Trustees of the Brian Lackey Trust v Annandale (3848/02) [2003] ZAWCHC 52; [2003] 4 All SA 528 (C); 2004 (3) SA 281 (C) (6 October 2003)

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[2003] ZAWCHC 52
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Trustees of the Brian Lackey Trust v Annandale (3848/02) [2003] ZAWCHC 52; [2003] 4 All SA 528 (C); 2004 (3) SA 281 (C) (6 October 2003)

Reportable
in the high court of South Africa
(cape of good hope provincial division)
Case No 3848/02
In the matter between:
The trustees of
the
brian lackey trust
Plaintiffs
and
stanley annandale
Defendant
judgment: delivered 6 October
2003
Griesel
J:
The
crisp issue in this case is whether or not a
‘massive
encroach­ment’
,
1
inadvertently erected by the plaintiffs on land belonging to the
defen­dant, ought to be demolished. This issue, in turn, depends
on whether or not the court has a dis­cretion to permit the
plaintiffs to retain the structure – and effectively acquire
the
defendant’s land in the process – against payment of
compen­sation to the defendant.
Factual Background
The
relevant facts are uncomplicated and largely common cause. The
plaintiffs are the trustees of the
Brian Lackey Trust
. For
conve­nience, I shall refer to the plaintiffs and the trust
jointly as
‘the plaintiff’.
The plaintiff owns erven 880
and 881, Laaiplek (sub­se­quently consolidated as erf 737).
The defendant owns the adjacent
erf 878. All three properties are
situated on the main basin of the Port Owen Marina on the West
Coast. The plaintiff acquired
the two erven during June 2000 at a
purchase price of R140 000 each, at more or less the same time
as the defendant purchased
his property for R130 000. All three
were vacant erven at that stage.
A substantial
luxury dwelling was designed for the plaintiff as a holiday and
retirement home and a building contract was entered
into at a
contract price in excess of R3 million. The intention was that,
upon com­pletion, the house would straddle the
plaintiff’s
erven 880 and 881. Building operations com­menced during
September 2001 and con­tinued until 13 or 14 May
2002, when it
was discovered (as a result of an in­spection by the local
building inspector) that the structure was actually
straddling erven
880 and 878, instead of erven 880 and 881. As can be seen from the
photo­graphs forming part of the record,
the building was by
that time at an ad­vanced stage; in fact, according to the
evidence, it was approxi­mately 9 weeks
away from com­pletion.
The cost incurred in respect of the building works up to that stage,
as certified by the plaintiff’s
architect, amounted to some
R1,75 million.
It is common cause
that the structure covers approxi­mately 80% of the sur­face
area of the defendant’s property, thus
rendering the property
com­pletely useless to the defendant in its present state.
The
plaintiff originally alleged that, from an early stage, the
defendant was aware of the encroachment, but that he
‘deliberately
refrained from informing the plaintiffs of that fact’
.
However, in his opening address, the plaintiff’s counsel expressly
abandoned this allegation, with the result that it can now
be
accepted that both parties were unaware of the true state of affairs
until it was drawn to their attention by the building inspector
during May 2002.
When
the true position was revealed to the parties, the defendant
telephoned the plaintiff’s Mr Brian Lackey (
‘Lackey’
)
and enquired what the plaintiff intended doing about the problem
which had arisen. There is a factual dispute between the parties
as
to the exact content of the telephone con­versation, to which I
shall presently return. Suffice it to note at this stage
that the
plaintiff offered to buy the defendant’s property at a price of
R250 000, which offer was unacceptable to the defen­dant.
Instead, the defendant demanded the removal of the encroaching
structure, which demand was, in turn, rejected by the plaintiff.
Both
parties subsequently consulted their respective attorneys. On 7 June
2002 the
plaintiff
’s attorney wrote to
the
defendant
’s attorney, referring to
the aforementioned telephone conversation and saying the following:
‘
Our clients’ representative, Mr Brian Lackey, spoke that day
to your client telephonically, and offered your client R250 000,00
for your client’s property, which apart from the encroachment is
unimproved land. Your client had purchased the property less
than
two years ago for R130 000,00, and our clients considered their
offer to be well in excess of the market value of your
client’s
unimproved property, and indeed well in excess of whatever damages
your client may suffer through deprivation of that
property.
Your client’s response was to laugh at that, and to tell Mr
Lackey that unless he (your client) was paid R750 000,00 he
would
send a lawyer’s letter demanding removal of the en­croaching
building works within thirty days, and failing such removal he
would
send in the bulldozers.
…
In the light of your client’s threat to take the law into
his own hands and remove the encroachment himself, our clients would
also apply to court for an interim interdict
pendente lite
restraining such threatened conduct, unless your client under­takes
(in a manner in substance and in form to the reasonable
satisfaction
of our client) not to take any step towards removal of the
encroachment without the sanction of a court order.’
The
defendant
’s attorney responded to the
aforesaid letter on 13 June 2002, stating (
inter
alia
) the following:
‘
Our client denies that his response was to laugh at your
client’s offer of R250 000,00. During the telephone
conversation,
Mr Lackey insisted on numerous occasions that out
client should name a price which he would accept to part with his
property. Our
client initially refused to do so but on the
insistence of your client, eventually indicated that he will not
even consider an
amount of less than R750 000,00. In response
to this, Mr Lackey laughed at our client and our client also heard
laughter in
the background. Upon hearing this our client again
stressed to Mr Lackey that his property was not for sale and
insisted that the
encroachment be removed.
Our client furthermore denies threatening to send in bulldozers
but in any event hereby undertakes not to take any steps towards
removal of the encroachment without the sanction of a court order.’
This
impasse
led to the issue of summons on behalf of the
plaintiff on 26 June 2002, in which the plaintiff claimed an order –
‘
declaring the defendant to be disentitled to the removal from
erf 878 of the encroachment erected thereon by the plaintiff,
subject
to the payment of such damages (if any) as the court may
determine in these or subsequent proceedings to be pay­able by
the
plaintiff to the defendant’.
In opposition to this claim, the defendant filed a plea as well as a
counterclaim, claiming an order for the removal of all portions
of
the building erected on the defendant’s erf 878 and the
restoration of the property to its original condition.
When
the matter came to trial, the plaintiff led only the evidence of
Lackey, whereupon the defendant himself gave evidence. In
addition,
a structural engineer, Mr Burger (
‘Burger’
), as well as a
part-time estate agent, Mr Van der Sandt (
‘Van der Sandt’)
,
were also called to give evidence on behalf of the defendant.
The
main factual dispute between the parties revolved around the
tele­phone conversation between Lackey and the defendant during
May 2002, to which I have already referred. Lackey’s version
accorded with the content of his attorney’s letter, as quoted
above.
The
defendant, on the other hand,
denied this version of events, as did his attorney in the
aforementioned letter. He confirmed that Lackey offered to pay him
R250 000,
but stated that he turned down this offer, saying
that his property was not for sale. In
cross-examination of
Lackey by the defendant’s counsel
it was put
that the
defendant
’s version would be
that
‘he won’t even sell it for
anything below R750 000’
. The
defendant
also emphati­cally denied
that he uttered any threat relating to bulldozers.
I
prefer Lackey’s version of the disputed facts. His evidence in
court was consistent with the version contained in his attorney’s
letter, written shortly after the events. The attorney specifically
alluded to the
defendant’s
demand for
R750 000, coupled with the threat to
‘send
in the bull­dozers’.
So
seriously did Lackey and his attorney take the threat that an
undertaking was sought from the
defendant
that he (the
defendant)
would not take the
law into his own hands, failing which an interdict would urgently be
sought. These facts tend to lend credence
to Lackey’s version. It
has not been suggested to Lackey that he invented the alleged
threat; on the contrary, his evidence relating
to the bulldozers was
not even assailed in cross-examination.
The
defendant
’s evidence, by contrast, was
improbable, evasive and contra­dictory in various respects, as
appears from the following examples:
(a) I find it inherently improbable that the
defendant would arbitrarily fix an amount of R750 000 if his
intention was simply
to convey to Lackey that his (the
defendant’s
) property was not for sale at any
price. It is far more likely that, as argued on behalf of the
plaintiff
, the amount represents the sum
that the
defendant
thought he could
opti­mistically (though not realistically) demand without being
com­pletely exorbitant.
(b) The response from the defendant’s attorney
to the letter from the plaintiff’s attorney, as well as the
statement put to Lackey
during cross-examination,
2
also lend some support to Lackey’s version with regard to the
amount of R750 000. Far from saying that his property was not
for sale
at any price
,
the suggestion appears to be that the
defendant
would
be
prepared to consider an amount of R750 000 or more
.
(c) The
defendant
’s
evidence with regard to the partial removal of the en­croachment,
as proposed in Burger’s evidence, was extremely vague
and
ambivalent. He seemed unsure whether or not he would be prepared to
tolerate a continuing encroachment of 0,5m, which would be
the effect
of Burger’s proposal to demolish half of the
plain­tiff
’s
structure without jeopardising the structural safety of the building.
(d) The
defendant
’s
views as to the current market value of his property, viz R960 000,
is not only totally unrealistic, but is without any
foundation in
fact or reason. The highest price for a vacant plot in Port Owen to
date was in the region of R350 000 – which
was achieved some
six weeks before the trial.
Apart
from the inherent probabilities of his version, Lackey, in my view,
also made a better im­pression as a witness than the
defendant
.
I would accordingly prefer his evidence above that of the
defendant
where their versions differ.
The
weight (if any) to be attached to the fore­going facts and
circum­stances will be considered later. What needs to be
con­sidered at this stage is whether the court has a discretion
to order what in effect amounts to an involuntary
deprivation
of property in circumstances such as the present case.
Legal Position
Section 25(1) of
the Constitution
3
provides as follows:
‘
No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of
property.’
In
this context, both sides accept that, for purposes of the
Con­stitution, a
‘law of general application’
includes the common law.
4
It is accord­ingly necessary to determine whether our common law
provides for the type of discretion contended for by the plaintiff.
Unfortunately,
as Prof Milton remarked,
‘(t)his portion of the law is in a
very un­satis­factory state’
.
5
A useful starting point to a discussion of the problem in respect of
encroachments is found in
lawsa
:
6
‘
When a landowner erects a structure on his land he must take
care that he does not encroach on his neighbour’s land. This rule
of neighbour law is not only applicable in cases where the building
itself or its foundations encroach on neighbouring land but
also
where roofs, balconies or other projections encroach on the airspace
above a neighbour’s land.
In the case of encroaching structures the owner of the land which
is encroached upon can approach the court for an order compelling
his neighbour to remove the encroachment. …
Despite the above
rule the court can, in its discretion, in order to reach an
equitable and reasonable solution, order the payment
of compensation
rather than the removal of the structure
.
This discretion is
usually exercised in cases where the costs of removal would be
disproportionate to the benefit derived from the
removal.
If
the court considers it equitable it can order that the encroaching
owner take transfer of the portion of the land which has been
encroached on
. In such circumstances the aggrieved party is
entitled to payment for that portion of land, costs in respect of
the transfer of
the land as well as a
solatium
on account of
tres­pass and involuntary deprivation of portion of his land.’
(my emphasis)
Based
on the arguments addressed to me, it would appear that the parties
are
ad idem
that the court does indeed have a discretion,
in
certain circum­stances
,
to order damages instead of
demolition of encroachments. The under­lined passages in the
above-quoted extract focus on the main
area of dispute between the
parties. According to the defendant, the dis­cretion to award
damages in lieu of removal of en­croachments
is limited to
instances of trivial or minor encroach­ments; or to instances
where there has been acquiescence or waiver –
express or deemed
7
– on the part of the innocent owner. The plaintiff, on the other
hand, relying on the principles contained in the underlined
passages
above, argued that the court has a wide, equitable discretion
whether or not to grant a demolition order in
any
given case.
The
South African cases relied upon by the defendant are con­veniently
collected and discussed by Milton.
8
It is true that all those cases were concerned with less substantial
en­croachments, none of which entailed a complete deprivation
of
the innocent owner's property.
9
It is equally true, how­ever, that none of those cases decided
that the court’s discretion, as a matter of law, is
not
available in cases of more serious encroachment. More particularly,
there is no case in which the court
refused
to exercise its
dis­cretion in favour of a damages award on the basis of the
substantial extent of an en­croachment.
In
seeking to limit the court’s discretion in the manner as
indicated, the defendant sought support in English law, where the
equit­able juris­diction enabling English courts of equity
to allow damages instead of manda­tory injunctions (interdicts)
is derived from
Lord Cairns’ Act
(Chancery Amendment Act
1858, sec 2). In applying the dis­cretion conferred by that Act,
the English courts have developed
a
‘working rule’
to the
effect that where a party’s legal right has been infringed, that
party has a
prima facie
right to an injunction, and a party
will not be deprived of the remedy of an injunction save in
exceptional circumstances. But,
if the injury to the plaintiff’s
rights is small;
and
is one which is capable of being
estimated in money;
and
is one which can be compensated by a
small money payment;
and
the case is one in which it would be
oppressive to the defendant to grant an injunction, then damages in
substitution for an injunction
may be awarded.
10
Furthermore,
the English courts have indeed stated on a number of occasions that
the discretion vested in them to award damages
instead of an
injunction does not go so far as to allow a court to oblige a party
to sell his property against compensation.
11
I agree with counsel for the plaintiff, however, that these English
authorities must be ap­proached with considerable caution.
In
the first place, as noted above, the discretion of the English
courts to allow damages instead of an interdict is derived from
a
specific statute, which has no counter­part in our law.
Secondly, there are many subtle conceptual distinctions in English
law which, likewise, have no counterpart in our law. As Van der
Merwe points out,
12
‘the law of things is one of the branches of
[South
African]
law … in which the principles of English law play a
very subordinate role’
; or as Schreiner put it:
13
‘Our law of property owes little to English law.’
Be
that as it may, the English authorities themselves make it clear
that the
‘working rule’
is, in any event, not a hard and
fast rule. This appears
inter alia
from the
Shelfer
case,
where the
‘rule’
was originally enunciated and where
Lindley LJ expressed himself as follows in a concurring judgment:
14
‘
Without denying the jurisdiction to award damages instead of
an injunction, even in cases of continuing actionable nuisances,
such
jurisdiction ought not to be exercised in such cases except
under very exceptional circumstances. I will not attempt to specify
them, or to lay down rules for the exercise of judicial discretion.
It is sufficient to refer, by way of example, to
trivial
and occasional nuisances: cases in which a plaintiff has shewn that
he only wants money; vexatious and oppressive cases;
and cases where
plaintiff has so conducted himself as to render it unjust to give
him more than pecuniary relief
.
In all such cases as these,
and
in all others where an action for damages is really an adequate
remedy
– as where
the acts complained of are already finished – an injunction can be
properly refused.’
(my emphasis)
In
Jaggard v Sawyer
,
15
where the Court of Appeal remarked that the check list articulated by
Smith LJ had
‘stood the test of time’,
it was stressed
that the rule in
Shelfer’s
case was indeed only a
‘working
rule’
and that it did not purport to be
‘an exhaustive
statement of the circumstances in which damages may be awarded
instead of an injunction.’
Millett LJ formulated the test thus:
‘
The outcome of any particular case usually turns on the
question: would it in all the circumstances be oppressive to the
defendant
to grant the injunction to which the plaintiff is prima
facie entitled?’
16
Reverting
now to the position in our law, the plaintiff relied strongly on the
judgment of Hattingh J in
Rand Waterraad v Bothma en ’n
Ander
17
in sup­port of its argument for a wide, equitable discretion. In
that case, the appli­cant applied for a demolition order
against
the respon­dent in respect of certain structures that encroached
on the applicant’s land on the banks of the Vaal
River. In the
course of his judgment, the learned judge embarked upon a full and
exhaustive review of the common law authorities
and relevant case
law before concluding that the so-called
‘year-and-a-day’
rule had not been received into South African law from Roman Dutch
law.
18
He thereupon turned to consider the question whether the court had a
discretion to award damages to the aggrieved party instead
of
ordering the removal of the en­croaching structures. Upon a
review of the relevant case law, it appeared that the courts
had in
the past simply assumed that they had such a dis­cretion without
actually deciding the point. It further appeared that
when reference
was made to the existence of such a discretion, it was done in the
context of fairness.
19
The court accordingly held that, especially in the field of
neigh­bour law, considerations of reasonableness and fairness

were promi­nent factors in the exercise of the court’s
discretion. Based on the highly exceptional facts of the case, the
court exercised its dis­cretion in favour of the respondents and
against the application for a demo­lition order.
I
did not understand counsel for the defendant to contend that the
reasoning or research in the
Rand Waterraad
case was in any
way faulty, misdirected or wrong. The only argument that was
directed to me with regard to that judgment was that
the court’s
decision was based on the peculiar and excep­tional facts before
the court in that case, which facts are disting­uish­able
from the facts of the present case. That argument – valid as it
may be – does not, however, detract from the con­clusion
reached by the learned Judge with regard to the existence – in
principle – of a wide and equitable discretion, based on
considerations
of fairness and reasonable­ness, to award damages
in a given situation, rather than to order demolition of encroaching
structures.
I find myself in respectful agreement with the reasoning
and conclusion of the court in the
Rand Waterraad
case, which
conclusion finds ample support in our case law and legal
literature.
20
Moreover,
the existence of such a wide and equitable discretion is perfectly
consistent with the general approach of our law to
similar
situations, eg with regard to claims for enrichment;
21
specific performance
22
or inter­dicts.
23
In
this regard, I can see no reason in principle why the exis­tence
of the court’s discretion should be limited to cases of
‘trivial’
or
‘minor’
encroach­ments. It does not make sense, to
my mind, to allow trivial or minor en­croach­ments to
remain, while being
obliged to order removal of substantial
or
‘massive’
encroachments, as in this case. Why, one may ask
rhetorically, should the court have a discretion to order damages
instead of demolition
where the eaves of a roof encroach by 11½
inches;
24
or where a 15-storey block of flats encroaches by
‘a couple of
inches’
;
25
but
not
where it encroaches to a considerable extent, as
here?
Both
on principle and authority, I am accordingly of the firm view that
the court does indeed have a wide, general dis­cretion
– in
appropriate circumstances – to award damages instead of demolition
in respect of
any
encroachments. Having said this, however, I
recognise that such discretion cannot be completely un­fettered.
I am mindful of
the admonition expressed by Van den Heever JA in
Preller and Others v Jordaan
26
(with reference to Schorer’s Introduction to De Groot’s
Inleiding
),
‘dat 'n regter wat volgens sy gesonde
verstand, na goed­dunk en sonder regsreëls kan oordeel meer te
vrese is as honde en
slange’.
As
was said by Hefer JA in
Benson v SA Mutual Life Assurance
Society
27
in connection with the court’s discretion in the context of a
claim for specific performance:
‘…
(T)heoretically, I suppose, there may be a rule which
regulates the exercise of the court’s discretion without actually
curtailing
it but, apart from the rule that the discretion is to be
exercised judicially upon a consideration of all relevant facts, it
is
difficult to conceive of one. Practically speaking it follows
that, apart from the rule just referred to, no rules can be
prescribed
to regulate the exercise of the Court's discretion.
This does not mean that the discretion is in all respects
completely unfettered. It remains, after all, a judicial discretion
and
from its very nature arises the requirement that it is not to be
exercised capriciously, nor upon a wrong principle… It is aimed
at
preventing an injustice – for cases do arise where justice demands
that a plaintiff be denied his right to performance –
and the
basic principle thus is that the order which the Court makes should
not produce an unjust result which will be the case,
eg, if, in the
particular circumstances, the order will operate unduly harshly on
the defendant. Another principle is that the
remedy of specific
performance should always be granted or withheld in accordance with
legal and public policy…’
Exercising the court’s discretion
Against
this background, I turn to consider whether the wide dis­cretion
enjoyed by the court ought to be exercised in the plaintiff’s
favour on the facts of this case. In exercising such discretion, the
starting point, in my view, should be that an owner is ordi­narily
entitled to claim a demolition order in respect of the en­croaching
structure.
28
The primary remedy in cases of encroach­ment is, therefore, an
order for removal of the en­croachment. However, as with
claims
for specific performance, rigid enforcement of that primary reme­dy
can sometimes give rise to an unjust result and,
as appears from the
Benson
case (
supra
),
that is precisely the
raison d’etre
for the court’s dis­cretion, namely, so
as to enable the court to avoid an unjust result.
On
the evidence before me, it is clear that the only realistic
alter­native to an award for damages would be an order for the
complete
demo­lition of the plaintiff’s dwelling. This
is what the defendant claims in his counterclaim and, although a
half-hearted
attempt was made on his behalf to show that it would
notionally be possible to demolish portion of the dwelling in such a
way as
to save roughly one-half of the existing structure, the
defendant’s own expert, Burger, refrained from expressing any
opinion
as to the practicality of such a
‘solution’
. I
agree with the plaintiff’s counsel that this proposal can best be
described as
‘bizarre’
. Not only would such an option
leave the plaintiff with one-half of a carefully designed luxury
dwelling in rubble; it would leave
the defendant with a continuing
en­croach­ment of some 500 mm along the entire length
of the structure, which en­croach­ment
the defendant, on his
own version, is not even prepared to tolerate. In the
circum­stances, I have difficulty understanding
why this
evidence was placed before the court at all.
Weighing
up, therefore, the option of
complete
demolition, on the one
hand, against payment of compensation (including a
solatium
),
on the other, I am satisfied that the former option would indeed
produce an unjust result. The considerations leading me to this
conclusion fall broadly into two categories, viz
(a) dispro­portionality of prejudice; and (b)
principles of neighbour
law.
Dispro­portionality of
Prejudice
Its
is true that this part of the trial was not concerned with questions
of value and
quantum
as such. Nonetheless, having regard to
the facts as a whole, it is abundantly clear to me that there would
be a striking dispro­portionality
of prejudice if a demolition
order were to be granted, as opposed to the position if damages were
to be ordered. Apart from the
direct costs of demo­lition
(approximately R100 000), the bulk of the building costs
in­curred by the plaintiff to
date (approximately R1,75 million)
would be wasted. More­over, in the intervening two years since
the original building
operations commenced, building costs have
escala­ted by more than 30%, with the result that the same house
would now cost more
than R4 million to build. In addition,
there is likely to be further intangible prejudice, for instance,
the inconvenience
of a lengthy delay before eventual completion.
As
against the plaintiff’s prejudice, as mentioned above, the
defen­dant would undoubtedly also suffer prejudice, in that
he
would inevitably lose his property if a demolition order were
refused. However, it is clear to me that this would not have nearly
the same disastrous conse­quences for the defendant as
demolition would have for the plaintiff. Notwith­standing the
praises
sung by the defendant with regard to erf 878 (
‘perfekte
erf’, ‘perfek geleë’,
etc), I am not persuaded of its
uniqueness. It is also not as if the defendant had already designed
or planned an irreplaceable
dream home for that property and was
ready to start building. He had only acquired it some two years
before the problem arose,
having disposed of his previous (similar)
property in the same development at a very hand­some profit
within a period of only
six months after purchase. He had as yet
made no concrete plans to develop the property in question.
Be
that as it may, the crucial distinction between the position of the
defendant and that of the plaintiff in the context of prejudice
is
the fact that the defendant will be fully compensated for his loss,
whereas, in the event of demolition, the plaintiff will
not be so
compensated.
A
factor that weighs particularly heavily with me in evaluating the
relative degrees of prejudice is the fact that there is a natural
aversion on the part of the courts to order the destruction of
economically valuable building works. I share such aver­sion.
As
Solomon JA pointed out i
n
Hornby
v Municipality of Roodepoort-Maraisburg,
29
more than 80 years ago:
‘
Now the English Courts are extremely loth to grant what is
called in their practice a mandatory injunction ordering the removal

of a building which has been entirely completed. Some cases indeed
almost go so far as to lay down that in such circumstances a
Court
is powerless to make such an order. But in
City
of London Brewer Co v Tennant
(9 Ch.
Ap. 219) this extreme view was discountenanced by Lord Selborne, who
said:
“
I am
not prepared to assent to the opinion, if such an opinion exists,
that in every case in which a building has been completed,
even
entirely completed before the filing of a bill, this Court is
powerless. The Court has power, if it thinks fit, to grant a
mandatory injunction – that is, an order directing the removal of
a building. We know of course that the Court is not in the
habit of
doing so except under special circumstances, but those special
circumstances may exist.”
And where
damages would afford sufficient compensation to the person injured,
the practice has been not to grant a mandatory injunction.’
In
my considered opinion, damages – including an appropriate
solatium
–
would afford the
defendant
sufficient compensation in the present case.
Principles of Neighbour Law
I
am fortified in this conclusion by the rules and principles of
neighbour law, which place certain restric­tions on the
unen­cum­bered
exer­cise of powers of ownership.
Neighbour law is aimed at achieving harmony in the relationship
between neigh­bouring
land­owners in the case of conflicting
ownership interests.
30
Con­sidera­tions of reason­ableness and fairness are
promi­nent factors in the exercise of the court’s dis­cretion
in this field.
31
Un­fortunately, these qualities of reason­ableness and
fairness have been sadly lacking in the relation­ship between
these parties thus far. It would certainly bode ill for their
long-term relation­ship as neighbours, were the defendant to
succeed in the present application for complete demolition of the
plaintiff’s home. This is a further consideration, in my view,
why
it would be better to sever their relationship as potential
neighbours at this point.
Closely
connected with the previous point, is the consideration that a court
should be most reluctant to order demolition where
it knows that the
innocent party was in fact prepared to accept monetary
com­pen­sation. On the evidence of this case,
the inference
is irresistible that the defen­dant
was
prepared to accept monetary compensation for his erf and that he
attempted to use his superior bargaining position in an endeavor
to
extract from the
plaintiff
a much higher
amount than he was entitled to.
32
It stands to reason that he would be in an even stronger position to
continue doing so if he were to be armed with a demolition
order.
This was the precise concern ex­pressed by the South
African as well as the English courts and on the basis of which
those courts
con­sidered themselves empowered to exercise the
discretion not to order removal of an encroachment.
33
In
De Villiers v Kalson
34
Graham JP put it as follows:
‘
It is quite true that for the reasons stated in so many of the
English cases, the wrongdoer who encroaches on another’s rights
cannot be heard to say, unless there are some very special
circumstances, that a monetary compensation is sufficient, for that
would be tantamount to compelling the Plaintiff to consent to
expropriation.
But on the other hand it would be equally
inequitable to place the Plaintiff in a position to extort wholly
excessive compensation
from the Defendant by granting an order for
the removal of the buildings in cases in which the facts disclose
that a remedy in
damages would fully meet the justice of the case
.’
(my emphasis)
In
my view, granting a demolition order in favour of the present
defendant would have precisely the above-mentioned effect. It would
indeed
‘…deliver
[the encroacher]
to the
[encroachee]
bound hand and foot to be subjected to any extortionate demands the
[latter]
might make’
, as Millett LJ put it so
graphically in
Jaggard v Sawyer.
35
In
the final analysis, the defendant’s attitude and his counterclaim
in these proceedings are based on anachronistic concepts
of
ownership: it represents a rigid and dogmatic insistence upon his
perceived absolute rights as owner, irrespective of broader
considerations of social utility, economic waste and
neighbourliness.
36
Conclusion
For
the reasons set out above, I conclude that a remedy in damages would
fully meet the justice of the case. I am satisfied, therefore,
that
a demolition order should be refused and an order should instead be
granted as prayed by the plaintiff.
An
order is accordingly granted in the following terms:
It is declared that the defendant is not entitled to the removal
from erf 878 of the encroachment erected there­on by the
plaintiffs,
subject to payment by the plaintiffs to the defen­dant
of such damages as the parties may agree or the court may determine

to be payable.
The defendant’s claim in reconvention is dismissed.
The defendant is ordered to pay the costs of suit herein,
including the costs of two counsel.
B
M Griesel
1
As
described by the plaintiff’s counsel in their opening address.
2
See
para above.
3
Act
108 of 1996.
4
Du
Plessis v De Klerk
[1996] ZACC 10
;
1996 (3) SA 850
(CC) para [44] at 876H–I and para [136] at 915E–F.
5
J
R L Milton ‘The Law of Neighbours in South Africa’
1969
Acta
Juridica
123
at 234.
6
Vol 27 First Reissue (2002)
sv
Things
para
[317] (footnotes omitted). See also C G Van der Merwe
Sakereg
2 ed (1989) 202 and authorities referred to in fn 252; Cilliers and
Van der Merwe ‘The “year and a day rule” in SA law’
1994
(57)
THRHR
587
; and Milton
op
cit
234
et seq.
7
Thus
potentially giving rise to a defence of estoppel.
8
Op
cit
pp 237 – 244. See also
Johannesburg
Consolidated Investment Co Ltd v Mitchmor Investments (Pty) Limited
1971 (2) SA 397
(W) at 405D – 407G as well as
Rand
Water­raad v Bothma en ’n Ander
1997
(3) SA 120
(O) 130F – 132H.
9
But compare the
Johannesburg
Consolidated Investment
case,
supra
n ,
at 402D.
10
This
principle or
‘working
rule’
was laid down by
Smith
LJ in
Shelfer
v City of London Electric Lighting Co
(1885) 1 Ch 287
CA and has been followed in numerous subsequent
cases, including in the Court of Appeal. See eg
Jaggard
v Sawyer & Another
[1994] EWCA Civ 1
;
[1995]
2 All ER 189
(CA) and cases referred to therein.
11
See
e.g.
Holland
v Worley
(1884)
26 Ch D 578
at 587.
12
Lawsa
op
cit
para 196.
13
Contribution of English Law to
South African Law
40 (as quoted in Lawsa
op
cit
para
196 fn 1).
14
At
pp 316 – 7.
15
Supra
n
at 208
d
.
16
At
p 208
f.
See
also
Fishenden
v Higgs and Hill Ltd
(1935) 153 LT 128
(CA) at 139, 141.
17
Supra
n .
18
At
125C – 130E.
19
At
130F/G-G and 132H.
20
See
e.g. Lawsa
op
cit
para 317 and authorities referred to in fn 12.
21
Fletcher
and Fletcher v Bulawayo Waterworks Co Ltd
1915
AD 636
at 648.
22
See
para below.
23
See e.g Prest
The
Law and Practice of Interdicts
Ch
11 pp 233 – 253.
24
Cf
Greeff
v Krynauw
1899 CTR 591.
25
Cf Hahlo ‘Encroachment: Damages instead of Removal?’ 73 (1956)
salj
241
at
242.
26
1956
(1) SA 483
(A) at 500G – H.
27
1986
(1) SA 776
(A) 783C – F.
28
See
e.g. Milton
op
cit
237 – 8.
29
1918
AD 278
at
296
–7. See also the judgment of
Innes
CJ
at
290 of the same case.
30
Lawsa
op
cit
para
301.
31
See eg
Regal v
African Superslate (Pty) Limited
1963
(1) SA 102
(A) at 111G;
Rand
Waterraad v Bothma, supra
n
at 133J.
32
See
para
supra
.
33
See e.g the
dictum
of
J
essel
MR in
Aynsley v
Glover
(1874)
LR 18 Eq 544
at 555 as well as the passage from
Shelfer’s
case, quoted in para
supra
.
34
1928
EDL 217
at 231.
35
Supra
n
at 208
h.
36
See
e.g. Lawsa
op
cit
paras
297
et
seq
and
A J van der Walt
Constitutional
Property Clauses
(1999) 349 – 358.