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[2010] ZAGPPHC 286
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Heinrich N.O and Others v Eagle Canyon Golf Estate (Pty) Limited and Another (131881009) [2010] ZAGPPHC 286 (30 April 2010)
IN THE NORTH
GAITENG HIGH COURT OF SOUTH AFRICA PRETORIA
Case
No: 131881009
DATE:
30 APRIL 2010
SPATH. JOffANNES
CARLE HEINRICH
N.O
...............................................
First
Applicant
SPATII. GESIE
MARIA N.O.
…...................................................................
Second
Applicant
KNOET7.E, M \RIUS
VICTOR
N.O
..............................................................
Third
Applicant
ALLAN. JOHN
ADRIAN
N.O.
......................................................................
Fourth
Applicant
NEL, DANIEL
BEN
..........................................................................................
Fifth
Applicant
RFYNECKE. SC HA
I. K
JACOBI'S
..............................................................
Sixth
Applicant
DF. WET CO(P n )
LTD
..............................................................................
Seventh
Applicant
AGAINST
EAGLE CANYON GOLF
ESTATE (PTY) LIMITED
...............................
First
Respondent
EAGLE
INTERNATIONAL GOLFMANAGEMENT(PTY) LTD
.......
Second
Respondent
CORAM SAPIRE. AJ
REASONS
On the 23"1 of
March 2010 I dismissed the application for Leave to Appeal against
the order made by me on the I91'' of February
2010 This latter order
was supported by a
written judgment to
which I refer The judgment covers all the points which were raised at
the hearing of the Opposed Application
The order I made is
in effect an order requiring the Respondents to abate a nuisance
caused by misdirected golf balls emanating
from the property owned or
used by the Respondents
That such a nuisance
existed is clear from the admission by the Applicants who were the
Respondents in the original application
In paragraph 11 of the
Replying Affidavit reference is made to "more appropriate
solutions to the 'problem The Respondents
without acknowledgement of
liability have discussed the solution without am agreement have been
reached
The Respondents go
on to say that the principal reason why the discussions have failed
is not because the Respondents are not prepared
to find a solution
but because the Applicants do not wish to make a more than nominal
contribution to the costs thereof
The deponent went on
to say that in attempting to find a workable solution he had on
behalf of the Respondents made a number of
changes to the routing of
the lb"' hole with a view to eliminating the possibility of golf
balls finding their way 10 the
Applicant's houses
The Affidavit then
describes the proposed solution which the Deponent co the Affidavit
considered would be effective
In the light of this
the order I made requires the Respondents to do no more than put its
solution into effect What it cannot demand
is that the Applicants
contribute to the costa
The principle
involved is that the owner or user of land on which or from which a
nuisance is caused is obliged to abate that nuisance
1 do not think that
another court will come to a conclusion diffeient from that to which
I came and that accordingly there is no
reasonable prospect on appeal
S W SAPIRE
ACTING JUDGE
NORTH GAUTENG HIGH COURT
Attornevs For
Clio Applicants: Goodrickes Attorneys
C/O Messrs
Stegmann Inc
Ist FLoor. Celtis
PLAZA
South Block
1085 Schoentiin
Street
HATFIELD
Tel: 012-342 6430
pplicant's
Counsel: Adv A J Troskie (SC)
Attorney’s
for the Respondent: Messrs Ramsay Webber
c/o Adams and
Adams Attorneys
Adams & Adams
Place
1140 Prospect
Street
HATFIELD
PRETORIA
Tel: 012-481 1508
Ref: GWW ALB
S287D9
Respondent's
Counsel: Adv Ripp