7)The municipality may, whenever it appears that, in the interests of safety—
(a)a fence needs to be erected or repaired, instruct the owner or occupier on whose premises such fence needs to be erected or repaired, to undertake such steps as stipulated in the instruction; or
(b)the height of a wall, hedge or fence at a street corner needs to be reduced, by order in writing instruct the owner or occupier property to reduce the height of such wall, hedge or fence to a height specified in such order.
(8)A person commits an offence if he or she contravenes a provision of subsections (1) and (6) or fails to produce a form at the request of an authorised official as contemplated in subsection (4).
(9)Should a person fail to comply with a provision of subsection (1), with a condition, requirement or specification contemplated in subsection (4), or subsection (5) or an instruction issued in terms of subsection (7), the municipality may serve a notice of compliance or a demolition order on the person.

5. Offences and Penalties

A person who contravenes any provision or fails to comply with any provision of this by-law commits an offence and shall on conviction be liable to—
(a)a fine or imprisonment, or either such fine or imprisonment or to both such fine and such imprisonment and,
(b)in the case of a continuing offence, to an additional fine or an additional period of imprisonment or to such additional imprisonment without the option of a fine or to both such additional fine and imprisonment for each day on which such offence is continued and,
(c)a further amount equal to any costs and expenses found by the court to have been incurred by the municipality as result of such contravention or failure.

6. Notice of compliance and representations

(1)Where a person contravenes a provision of this by-law, the municipality may in writing issue a compliance notice and serve it on the person concerned to take remedial measures.
(2)The notice of compliance must state—
(a)the name and residential or postal address of the affected person;
(b)the requirement which has not been complied with;
(c)detailed measures required to remedy the situation;
(d)that the person must within a specified period take the measures to comply with the notice and to complete the measures before a specified date; and
(e)the right to appeal as contained in section 10.
(3)Where a person does appeal and fails to take the measures before the date contemplated in subsection (2)(d), he or she commits an offence, and the municipality may, irrespective of any penalty which may be imposed under section 5, act in terms of subsection (4).
(4)The municipality may take such measures as it deems necessary to remedy the situation, including obtaining a demolition order contemplated in section 8, and the cost thereof must be paid to the municipality in accordance with section 7.

7. Costs

(1)Should a person fail to take the measures required of him or her by a notice of compliance, the municipality may, subject to subsection (3) recover, as a debt, all costs incurred as a result of it remedying the situation from that person and any or all of the following persons:
(a)the owner of the land, building or premises; or
(b)the person or occupier in control of the land, building or premises or any person who has or had a right to use the land at the time when the situation came about.
(2)The costs recovered must be reasonable and may include, without being limited to, costs relating to labour, water, equipment, administrative and overhead costs incurred by the municipality under section 6(3).
(3)If more than one person is liable for costs incurred, the liability must be apportioned as agreed among the persons concerned according to the degree to which each was responsible for the emergency resulting from their respective failures to take the required measures.

8. Demolition order

(1)A person on whom a demolition order has been served must demolish the fence and remove the materials.
(2)Should the municipality demolish a fence, it may dispose of the whole or any part of the materials from any fence by public auction or public tender.
(3)The municipality may deduct from the proceeds of any materials disposed of the costs of any pulling down, removal or demolition and the costs incurred of disposal and will thereafter pay any balance to the owner of the fence removed or demolished.

9. Authentication and service of notices and other documents

(1)An order, notice or other document requiring authentication must be signed by the municipality.
(2)Any notice or other document that is served on a person in terms of this by-law, is regarded as having been served when it is served in accordance with section 115(1) of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000).
(3)Service of a copy shall be deemed to be service of the original.
(4)Any legal process is effectively and sufficiently served on the municipality when it is delivered to the municipal manager or a person in attendance at the municipal manager’s office.

10. Appeal

A person whose rights are affected by a decision of the municipality may appeal against that decision by giving written notice of the appeal and the reasons therefor in terms of section 62 of the Local Government: Municipal Systems Act, Act 32 of 2000 to the municipal manager within 21 days of the date of the notification of the decision.

11. Implementation and enforcement

(1)The municipality may appoint an official to administer the implementation and enforcement of this by-law.
(2)A person commits an offence if he or she—
(a)hinders or interferes with an official in the execution of his or her official duties;
(b)falsely professes to be an official;
(c)furnishes false or misleading information when complying with a request of an official; or
(d)fails to comply with a request of an official.

12. Saving and transitional provision

An owner or occupier whose premises, at the date of commencement of this by-law, do not comply with the provisions of this by-law must, within a period of 6months, ensure that his or her premises comply with the provisions of this by-law.

13. Exemptions

(1)Any person may in writing apply to the municipality for exemption from any provision of this by-law.
(2)The municipality may—
(a)grant an exemption in writing and set and determine the period for which such exemption is granted;
(b)alter or cancel any exemption or condition in an exemption; or
(c)refuse to grant an exemption.
(3)An exemption does not take effect before the applicant has undertaken in writing to comply with the conditions imposed by the municipality, however, if an activity is commenced before such undertaking has been submitted to the municipality, the exemption lapses.
(4)If any condition of an exemption is not complied with, the exemption lapses immediately.

14. Liaison forums in community

(1)The municipality may establish one or more liaison forums in a community for the purposes of obtaining community participation with regard to the matters dealt with in this by-law.
(2)A liaison forum may consist of—
(a)a member of members of an interest group, or an affected person;
(b)a designated official or officials of the municipality; and
(c)a councillor.
(3)
(a)The municipality may, when considering an application for consent, permit or exemption in terms of this by-law, request the input of a liaison forum.
(b)A liaison forum or any person contemplated in sub section (2) may on own initiative submit an input to the municipality for consideration.

15. Conflict with other legislation

In the event of any conflict between any provision of this by-law and National and Provincial legislation, standards, policies or guidelines, the National and Provincial legislation, standards, policies or guidelines shall prevail.

16. Revocation of by-laws

The provisions of any by-laws previously promulgated by the municipality or by any of the disestablished municipalities now incorporated in the municipality, are hereby repealed as far as they relate to matters provided for in this by-law

17. Short title and commencement

This by-law shall be known the Fences and Walls By-law, and commences on the date of publication thereof in the Provincial Gazette.

Schedule A (Section 4(2))

Application to erect fence

A. Owner or occupierSurname and first names of person............................................................................................................................................................................I.D. Number ......................................................................................................................................................Address: Postal address:....................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Residential address:....................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Telephone number: Business ...........................................................................................................................Residential ........................................................................................................................B. Particulars of premises and fenceErf Number .......................................................................................................................................................Address where the premises can be inspected........................................................................................................................................................................................................................................................................................................................................................

Nature of fence to be erected/altered

....................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................C. Issuing local authorityConsent is hereby granted in terms of section 4(4) of the Bergrivier Fences and Fencing By-laws that the above-mentioned fence may be erected on above-mentioned premisesConditions, requirements or specifications in terms of section 4(4):............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Signature of inspector Date............................ ............................. ............................ ............................ ............................Name of inspector:...................................................................................... .Official designation:......................................................................................

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