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[2007] ZASCA 167
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Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others (673/06) [2007] ZASCA 167; [2007] SCA 167 (RSA); [2008] 2 All SA 1 (SCA); 2008 (3) SA 134 (SCA) (29 November 2007)
Links to summary
REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 673/06
Reportable
In
the matter between:
ALLACLAS
INVESTMENTS (PTY) LTD ................................ FIRST
APPELLANT
ALEXANDER
SIMONIS S................................ ECOND APPELLANT
and
MILNERTON
GOLF CLUB
................................
FIRST
RESPONDENT
ROBERT
GL STELZNER ................................ SECOND RESPONDENT
SUSAN
STELZNER ................................ THIRD RESPONDENT
STEPHEN
MORIARTY ................................ FOURTH RESPONDENT
LIYAQUAT
ALLIE PARKER ................................ FIFTH RESPONDENT
GAIL
TUNESI ................................ SIXTH RESPONDENT
CORAM
:
FARLAM, BRAND, MLAMBO, COMBRINCK JJA et MHLANTLA AJA
HEARD
:
5 NOVEMBER 2007
DELIVERED
:
29 NOVEMBER 2007
SUMMARY:
Neighbour law –
nuisance – golf course – reasonable steps to avoid
excessive strikes by badly hit golf balls.
Neutral
citation: This judgment may be referred to as
Allaclas
Investments (Pty) Ltd & Another v Milnerton Golf Club &
Others
[2007]
167 SCA (RSA).
__________________________________________________
JUDGMENT
__________________________________________________
FARLAM JA
[1] This is an appeal
from a judgment of Traverso DJP, sitting in the Cape High Court,
refusing an application brought by the appellants
for an order
interdicting the first respondent from permitting the use of the
sixth hole on the Milnerton Golf Course for the playing
of golf until
it introduces effective measures to avoid or reduce the danger of
badly aimed golf balls striking the first appellant’s
property.
[2] The judgment of the
learned judge in the court
a
quo
has
been reported: see
Allaclas
Investments (Pty) Ltd v Milnerton Golf Club (Stelzner and others
Intervening)
2007
(2) SA 40(C).
[3] The first appellant,
Allaclas Investments (Pty) Ltd, is the owner of a dwelling house
situated at 32 Tanglewood Crescent, erf
27482, Milnerton, otherwise
known as Sunset Links, Milnerton, which is occupied by the second
appellant, who is a director of the
first appellant, and his wife and
children. The property is adjacent to the fairway of the sixth hole
at the golf course, which is
owned and controlled by the first
respondent, the Milnerton Golf Club.
During the course of the
proceedings in the court
a
quo
five
persons, who owned other properties adjoining the golf course, were
given leave to intervene. They were cited as respondents
in the
appeal but as they took no part therein it is unnecessary to make
further reference to them.
[4] The golf course,
which has been in existence since 1925, was originally leased by the
first respondent from its then owner, Milnerton
Estates (Pty) Ltd. In
April 1994 Milnerton Estates (Pty) Ltd applied for the rezoning of
certain land which was part of the property
on which the golf course
is situated in order that a residential township, to be known as
Sunset Links Residential Estate (which
I shall call in what follows
‘Sunset Links’) could be established thereon. The
application was approved in July 1995.
The portion of land on which
the existing golf course is situated remained zoned for private open
space purposes. Thereafter in December
1997 the local authority
approved a subdivision application providing the detailed residential
layout and the extent of the land
use rights for Sunset Links. As a
result of this the first appellant’s property was zoned for
single residential purposes.
[5] On 18 March 2002 the
first appellant purchased erf 27482 Milnerton, and in March 2003 the
second appellant and his family moved
into a dwelling house which
they had had built on the property.
[6] The property is
situated approximately half-way along the fairway, which in that
vicinity runs parallel to the ocean in a strip
of land about 60
metres wide between the property and the sea. The sixth hole is a par
five, approximately 400 metres long. The garden
and outdoor living
area of the property are situated adjacent to the fairway.
[7] After the second
appellant and his family moved into the property they became aware
that it was, as their counsel put it in the
course of his argument,
‘subject to a high incidence of strikes by badly aimed golf
balls struck off the tee of the sixth hole’.
It appears from
the papers that the total of such ‘badly aimed’ golf
balls which found their way on to the property during
the period from
December 2003 to March 2006 was 875. It appears further from the
papers that while there were what can be described
as quiet period
there were also busy periods. Indeed the second appellant’s
evidence that golf balls are hit on to the property
with such
regularity that the second appellant’s family’s ability
to use it in a normal fashion is significantly affected
is not
challenged.
[8] It is also relevant
to note that during August 2003 the second appellant caused a 4.7
metre high net to be constructed around
the western and southern
aspect of the property but this did not prevent golf balls from being
struck on to the property, as the
high incidence of strikes
thereafter shows.
[9] Both Mr Bruce Weller,
the appellants’ expert, and Mr Philip Jacobs, the first
respondent’s expert, were agreed that
there was what was
described as a ‘safety issue’ at the sixth hole which
called for a solution.
[10] In a part of his
report which was not criticized by Mr Jacobs, Mr Weller identified
the following seven safety concerns:
’
1. 32 Tanglewood Crescent lies
just 35.7m from the centre of the fairway. As a rule of thumb 60m to
80m is more appropriate.
2. The house is situated on the right
side of the fairway at between 184m and 250m from the tee. This is
the prime landing zone for
most average to poor golfers.
3. The house lies well within the 15
degree zone either side of the perceived line of play where the
majority of golf balls land (92%).
4. The tee shot is narrow with severe
penalty down both sides of the fairway. Difficult drives often have
the effect of making the
golfer tense up which more often than not
results in a shot pushed out to the right.
5. The presence of an inanimate object
such as a house does not alert the golfer to possible injury risk in
the same way that the
presence of, say, a walker on a footpath near
the landing zone would. Neither the golfer teeing off nor the
house-owner [is] able
to see one another.
6. The hole lacks any space either
side to ”design in” a more comfortable or obvious target
area (i.e. there is little
clearly defined space for the golfer to
aim, which frequently results in a poorly executed swing).
7. Being a relatively short par five,
its “Heroic” nature will actually encourage golfers to
take a driver and try and
get on or as near as possible to the green
in two. Additionally the [hole] actually gets wider and therefore
easier the longer the
tee shot.’
To this he added what he
called four ‘outside’ influences, as follows:
‘
There has been a dramatic
increase in club and ball technology in the last ten years, allowing
golfers to hit the ball not only much
further but higher. This has
unfortunately greatly increased the span of error.
The majority of golfers slice the ball
to the right.
The golf course is quite exposed and
windy, which both increases the degree of error and the amateur’s
ability to swing consistently
and accurately (balance speed).
Casual and corporate golf is on the
increase as clubs strive for a share of what is an increasingly
competitive market. Such golfers
tend to be infrequent players and as
such more prone to errant shots.’
[11] He suggested a way
of solving the problem which involved changing the hole to a par 4
dog-leg with an entirely new tee location.
[12] Mr Jacobs was of the
opinion that the solution to the problem in relation to the sixth
hole proposed by Mr Weller was far more
drastic than is necessary in
the circumstances. He suggested three alternative solutions, the
first of which being in his opinion
the most suitable. This solution
involves the erection of a system of barriers (preferably trees or
vegetation or netting which is
see-through) just in front of and to
the right of the regular tee, in a particular position and at a
particular height, which would
intercept virtually all golf balls
that start off at an angle which would otherwise see them ending up
in the houses to the right
of the sixth hole as it plays. He pointed
out that the first respondent had already planted trees so positioned
that they would act
as an effective barrier in 3 to 5 years when they
had grown to a sufficient height. In the interim, he said, while the
trees are
growing, the first respondent could implement a netting
system as more fully described in his affidavit. His conclusion was
that
this solution should be implemented.
[13] Counsel were agreed
that the main issue to be decided was whether the conduct of the
first respondent in the circumstances was
unreasonable and therefore
unlawful. As appears from her judgment the learned judge in the court
below (see para 25 of her judgment)
found that the first respondent
had not interfered unreasonably with the rights of the appellants.
Her reasons for coming to that
conclusion appear from paras 15 to 24
of her reported judgment and need not be repeated here. It is
relevant, however, to point out
that part at least of her reasoning
was based on a consideration of the attitude of the second appellant
as it was expressed in the
papers before her. She found that the
action the appellants expected the first respondent to take was
unreasonable and that they
were not prepared on their side ‘to
take reasonable steps to alleviate the situation’.
[14] In para 17.5 she
said that the first respondent had adopted the measure of playing the
6
th
hole as a par 5 on
Wednesdays and Saturdays, and as a par 4 on all other days. This,
counsel were agreed, was incorrect. The first
respondent had
initially done this but subsequently, in reaction to pressure from
its members, it changed the hole back to a 5 par.
[15] Mr
Binns-Ward,
who
appeared on behalf of the appellants, based his argument on three
passages in the judgment delivered in this court by Steyn CJ
in
Regal
v African Superslate (Pty) Ltd
1963
(1) SA 102
(A) which, as Professor DP Van der Merwe put it in his
valuable thesis
Oorlas
in die Suid-Afrikaanse Reg
(LL.D.,
University of Pretoria, 1982) at 537, was the first attempt in a
judgment to give a comprehensive survey of the common law
principles
in respect of civil law nuisance situations. The passages on which Mr
Binns-Ward
relied are to be found at
106H-107B, 107E-G and 110F-H and read (in my translation) as follows:
1. ‘[106H-107B] We are concerned
here in the main with what can be called neighbour law. As a general
principle everyone can
do what he wishes with his property, even if
it tends to be to the prejudice or irritation of another but as
concerns adjacent immovable
property it almost goes without saying
that there is less room for unlimited exercise of rights. The law
must provide regulation
of the conflicting proprietary and enjoyment
interests of neighbours and it does this by limiting proprietary
rights and imposing
obligations on the owners towards each other.
Some of the limitations arise directly from the fact that an owner’s
rights of
ownership end on his boundaries (Dernburg
System
1
par.
162). Although it is not a rigid rule it is not permitted for him to
perform an action which causes something to come on to his
neighbour’s land or has a direct result thereon. He acts for
example wrongfully if he breaks stones on his property in such
a way
that chips fall on his neighbour’s land (Dig 8.5.8.5) . . .’
2. ‘[107E-G] The usual
disturbance by smoke one has to endure from the other, but not
excessively (Dig 8.5.8.5 and 6). So also
the normal dampness caused
by a bath against a common wall, but not constant moisture which
arises from all too frequent use thereof
(Dig 8.2.19). It is obvious
that the same principle would be able to find application as regards
other disturbances such as noises
or smells. (Cf Christenaeus,
In
Leg Mechl
14.29; 14.32 and
33; 14.43). In
Malherbe v
Ceres Municipality,
1951
(4) SA 500
(A.D) at p 517, it is accepted
“
that the consequences of the
usual use of a piece of ground by its owners cannot be regarded as an
unlawful interference of his neighbour’s
land”.’
3. ‘[110F-H] It is not alleged,
and it would scarcely be able to be maintained that exploitation of
slate quarries in this area
is an unusual use of land. That would
however, not be conclusive without more. Also the manner in which he
did it would be relevant.
To break stones on a piece of ground is not
an unusual activity and also not to plant trees. As appears from the
sources cited both
can, however, lead to liability. According to
Malherbe v Ceres
Municipality, supra,
at p
518, a neighbour would be able to claim that overhanging branches
that block his gutters be removed. This is in accordance with
the
principle that he may not use his ground in such a way that objects
such as dangerous objects come therefrom beyond his boundaries
on to
his neighbour’s land. Thereby he would, unless it falls under
the usual reciprocal burdens which one neighbour must endure
from the
other, infringe his neighbour’s rights of enjoyment, even if
his own use, regarded in general, is not an unusual one.’
[16] Mr
Binns-Ward
referred
to the fact that Traverso DJP had (in para 15 of her judgment) quoted
with approval a passage from an unreported judgment
delivered by
Sheppard AJA in the New South Wales Court of Appeal in
Campbelltown
Golf Club Ltd v Winton
[1998]
NSWSC 257
and pointed out that immediately after the passage quoted
Sheppard AJA said:
‘
But what they were not bound to
accept was a situation such as was suffered by the respondents in
which their property was peppered
with golf balls on a daily basis,
thus posing a threat, not only to the respondents’ property but
also to their physical safety.
The golf course was obliged so to
construct the hole as to divert balls hit normally away from their
property. This could be done
by resiting the direction of the hole or
by appropriate screens, whether natural or artificial, or a
combination of both as indeed
has apparently happened.’
[17] The whole passage
from Sheppard AJA’s judgment, including the portion not cited
by Traverso DJP, as Mr
Binns-Ward
submitted (correctly in
my view), when considered as a statement of what might reasonably be
expected between a golf course owner
and its residential neighbours,
reflects precisely what a South African court would have held in the
closely analogous factual circumstances
of this case.
[18] The evidence in my
view, establishes a sufficiently high incidence of badly aimed golf
balls entering the first appellant’s
property to entitle the
appellants to relief. I cannot agree with the comment made by
Traverso DJP (in para 20 of her judgment) that
the appellants ‘have
failed to show that . . . the number of golf balls exceeds what could
reasonably have been expected by
them to strike their property’.
This comment is based on her earlier statement that
‘
a large portion of the golf
balls found on the property were merely found on the property at
various places. The [appellants] could
not in respect of those golf
balls submit that they were deflected in a manner which would lead to
the conclusion that they were
likely to have caused material damage.’
[19] I do not agree with
that statement. It will be recalled that from August 2003 a 4.7 metre
high net has been in position around
the western and southern aspect
of the property. It follows that at least since August 2003 every
golf ball that has come onto the
property must have been struck over
this net. It follows further that all these balls must have come
there in circumstances where
they were likely to cause damage to any
property they came into contact with or any person who was in their
path of travel. In fact,
according to the respondent’s own
records of golf ball strikes on the first appellant’s property
from November 2004 to
January 2005, 21 of the 57 strikes counted by
the first respondent’s ball counters were observed going into
the swimming pool.
The papers contain a photograph of the effect of a
golf ball strike on the pool cover fitted for child protection, which
provides
graphic illustration of what the second appellant and his
family have been subjected to.
[20] I am accordingly
satisfied that the amount of golf balls entering the first
appellant’s property was clearly excessive
and unreasonable in
all circumstances.
[21] I accept that the
first respondent’s use of its land for a golf course does not
constitute unusual use. It is also correct,
as
Mr
Binns-Ward
readily
conceded, that it would be reasonable for the appellants ‘to
tolerate some ingress of badly hit golf balls’. (Cf
De
Charmoy v Day Star Hatchery (Pty) Ltd
1967
(4) SA 188
(D) 192A-B.) But what they have had to endure clearly goes
substantially further than what a neighbour is obliged to put up with
on the application of the principle of ‘give and take, live and
let live’, which forms the basis of our law on this point:
see
Assagay
Quarries (Pty) Ltd v Hobbs
1960
(4) SA 237
(N) at 240 G,
Cosmos
(Pvt) Ltd v Phillipson
1968
(3) SA 121
(R) at 126 H and
Lawsa
(1
st
reissue) par 189 (a
passage approved by this court in
PGB
Boerdery Beleggings Edms Bpk v Somerville 62 (Edms) Bpk
[2007]
SCA 145 (RSA) at par 9). It is true, as pointed out by Traverso DJP,
that the land in question has been used as a golf course
since 1925
and that the first appellant knew at the time of the property was
purchased that it was adjacent to a golf course and
would be
susceptible to being hit by golf balls. But even if that is relevant,
which I am prepared to assume for present purposes,
it is clear that
the appellants did not know that the hole was badly designed and gave
rise to the safety concerns expressed by Mr
Weller and not disputed
by Mr Jacobs.
[22] As regards the
remedy to which the appellants are entitled,
Mr
Binns-Ward
submitted
that the court should order the first respondent to implement the
first solution suggested by its own expert, Mr Jacobs,
and which he
said in his report should be implemented.
[23] Mr
Newdigate,
who
appeared with Mr
Kantor
for the
first respondent, stated that his client was prepared to consent to
an order in the terms proposed by Mr
Binns-Ward
(which
are set out in para 25 below), which involves the implementation of
Mr Jacobs’s preferred solution. He contended, however,
that,
subject to this order, the appeal should be dismissed with costs.
[24] I do not agree. The
first respondent came to this court to defend a judgment in which the
court
a
quo
held
that it had not interfered unreasonably with the appellants’
rights and that the appellants’ application for an appropriate
interdict had to be dismissed. I am satisfied that there was (and
will continue to be) an unreasonable interference with the
appellants’
rights unless an interdict, based on the first
respondent’s own expert’s opinion, is granted. The appeal
in the circumstances
has to be upheld and costs must follow the
result.
[25] The following order
is made:
1. The appeal is upheld
with costs;
2. The order of the High
Court dismissing the application with costs is set aside and replaced
by an order in the following terms
:
‘
(i) The application is upheld
with costs, including the qualifying costs of Mr Bruce Weller.
(ii) The First Respondent (the
Milnerton Golf Club) is interdicted from permitting the use of the
sixth hole on the Milnerton Golf
Club’s golf course until such
time as it implements a system of barriers near the tee off position
in accordance with the system
described at paragraphs 12-14 of the
affidavit of Phillip Jacobs, iurat 3 March 2006.
(iii) The operation of the interdict
granted in terms of paragraph 2.2 above is suspended for a period of
one month from the date
of this order in order to afford the First
Respondent an opportunity to implement the necessary measures.’
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
BRAND
JA
MLAMBO
JA
COMBRINCK
JA
MHLANTLA
AJA