Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others (8552/04) [2006] ZAWCHC 36; 2007 (2) SA 40 (C) (24 August 2006)

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[2006] ZAWCHC 36
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Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others (8552/04) [2006] ZAWCHC 36; 2007 (2) SA 40 (C) (24 August 2006)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: 8552/04
In the matter between:
ALLACLAS INVESTMENTS
(PTY) LTD First Applicant
ALEXANDER SIMONIS
Second Applicant
and
MILNERTON GOLF CLUB
Respondent
R.G.L. STELZNER &
4 OTHERS Intervening Parties
JUDGMENT
: 24 AUGUST 2006
TRAVERSO,
DJP :
[1]
The applicants in this matter are all owners/occupiers of
properties bordering on the Milnerton Golf Course (“MGC”).
[2]
The MGC is a body corporate with an existence independent of its
members. The Milnerton Golf Course has been in existence since
1925.
The land upon which the course is situated was leased by the MGC from
the owner until the early 1990’s, when the owner of
the land
decided to develop that part of the land adjoining the golf club
which did not form a usable part of the golf course. Pursuant
thereto MGC acquired ownership of the land upon which the golf course
is situated and the adjoining land was turned into a residential
development known as Sunset Links.
[3]
It is common cause that Sunset Links Development was marketed on
the basis that the houses would be built on a golf course. It
is
also common cause that the golf course was a fundamental component of
the nature of the individual properties.
[4]
The first applicant purchased one of these properties during March
2002 and caused a house to be built on it. This property borders
the
fairway of the sixth hole of the golf course. The sixth hole is a
par five and is approximately 400 meters long. It is parallel
to the
ocean and is located to the north of the tee. The second applicant
and his family took occupation of the property during March
2003.
The second applicant contends that since then the property has on
several occasions been struck by golf balls hit by players
playing
the 6
th
hole.
[5]
In an attempt to alleviate the position the second applicant
caused a 4.7 meter high net to be erected around part of the
property,
but he contends this did not help. I return to this aspect
later.
[6]
The jurisprudential basis upon which the applicants’ claim is
founded is the common law of private nuisance.
[7]
In Roman Dutch law the relations between neighbours were regulated
in a peculiarly local way, with local custom, by-laws and a
system of
interlocking urban and rural servitudes playing a prominent role. In
the South African jurisprudence, English cases were
relied on
liberally. But the notion that the South African neighbour law is
based on the English Law was put to rest by Steyn, CJ
in
Regal v.
African Superslate (Pty) Ltd
1963(1) SA 102 (A) at 106:
“Ons
gemenereg behandel die onderwerp nie onder ‘n enkele rubriek wat
met die Engelsregtelike ‘nuisance’ sou ooreenstem nie.
Die
behandeling is fragmentaries en hou verband met verskillende
regsmiddels en prosedures. Sommige daarvan is nie meer gebruiklik
nie, maar dit, meen ek, is van minder belang. Van meer belang is die
substantiewe reg insake doen en late van die een waarteen die
ander
beskerm word.”
See
too
E.L. Farmers’ Association & Others v. Minister of
Education & Development Aid & Others
, 1989(2) SA 63 (A).
[8]
Although Steyn, CJ stressed that the difference between the
two common law systems should not be overlooked, Professor J.R.L.
Milton
commented as follows:
“
Since the
principles and policies of the South African action for nuisance are
substantially identical to those of Anglo-American
nuisance law, and
since the courts have always freely borrowed from this source, the
action for nuisance by way of interference with
the comfort of human
existence can be said to be based upon principles drawn from both the
civil law and English common law as shaped
and interpreted in the
judgments of the South African courts.”
LAWSA (First re-issue),
Vol. 19, para. 183, p. 128 – 129).
[9]
A dispute between neighbours invariably involves, amongst other
things, the question whether there has been an abuse of a right.
The
facts should therefore be examined to determine whether the neighbour
whose conduct is being complained of exceeded his powers
of
ownership. This issue must be answered with reference to
considerations of reasonableness and fairness (
Regal
case,
supra
at 111 F - G and H
ad fin
; 112 A - B; 114 D - E).
It has been said that an interference will become unreasonable when
it ceases to be “
expected in the circumstances”
or when it
becomes such that a neighbour need not tolerate it under the
principle of “
give and take
” or
“live and let live”
(See LAWSA, op cit supra para. 189, p. 135 - 136).
[10]
The powers of ownership extend only as far as there is a duty on
his neighbour to endure the exercise of those powers. If a neighbour
exceeds these powers he infringes the right of his neighbour. This
constitutes wrongful conduct. (See
Gien v. Gien
, 1979(2) SA
1113 (T) at 1121 A-D.) How to approach the question of balancing the
right of the owner of a property to do with his
property as he likes
and the right of the neighbour not to be interfered with will always
be difficult to establish.
[11]
In
Sedleigh-Denfield v. O’Callaghan
,
[1940] UKHL 2
;
[1940] AC 880
at
993, Lord Wright expressed himself as follows:
“A
balance has to be maintained between the right of the occupier to do
what he likes with his own, and the right of his neighbour
not be
interfered with.
It is
impossible to give any precise or universal formula
,
but it may broadly be said that a useful test is perhaps what is
reasonable according to the ordinary usages of mankind to living
in a
society, or more correctly, a
particular
society
.”
(Emphasis supplied)
[12]
From this
dictum
it is clear that what is reasonable must be assessed objectively and
with regard to the circumstances of each particular case.
[13]
Several factors have to be considered in deciding this question.
In this case the applicants accept that by virtue of the fact
that
they own/occupy a property which borders on a fairway of a golf
course, their right to free and undisturbed use of their property
will be interfered with to some extent. They accept that it would be
reasonable for them to tolerate some ingress of badly hit golf
balls.
Their complaint relates to the number of golf balls which land on
their property, which they contend is excessive, and further
that
many of the golf balls which have landed on the property have caused
damage to their home.
[14]
It is common cause
that the MGC have, without admitting liability to do so, taken
certain precautionary measures. They have planted
trees and have
caused the 6
th
hole to be played as a par 4 on all days except Wednesdays and
Saturdays. The respondent’s stance has however always been that
the applicants have not made out a case that the conduct of the golf
course constitutes nuisance.
[15]
I will therefore, as a point of departure consider whether such a
case was made out. Mr. Binns-Ward, for the applicants, placed
great
emphasis on the fact that “
coming
to the nuisance
” is
no defence in a case such as this. In this regard he referred me to
several decisions from foreign jurisdictions. See,
inter
alia
,
Campbelltown
Golf Club Ltd v. Winton & Another
,
[1998] NSWSC 257
(unreported, NSWCA CA No. 40056 of 1996) and in
particular the following
dictum
:
“Undoubtedly the
respondents bought into a subdivision which bordered a golf course.
The benefit of this to them was that they
overlooked a degree of open
space at the rear of the premises. If it were not for the problems
created by golf balls coming on to
their land, the outlook would have
been a pleasant one increasing their enjoyment of the property.
The problem with
the appellant’s submission is that it endeavours to relegate houses
built on land in the subdivision to an inferior
position to that
occupied by the golf course. In the appellant’s submission, the
golf course was the focal point. If it created
a problem for
residents, that was something which the residents had to tolerate.
That is not the law.
What was required
was that the golf course should so adjust its activities as not to
interfere unreasonably with the peaceful enjoyment
by residents of
their land. At the same time, the residents, bordering as they did a
golf course, had to accept the fact that the
game of golf was going
to be played on land adjoining their properties and that it could be
expected that from time to time some
golf balls might come on to
their land.
[16]
There is nothing contentious about the abovementioned
dictum
,
or the principles enunciated in any of the other cases to which I
have been referred. In my view none of these cases elevate “
coming
to the nuisance
” to a legal principle which is at variance with
the basic principles of the law of delict. It is, as a matter of
first principle,
clear that priority of occupation (in this case the
golf course) does not give an owner carte blanche to deprive his
neighbours of
the reasonable physical comfort of their existence on
their properties. The question will always remain whether it can be
said,
objectively and with reference to all the facts, that the golf
course acted wrongfully. There can be little doubt that the fact
that the applicants bought a property bordering the 6
th
hole of the golf course is a relevant factor to be taken into account
in assessing the reasonableness of the respondent’s actions.
In
itself, it can however never be a decisive factor.
[17]
In assessing the reasonableness of the respondent’s actions, the
following facts should, in my view, be taken into consideration:
17.1 The
fact that the respondent has conducted a golf course in Milnerton
since 1925.
The
applicants’ complaint is not that the respondent has recently
commenced using the property differently to the way in which
it has
been used for the past 80 years, i.e. for the playing of golf.
The
applicants do not suggest that any unnatural or inappropriate
activity is being carried on on the golf course. They accept
that
golf is being played on a locality designed for that purpose.
A
very important factor is that at the time when the property was
purchased, and in fact at all relevant times hereto, the applicants
knew and understood that golf would be played on the property
immediately adjacent to their property and that they would be

exposed to the consequences inherent in being in such a position.
They knew that the property would be susceptible to being hit
by
golf balls. In fact during 2002, while the construction of the
applicants’ property was in progress, the second applicant
approached certain members of the respondent while they were busy
playing golf and asked them to hit their balls into certain
windows
of the second applicant’s property in order to assess whether the
windows were armour-plated. The respondent says
that this request
was made as part of an attempt to resolve a dispute which the
applicants had with their supplier. Whatever
the situation might
be, it does not detract from the fact that the applicants were
aware of the probability that the property
would be hit by golf
balls in a manner that can cause damage, and took precautions in
this regard. This fact is inconsistent
with the second applicant’s
statement that he and/or his wife had made enquiries from people
who led them to believe that the
danger to the property was
minimal, as the property was too far from the 6
th
tee.
What
is also clear is that the respondent was prepared to go to great
lengths to try and alleviate the problem of which the applicants
were complaining of. The respondent has already planted trees
which will protect the applicants’ property once they are fully
grown. The respondent has further 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.
[18]
Subsequent to the launch of this application, an application for
intervention was brought (and granted), by certain other property
owners adjoining the 6
th
hole. This application, so it
appears, was precipitated by the fact that the proposed solution to
the first and second applicants’
complaints impacted negatively on
their rights as property owners. It is against this background that
it was submitted by Mr. Newdigate
that the stance of the applicants
which demands the respondent to make certain changes in order to
accommodate their difficulties
would result in one way or another to
the prejudice of not only the respondent, but of its neighbours too.
[19]
On the papers there are disputes as to the precise number of balls
that entered the second applicant’s property. Reliance was
placed
by the applicants on various cases from foreign jurisdictions to
support their contention that the number of golf balls entering
the
second applicant’s property are unreasonable. This exercise is not
helpful. Whether the respondent’s conduct is reasonable
or not
must be determined with reference to the facts of this particular
case. In this regard it is important to bear in mind that
the
applicants’ case relates not to golf balls merely entering its
property, but to golf balls being struck onto their property
in such
a manner that they are likely to cause damage to the property or
personal injury.
[20]
The mere fact that a golf ball enters the second applicants’
property or is found there does not, and cannot, in itself constitute
a nuisance. This is significant because analysing the evidence of
the applicants, it becomes clear that a large portion of the golf
balls found on the property were merely found on the property at
various places. The applicants could not in respect of those golf
balls submit that they were reflected in a manner which would lead to
the conclusion that they were likely to have caused material
damage.
In my view the applicants have failed to show that the respondent’s
conduct is unreasonable in the sense that the number
of golf balls
exceeds what could reasonably have been expected by them to strike
their property in the circumstances of this case.
Nor have they
shown that the damage caused to their property exceeds what can
reasonably be expected in the normal course of a property
situated on
a golf course.
[21]
The attitude of the second applicant is also significant. Firstly
the second applicant requires the respondent to reduce the length
of
the 6
th
hole from a par 5 to par 4. On the respondent’s
version (which I have to accept) all that would happen is that the
houses further
along the same hole would become more susceptible to
being hit by golf balls. In addition it would reduce the golf course
from a
72 par to a 71 par. It is significant that if the respondent
were to make the changes suggested by the second applicant it would
result in prejudice not only to the respondent, but to other
neighbours. In addition the applicants state that the 4.7 meter net
that they erected, had little effect and their property was still
subject to “
unacceptably high incidence of golf ball strikes
.”
This rather bald statement does not bear scrutiny. As a matter of
simple logic it must follow that if a net of adequate dimensions
is
erected by the applicants, it will prevent golf balls striking the
protected areas. This is also made clear in the evidence of
the
respondent’s expert witness. It appears that the applicants’
real objection to the net is that it is an eyesore which obscures
their view of Table Mountain. The applicants therefore appear to be
reluctant to take relatively inexpensive measures in order to
protect
themselves. This they cannot do.
[22]
Considerations of fairness will not permit the applicants to
simply sit back and expect the respondent to take unreasonable action
to avoid any damage to their property, while they are not prepared to
take reasonable steps to alleviate the situation. In this
regard see
Rand Waterraad v. Botma & ‘n Ander
, 1997(3) SA 120 (OPD)
at 137 F:
“Aan die
billikheidsideaal word ook uitdrukking verleen in die
Romeinsregtelike
cautio
damnum infectum
(D 39.2)
en die Romeins-Hollandse
protestatio
(Voet
39.2.15). Volgens hierdie beginsels het ‘n persoon die reg gehad
om homself teen skade wat vanaf sy buurman se grondgebied ‘n
bedreiging gevorm het, te beskerm. Doen hy geen stappe om homself te
beveilig nie het hy geen remedie teen die ingetrede skade gehad
nie.
”
Hattingh,
J continued to point out that in harmonising the property interests
of neighbouring property owners, reasonableness and
fairness were
prominent factors. In considering the reasonableness of another
actor’s conduct, his mental disposition plays an
important role.
(See
Gien v. Gien
,
supra
at 1121;
Rand Waterraad v.
Bothma
,
supra
at 134.)
[23]
As stated above, the respondent has shown its willingness to take
reasonable measures to minimise the risk of damage by golf balls
to
the applicants’ property. The applicants, on the other hand, seem
to adopt the attitude that this responsibility lies with
the
respondent alone. This is a further factor which I have to consider
in deciding whether the respondent has acted unreasonably.
[24]
Living next to a golf course brings certain benefits in relation
to the environment in which one lives. However, it also entails
a
real danger that the properties so situated will be susceptible to
being hit by golf balls. That is a risk that any reasonable
person
will accept.
[25]
In view of all the factors set out above, I conclude that the
respondent has not interfered unreasonably with the rights of the
applicants.
[26]
In view of this finding it is not necessary to deal with the
applications of the intervening parties.
[27]
In the circumstances, the application is dismissed with costs.
_____________________
TRAVERSO,
DJP
24
August 2006