SAFLII Note: Certain personal/private details of parties or witness es have been redacted from this document
in compliance with the law and SAFLII Polic y
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
CASE NO: D7934/2020
In the matter between:
AAVISHKAR CHUNDHUR ` APPLICANT
and
SANDEER RAMPERSAD `` RESPONDENT
ORDER
1. The relief in paragraph 1 of the notice of motion i s dismissed.
2. The respondent is directed to pay the applicant the sum of R11 500.00 as
compensation for the encroachment which the parties agreed is 46m2 in extent.
3. The amount referred to in paragraph 2 above is to be paid within 21 days of
receipt of the order.
4. The respondent is directed to do all things necessary and incidental to ensure
the transfer and registration of the encroachment into his name.
5. The respondent is directed to pay the costs occasioned by the application up
to and includ ing 22 June 2022, thereafter each party is directed to pay their own
costs.
JUDGMENT
HENRIQ UES J
Introduction
Demolition or compensation?
[1] This is the main issue for determination in the second part of this opposed
application relating to an encroachment and an enforcement of an owner’s right to
seek an order from the courts for removal of such encroachment.
[2] It is common cause that the p arties are neighbours in a sectional title scheme
described as L[…] G[…] situate at 1 [...] N[...] Road, Shallcross, Durban. The
applicant is the owner of unit 5 and the respondent is the owner of the adjacent unit
6. The property was registered in the name of the applicant on 15 February 2019. At
the time he purchased the property on 12 October 2018, he indicates he was
informed by the erstwhile seller that the current fence line did not reflect the official
boundary between the two properties.
[3] Since the applicant took occupation of the property the issue of the
encroachment was not officially addressed either at the time of conclusion of the sale
or registration of transfer, nor raised by the parties or any statutory body. In actual
fact, th e catalyst for the application was the applicant’s bougainvillea tree and the
dispute which arose between the parties as a consequence of the respondent’s
request for the applicant to trim and eventually cut it down as it was causing a
nuisance and the app licant’s failure to comply with such request.
[4] The applicant indicates he engaged the services of a land surveyor, Rajen
Govender to prepare a report, which report accurately depicts the beacons in respect
of the applicant’s and the respondent’s proper ties and the encroachment of the
respondent’s driveway and a portion of the carport onto the applicant’s property.
Most notably, it is common cause that all the other units within the entire sectional
title scheme are also affected by encroachments relatin g to the location of each of
the individual units’ respective driveways.
[5] In February 2022, when the opposed application first served before me, the
various points in limine raised by the respondent including that of lis pendens and
non-joinder, were n ot canvassed and adjudicated upon and I indicated that it would
follow in the main judgment.
[6] The parties had only dealt with the encroachment and the applicant’s demand
for demolition. Neither parties’ affidavits dealt with policy considerations or
alternative remedies to resolve the encroachment dispute although Ms Hennessy,
who appeared for the respondent at that time made submissions in this regard. Both
parties’ legal representatives agreed that the application papers would have to be
supplemented in this respect.
[7] This court, given its wide discretion, and considerations of fairness and equity,
adjourned the application sine die , reserved costs and issued the following orders:
"2. The applicant and respondent are directed to file reports by suitably
qualified experts to determine suitable alternate remedies to the main relief
sought by the applicant including, but not limited to, a compensatory order.
3. Such reports are to be filed within 60 (sixty) days of the grant of this
order.
4. A copy of this order together with the relevant reports are to be served
on the trustees of the Body Corporate L[…] G[…] and the Ethekwini
Municipality to allow for any written representations or written submissions to
be made.
5. The applicant and respond ent are directed to file supplementary
affidavits incorporating the reports referred to in paragraph 2 above and the
representations or submissions referred to in paragraph 4 above. Such
supplementary affidavits are to be filed within 90 (ninety) days of t he grant of
this order.
6. In the event of the applicant, respondent, the trustees of the Body
Corporate of L[…] G[…] and the Ethekwini Municipality not complying with the
orders above, the matter will be determined on the papers as filed.”
[8] In Octo ber and November 2022, unbeknown to me the legal representatives
complied with the orders referred to in paragraph 7 above, and filed supplementary
affidavits. This was not immediately brought to my attention by the registrar’s office.
On learning of compl iance with my order, the matter was then re -enrolled for hearing
in October 2023 to address the appropriate remedy given the particular
circumstances of the matter and the additional affidavits filed.
[9] At the time of preparation of the judgment, the parties had not agreed on the
square meterage of the encroachment as evidenced from the reports of their
respective experts, Rajen Govender (Govender) and Rose Ginya (Ginya). The report
of Ginya specifically recorded that the services of a property valuer would need to be
engaged to determine the value to be attached to the square meterage of the
encroachment. This was relevant to a compensatory award.
[10] This necessitated a further written query directed t o the parties’
representatives as follows:
“1. Do the parties agree on the square meterage of the encroachment
having regard to the expert reports of Govender and Ginya?
2. The report of Ginya dated 14 September 2022 records a reservation of
the value an d seeks to employ the services of a property valuer. Does the
respondent accept the certificate of valuation contained in the report of
Hlanganani Group (Pty) Ltd dated 01 September 2022 reflected at page 61 of
the index to reports? In the event of the res pondent seeking to obtain its own
valuation it is to do so and file under cover of a confirmatory affidavit.
3. The parties are requested to revert by 5 July 2024.
4. Should the parties deem it necessary to convene a court to address
these issues, they a re to indicate and confirm same by 5 July 2024.”
[11] A delay was experienced in obtaining the necessary valuation reports from
the respondent’s valuer. This court and the applicant’s legal representatives were
kept informed thereof through the exchange o f correspondence. The valuation report
was eventually received on 29 August 2024.
Factual Matrix
[12] At this juncture it is appropriate to set out the facts against which the
appropriate relief to be ordered must be determined. What emerges from the
affidavits filed is the following. The respondent and his wife purchased Unit 6 in the
L[…] G[…] sectional title scheme in 2015 and had lived there for approximately 6
years at the time of institution of the application. The applicant purchased unit 5 in
2018 and had been living there for 2 years at the time of the institution of the
application.
[13] Even though the seller had informed him of the incorrect boundary lines, he
did not engage with the body corporate or with the seller prior to purcha sing the
property and registration of the transfer thereof, nor did he record any reservation of
his rights in relation to this.
[14] The bougainvillea trees grow successfully in the complex and according to the
respondent cause a nuisance as the applican t’s bougainvillea tree is right at the
entrance gate of the respondent’s property and scratches their vehicles as they drive
through. The parties appeared to have regularly engaged each other on the trimming
of the tree as it was creating a nuisance.
[15] On 7 July 2020, the respondent’s wife sent a WhatsApp message to the
applicant requesting that he remove the bougainvillea tree which was obstructing the
entrance to their driveway. The applicant agreed to do so. The tree was not removed
by the applicant and from July 2020 the relationship between the parties deteriorated.
Because the applicant did not remove the bougainvillea tree as per his undertaking
and several requests, the respondent’s wife messaged him indicating that she would
have to take the iss ue up with the body corporate or the Ombudsman as the
applicant was refusing to cut back the tree or remove it.
[16] The WhatsApp message exchange between the applicant and the
respondent’s wife reads as follows:
Figure 1
“Hi there I don’ t mean to be rude. But I need you to remove the boganvillea
from the side of my driveway. I will send u a video of the mess it is creating in
my property. Especially on a windy day like today”
“Ok, I will do so” “Thank you”
“Will sort it out in an hour or so. Busy online with work right now. “Ok thanks.
Also ur palm tree has fallen into my gate”
Figure 2
“Hi there again. You said you will remove the tree. And unfortunately the two
which are most problematic are still there. I did explain that this creates
constant mess. And Bob did speak to you many times about having it
removed, redirecting the branches are pointless in windy conditions such as
today. Unfortunately if you aren’t willing to compromise I am now forced to
take the issue up further with Uth an d the ombudsman.
As they know this has been an issue before. Thanks anyway.” “It’s fine go
ahead and take it up further”
“Sure.”
[17] Due to the applicant’s inactivity the respondent referred the matter for
adjudication in terms of s48 of the Community S chemes Ombud Services Act (CSOS
Act) on 23 October 2020. Presumably on receipt of the referral by the respondent,
the applicant sent a WhatsApp message which read as follows:
Figure 3
“Hi, I got the email from UTH about my bougainvillea”
“Your’ll made a b ig mistake by replying to Sheri that way. Now you will see
who I am…” “Mark my words”
“It starts right now”
“Have you just threatened me sir? Be sure that God will do the rebuking”
Figure 4
“Hi, I got the email from UTH about my bougainvillea”
“Your’ll ma de a big mistake by replying to Sheri that way. Now you will see
who I am…” “Ok”
[18] As a consequence, the applicant, a professional quantity surveyor, instructed
Govender on 15 August 2020 to do the survey. The matter was escalated to the
body corporate of L[…] G[…] and the dispute was noted in the minutes of the body
corporate meeting held on 14 September 2020.
[19] At such meeting, the body corporate resolved that:
“It has been noted that the owners of Unit 5 obtained the services of a Land
Surveyor that shows an encroachment of the driveway of unit 6 onto their
exclusive use garden. It does however show that there is also an
encroachment of unit 5 onto t he neighbouring property as well as all exclusive
use gardens encroaching onto the complex central roadway. It has therefore
been determined that that the Owner of unit 5 should escalate the matter
to CSOS for resolution as there may be an order passed onto the Body
Corporate to engage a Land Surveyor to identify all the pegs and
boundaries and adjust all the properties at owners’ expense.
Alternatively, to have the EUA re defined.”
[20] Most notably, the body corporate noted that the encroachment was not
isolated to unit 6 and extended to all the units in the complex as regards the
placement of the driveway. It is evident that from the time the respondent purchased
the pro perty in 2015 his driveway and carport as well as fence has been located
where it is. The driveways of the complex slopes downward and has a cascading
effect on all the properties within the body corporate.
[21] Following the meeting of the body corporate , there was no dispute as
recommended to CSOS and on 14 September 2020 the respondent referred a
dispute against the trustees of the L[…] G[…] Body Corporate to the Community
Schemes Ombud Services. The referral records the following:
“I purchased the a bove mentioned property in 2015. my levy clearance was
passed with no objections from trustees or other owners. The property next to
me, unit 5 was sold and levy clearance was passed by trustees. The new
owner is claiming that my driveway falls into their property and is making
demands for me to relocate my driveway. it should be noted that every
property from unit 2 up to unit 6 has been laid out in a manner that every
property overlaps the neighboring yard. As such it is unfair that these
demands should a ffect me only, as the layout of the complex was as is from
its time of registration and there are a few units including unit 5 that are using
a portion of the neighboring property. The properties were sold this way and it
is not acceptable to force me to r emove my driveway, that was not brought to
my attention in purchasing the property.”
[22] Both these matters are still pending.
[23] In the replying affidavit, the applicant refers to the encroachment and
reiterates his demand for the removal of the encr oachment. He admitted that the
bougainvillea tree was causing a nuisance, however he had trimmed it and as it was
in his yard he was not required to remove it. None of the pertinent allegations made
in the respondent’s affidavit relating to the cause of th e dispute were dealt with and
have merely been denied. The applicant indicates that he is not in receipt of the
CSOS referrals and reiterates his demand for the removal of the encroachment.
[24] In the supplementary affidavit served on the respondent, the body corporate
and eThekwini on 28 October 2022, the applicant persists in seeking an order for
demolition. The applicant annexes invoices in relation to the demolition and remedial
work required from KP Engineering and DC Brothers Building Contractors in the
amount of R137 655.00 and R94 096.20 respectively. The reports obtained by the
applicant require the removal of the encroachment, the widening of the existing
driveway, the creation of a new driveway along the existing boundary wire fence.
[25] In ad dition, applicant’s valuation report from Hlanganani Group (Pty) Ltd has
placed a market value on the encroachment of R21,400.00. It would appear from the
report that Hlanganani has used the replacement less depreciation method of
valuation for determining the market value of the subject property. This is also
referred to as the “cost approach” and considers the possibility that as a substitute
for the purchase of a given property one could construct another property that is
either a replica of the original or one that could furnish equal utility. In doing the
calculation and certifying of value, Hlanganani has arrived at a value which they
submit should not exceed R21,400.00. In doing so, consideration was given to the
land extent, location and accommodatio n as well as the impact of Covid -19 on the
selling price. They could find no immediate evidence of a significant reduction in
sales price.
[26] The valuers indicated that the estimated value was based on his interpretation
and calculations on assumptions of information gathered from estate agents and
other property professionals active in the area. The assumptions were interpreted,
amended and applied in determining an appropriate market value. He applied a rate
of R461.20/m2 at +/- 46.35m2 = R21 376.62 ro unded off to an amount of R21 400.00.
In arriving at an average rate, the valuer considered that sales conducted vary
between R235.15/m2 and R461.20/m2 with an average rate of R355.62/m2. The
average rate determined a value of R16 483.00 and the maximum ra te determined
the value of R21 378.00/m2.
[27] Because the sales rate increases as the land size decreases a higher rate
was applied in the calculations. In addition, the valuer recommends that to possibly
remedy the encroachment, the owner of exclusive use area G14 could demolish the
improvements and build a boundary wall along the surveyed dividing line or
alternatively buy the portion of the exclusive use area of G13 at a market related
value. In determining the market related value, she has analysed s ales of units in the
same sectional scheme, improvements were depreciated and deducted from the
purchase price to determine the value of the exclusive use land area. This approach
was followed due to the lack of sales of small high density zoned vacant lan d.
[28] The respondent in a supplementary affidavit which was served on the
applicant, the eThekwini Municipality and the Trustees of the Body Corporate of L[…]
G[…] on 1 November 2022 has indicated that on the applicant's version, the costs of
the encr oachment should not be more than R21 400.00. The two quotes for the
building and remedial work which the applicant obtained, he submits that these
amounts when viewed against the market related value of the encroachment and the
possible transfer of the exc lusive use area is disproportionate and consequently
demolition ought not to be granted as same is not fair and equitable given the facts
of this particular matter.
[29] In addition, the respondent submits that the applicant has failed to maintain
the exc lusive use area and the applicant had no intention to use the area as he has
erected a bank between the two properties. His property also requires repairs in the
sum of approximately R64,722.00 which have presumably increased over time. The
last quotation he received for the repairs to his house was from Pilekon Construction
in 2020.
[30] Rose Ginya (the respondent’s expert), who provided a report on 14
September 2022, relating to the encroachment as surveyed by Govender estimated
that the encroachment is at least 46m². Her recommendation is the following:
“The two Exclusive Use Areas, G13 and G14, should be cancelled. This will
be done by a duly qualified land surveyor using the Sectional Titles Act (Act
95 of 1986), Sectional Titles Amendment Act (Act 33 of 2013) and the Land
Survey Act (Act 8 of 1997) and Regulations promulgated under these acts by
amending the Sectional Plans of the scheme.
The cancellation of these two Exclusive Use Areas will allow for the re -
registration of new Exclusive Use Areas in their place, which will amend the
encroachment indicating the new extents for each of the affected Exclusive
Use Areas. From a land surveying point of view and under the presented
circumstances, this is the best possible approach to amending the
encroachment.
The cancellation and re -registration of the Exclusive Use Areas will result in
what is now EUA G13 decreasing by at least 47 square metre s in extent and
the same 47 square metre area increase on what is now G14. The exact
change in square meters in these EUAs will be determined upon placing of
new Exclusive Use Area boundary pegs by survey.”
[31] In essence, she recommends the re -registrat ion of the exclusive use area and
the cost of the land surveyor to amend exclusive use areas and such costs to be
borne by the respondent.
[32] The respondent's property valuers, Roper and Associates prepared a
valuation report.1 The market value of the e ncroachment was assessed at R11
500.00. An amount of R250/m2 was used to make the valuation, taking into account
comparable vacant land sales in the area, the time lapse, the steep topography and
the close proximity to informal settlements. The method of c alculation adopted by
Roper and Associates was a market approach using the comparable transactions
(direct comparison) method and comparable sales in the area. Such method is a
comparison of sales of similar properties making necessary adjustments with the
subject properly to determine the value that the market would place on it.
1 This was also served on the applicant's attorneys, the eThekwini Municipality and the Trustees of
the L[…] G[…] Body Corporate
[33] The approach is based on the principle of substitution and holds that the
buyer will not be prepared to pay more for the subject property than the price which
alternative to comparable property could be purchased. The valuer studied records
of sales and transfers as indicated in the Deeds Office, Pietermaritzburg, consulted
with estate agents, valuers, landlords and developers and undertook a detailed
search of comparable prop erties sold.
[34] In relation to the square meterage of the encroachment, the parties were
directed to agree on the exact extent. Govender and Ginya reflected the square
meterage of the encroachment as being 46m². On receipt of my query, the parties’
legal representatives agreed in writing on 2 May 2024 and 5 July 2024 respectively,
that the extent of the encroachment was 46 m².
Analysis
[35] Turning now to deal with the various points in limine raised in opposition to the
application, these are the following.
35.1 the failure of the applicant to join the Community Schemes Ombud
(CSOC), the body corporate of L[…] G[…] and the municipality;
35.2 lis pendens as there is a pending referral before CSOC;
35.3 there is a similar encroachment in each and every neighbouring
property of the sectional title scheme.
[36] The question whether a party has a “direct and substantial interest” in the
subject matter of a legal dispute as formulated by the uniform rule req uires a legal
interest in the subject matter of the litigation which may be prejudicially affected by
the judgment of the court or if the order cannot be sustained or carried into effect
without prejudicing that party, unless the court is satisfied that he has waived his
right to be joined.
[37] Most of the authorities on this point rely on the test for joinder as set out in
Amalgamated Engineering Union v Minister of Labour2. The mere fact that a party
has an interest in the outcome of the litigation does not warrant a non -joinder plea
and the right of a party to validly raise the objection that other parties should have
been joined to the proceedings has thus been held to be a limited one. The joinder of
a party is only required as a matter of necessity a s opposed to a matter of
convenience if that party has a direct and substantial interest which may be
prejudicially affected by the judgment of the court in the proceedings concerned.3
[38] Both the eThekwini Municipality and the body corporate have been served
with the application papers as well as supplementary papers. In the supplementary
affidavit of the applicant he also raises the fact that the bondholders had a vested
interest in the proceedings as the properties were registered as security for the home
loans advanced over the respective properties and had not been joined.
[39] At the time the bonds were registered, the respective bondholders were not
affected by the property extents as both parties specifically, the applicant registered
the extent of the property as per the sale agreement and the deed of transfer
between him and the fo rmer seller. The same position maintains in respect of the
respondent. It would not affect the security they hold. The possibility does exist that a
bondholder may be affected, should this court order compensation. However, the
parties will have to notify the bondholders depending on the final order that this court
issues in this regard. It is not a joinder of necessity in my view but rather of
convenience.
[40] Although notification has been provided to the body corporate, I agree with
the submissions of Mr Mizrachi, who appeared for the applicant that neither the body
corporate nor the individual owners of units 2 to 7 within the sectional title scheme
need to be joined. The dispute between the applicant and respondent is confined to
2 Amalgamated Engineering Union v Minister of Labour 1949(3) SA 637(A) at 659 to 661; Bowring
N.O. v Vrededorp Properties C C & Another 2007 (5) SA 391 SCA para 21
3 Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 SCA at
para 12. Although the decision arises in the context of applications to intervene, the principles in
SARDA v Regional Land Claims Commission er and Others 2017(5) SA 1 CC at paras 9 -11 echo the
requirements of necessity as opposed to convenience.
an encroachment of pr ivate property and does not deal with any common area or
exclusive rights area which will affect the body corporate and individual owners.
[41] The respondent's contention that there is a material non -joinder of the
municipality is also misplaced. The enc roachment relates to a dispute between
neighbours under the common law4 and does not in any way impact on the
municipality. The relief that is sought is not in terms of the National Building
Regulations and Building Standards Act, 103 of 1997. The municipa lity does not
have an interest as it relates to a dispute between neighbours under the common
law.
[42] Any structural alterations that may be required to the respondent's property
consequent upon the granting of the relief would still re quire the passing of plans and
oversight by the municipality and consequently, the municipality would not be
adversely affected by the relief granted.
[43] As regards the non -joinder of CSOS, CSOS was established in terms of the
Community Schemes Ombud Services Act 9 of 2011. It is a body established to deal
with disputes relating to a body corporate. Section 38 and 39 of the Act deal with the
nature of dispu tes which can be referred for dispute resolution and the relief which
the Community Schemes Ombud can grant. The relief in the present application falls
outside the ambit of the relief which CSOS is capable of granting as it does not fall
within the disput es contemplated in the ambit of sections 38 and 39 of the Act.
Consequently, the body corporate does not need to be joined as the dispute relates
to property owned by the applicant and respondent and does not deal with any
common area.
[44] As regards the defence of lis alibi pendens , a party wishing to raise such
defence bears the onus of alleging and proving pending litigation between the same
parties, based on the same cause of action in respect of the same subject matter.
Once the requisites have been established, a factual presumption arises that the
second proceedings are prima facie vexatious. The onus shifts to the party who
4 Serengeti Rise Industries (Pty) Ltd and Another v Aboobaker NO and Others (845/2015) [2017]
ZASCA 79, Readam SA (Pty) Ltd v BSB International Link C C and Others 2017 (5) SA 184 (GJ)
instituted the second proceedings to convince the court that the new proceedings are
not vexatious. To do so, such party must satisfy the court that the balance of
convenience and equity are in favour of allowing the second case to proceed. A
court however, has an overriding discretion to order a stay even if the elements of lis
alibi pendens have not been established.5
[45] The two referrals which have been made by the respondent to CSOS are, in
my view irrelevant to these proceedings. The first deals with the dispute over the
bougainvillea tree and the second, although mentioning the subject of the dispute
being the encroachment seeks a declarator that the respondent reasonably requires
exclusive use rights over a certain part of the common area. This does not relate to
the current dispute between the parties, and consequently there is no merit to the
defence of lis alibi pendens . Given the facts in this particular matter, I am not
disposed to ordering a stay of the proceedings in the circumstances as envisaged in
Caesarstone.
[46] At the initial hearing of the matter, Ms Hennessy, who appeared for the
respondent, submitted the court must hear the matter from a point of fairness and
equity. Her submissions can be summarised as follows namely:
46.1 the removal of the encroachment wi ll have a cascading effect on the
neighbours of the adjacent properties in the scheme;
46.2 the applicant has resided on the property for a period of two years and
what precipitated the application was an argument between neighbours over
essentially a nui sance being a bougainvillea bush which resulted in the
breakdown of the neighbourly relationship between them;
46.3 the removal of encroachment would have huge financial implications
for the respondent and his wife, and consequently the court ought to con sider
the alternative of compensation as opposed to demolition;
5 Caesarstone Sdot -Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499
SCA
46.4 the respondent has enjoyed undisturbed possession of the property for
a period in excess of six years;
46.5 he received permission from the body corporate to erect the carport
and gate;
46.6 the applicant was aware of the encroachment as the previous owner
informed him of this at the time of him purchasing the property in October
2018 and did nothing about this;
46.7 the timing of the institution of the application follows an altercati on
between the parties in which the applicant threatened to take steps against
the respondent;
46.8 the respondent had attempted to resolve the matter by the body
corporate to no avail;
46.9 any order which the court grants would potentially cause further
disharmony in a relationship between neighbours.
[47] In a dispute like the present where there is an encroachment, the landowner
has a choice between three remedies, namely the removal of t he structures,
ejectment and compensation for the value added to that land or transfer of the
encroached area. A view was held that the right to insist on the removal of the
encroachment is lost if the owner elects to do nothing and with the full knowledge of
all relevant facts does not insist on removal for a year and a day. This was the
applicable rule in English law. The year and a day rule, it was decided, was not
received in South African law and was not part of our law.6
[48] In Rand Waterraad v Both ma and Another7, the court confirmed that the one
year and a day rule does not form part of our law and that reasonableness and
6 Silberberg and Schoeman Law of Property, Fifth Edition
7 Rand Waterraad v Bothma and An other 1997 (3) SA 120 OPD
fairness were prominent factors as well as an attitude of mind in determining what a
remedy ought to be. At paragraph 133I -134B, the court held the following:
“Neighbour law sought to harmonise the property interests of neighbouring
property owners. Reasonableness and fairness were prominent factors: not
only were considerations of fairness and reasonableness important in the
limitation of a subjective right, but attitude of mind also played an important,
although not necessarily decisive, role in determining what conduct was
unlawful and what was not.”
[49] In circumstances where an owner allows the encroachment on the clear
unde rstanding and subject to the condition that he or she may demand a removal at
a later stage, then the court does not have the discretion and has to order a
demolition. Our courts have also recognised that they have a discretion to award
damages instead of an order for removal if the justice of the case is met by such an
award. This would be, for example, where the cost of removing an encroachment
would be excessive in comparison to any damage or inconvenience which a plaintiff
may suffer.8 Where an award for damages is made instead of an order for removal,
an order for transfer of that portion of the land encroached upon may, in an
appropriat e case, be made as “incidental to and consequent upon” such an award.9
[50] Kumleben J stressed that an order for transfer of the portion of land
encroached upon is merely incidental to an award for damages as the latter is the
true basis for the granting of relief.10 The academic Scott11 opines that if a court
refuses to order the removal of an encroachment but orders payment of
compensation in the interests of legal certainty, a court should also order payment of
solatium and transfer of the land in the name of the encroaching owner at the latter's
expense. In this particular matter, the respondent admits that I must treat this case
as an exception and determine the issues based on equity and fairness in terms of
8 Rand Waterraad v Bothma and Another at 138H -I
9 Meyer v Keyser [1980] Vol 2 All SA 119 (D) at 201
10 At 201
11 S Scott “Recent developments in case law regarding neighbour law and its influence on the concept
of ownership’ (2005) 16(3) Stellenbosch Law R eview 351 -377
the principles of neighbour law and order payment of compensation as opposed to
demolition.
[51] As was stated in the Fedgroup Participation v Trustee, Capital Property12 our
law has always carefully protected the right of ownership, especially of immovable
property as an important and extensive right. In Phillips v South African National
Parks Board13 the court held the following:
“It is indisputable that an encroachment of the nature and issue in the instant
case constitutes an interference of the applicant's property rights, such as to
constit ute a deprivation in terms of the provisions of section 25 of the
Constitution. It follows that, in exercising its discretion, the Court will accept,
as a starting point, that the owner is entitled to obtain a demolishing order in
respect of the encroachin g structure. The primary remedy therefore is an
order for the removal of the structure.”
[52] If an encroachment is the only problem, then the court has a discretion to
either order the removal of the encroachment or to award damages and
compensation.14 The deciding factor in such instances is the disproportionality or
otherwise between the removal of the encroachment as against the damage or
inconvenience suffered by the aggrieved land -owner.15 Having regard to the decision
in Fedgroup at paragraph 35 where court orders compensation as opposed to
demolition it is normally done on the basis of policy considerations such as an
unreasonable delay on the part of the landowner, or what might be viewed as
acquiescence, and prejudice and the principles of neighbour law are to be taken into
account.
[53] In BSB International Link CC v Readam SA Pty Ltd16 the Supreme Court of
Appeal held that although the court has discretion to reach an equitable a nd
12 Fedgroup Participation v Trustee, Capital Property 2015 (5) SA 290 SCA at para 33
13 Phillips v South African National Parks Board 2010 JDR 048 (ECG) at para 24
14 Lester v Ndlambe Municipality 2015 (6) SA 283 SCA at para 22
15 Lester supra at para 22, Rand Waterraad v Bothma supra at 138, Phillips v South African National
Parks Board supra at para 24, Trustees Brian Lackey Trust v Annandale 2004 (3) SA 281 CPD at
para 23
16 BSB International Link CC v Readam SA Pty Ltd 2016 (4) SA 83 SCA at para 26
reasonable solution in terms of the common law by ordering payment or
compensation as opposed to demolition, where the cost of removal will be
disproportionate to the benefit derived from the removal what tipped the scales
against BSB was that it had be en warned it had been acting illegally. The facts of
BSB International however are distinguishable as in such matter, the respondents
had been warned by the municipality since 2016 to remove the encroachment but
refused to do so. What is noteworthy about t he decision in Lester17 is that when the
court applies the disproportionality of prejudice test an encroaching owner's own
conduct plays an important role.
[54] I agree with the authorities that this court has a wide and equitable discretion,
having regar d to the principles of fairness and reasonableness to award damages in
a given situation, as opposed to the demolition of the encroaching structures. This
wide and equitable discretion is consistent with our law and similar situations found
in claims for e nrichment, specific performance or interdicts. The rigid adherence to
the primary remedy of demolition of an encroachment can, in my view, have unjust
results. The purpose of the exercise of a court of its discretion is to prevent such
unjust results and d o justice between man and man.
[55] In BSB International Link18 the court reaffirmed the common law position that
a court is vested with a discretion by holding as follows:
“In the case of encroachi ng structures the owner of the land which is
encroached upon can approach the court for an order compelling his or her
neighbour to remove encroachment…. Despite the above rule, the court can,
in its discretion, in order to reach an equitable and reasonabl e solution, order
the payment of compensation rather than the removal of the structure.”
[56] The default position is that an owner has a clear right to the removal of an
encroachment. However, the discretion to award demolition exists even when it
causes a severe limitation on an affected landowner’s rights. The discretion to award
17 Lester supra at para 28
18 BSB International Link CC supra at para 24
compensation instead of demolition is wide and equitable and one must consider the
surrounding circumstances of a particular matter ( Rand Waterraad v Bothma ).
[57] Fairness, e quity and reasonableness are among the considerations. A court
has a discretion to refuse demolition “where the costs of removal would be
disproportionate to the benefit derived from the removal” ( Trustees Brian Lackey
Trust v Annandale ).
[58] In my view the applicant’s insistence on the respondent removing the
encroachment, by demolition and having to reinstate the driveway is opportunistic.
The cost of demolition for the respondent is substantial on the applicant’s own
estimations. Given the circumstance s of this particular matter, it is just and equitable
as well as reasonable for the applicant to be compensated for his loss and the
respondent has tendered compensation.
[59] This matter is unlike the matters involving a contravention of the National
Building Standards Act, where a party proceeds nonetheless, despite warnings and
contravention notices issued. The respondent in these proceedings had sought the
permission of the body corporate, which was granted.
[60] That brings me to the next issue being that of the value to be placed on the
encroachment. The property valuers do not agree on this. I have had regard to the
reports, and I am of the view that the estim ate placed by Roper and Associates is a
far more realistic figure and market related for the encroachment. I am also mindful
of the fact that apart from placing a market related value on the encroachment, there
are other costs associated with the conveyanc ing required to cancel the existing
exclusive use areas, the registration of the new exclusive use areas and the
bondholders consent. Although the applicant has placed a value of R45 000.00
thereon, the respondent has indicated that, should this court be a menable to
granting an order for directing the transfer he would be entitled to instruct his own
conveyancer and may obtain a lesser quotation to effect this.
[61] In determining that compensation is a fair and equitable order given the facts
of this matt er, I have had regard to the quotations from KP Engineering and DC
Brothers Industries obtained by the applicant. He instructed both entities to provide
three separate figures in their quotations catering for three steps, namely the
removal of the encroach ment, the widening of the respondent’s existing driveway
and the creation of a new driveway on the opposite side elevation.
[62] A further consideration relates to the aspect of solatium as indicated by Scott.
I can find no decided authorities dealing wit h this aspect. In any event, I am of the
view that the facts do not warrant an award. Any award would not be in keeping with
the with the traditional line of cases in which solatium is awarded.
S 25 of the Constitution
[63] There has been much debate abou t whether an award for compensation
coupled with an order for transfer of the property constitutes an arbitrary deprivation
of property.
[64] In Trustees Brian Lackey Trust v Annandale , the parties had agreed that the
“law of general application” included a reference to the common law. In this particular
matter, neither of the parties raised nor argued the constitutionality of an award for
compensation and resultant transfer in the context of s 25 of the Constitution. Based
on the oral and written submissi ons the parties in this matter proceeded on the basis
that a court has a discretion in certain circumstances to order compensation instead
of demolition. This court need say no more about s 25 of the Constitution.
[65] It warrants mentioning that valuab le judicial resources could have been saved,
as well as costs and inconvenience to all concerned if the body corporate had
resolved the matter much earlier on. I have no doubt that given the cascading effect
of the driveways, this order may very well resul t in consequential litigation and
demands for transfer and re -establishment of the common areas throughout the
scheme.
[66] What may be considered as a victory to the applicant, may eventuate into a
hollow one. He may very well be faced with a similar act ion by his neighbour given
the encroachment of all the driveways. It is incumbent on the body corporate to give
serious consideration to re -aligning the common areas.
Costs
[67] The usual rule is that costs follow the result. During the course of argument
and the various court hearings as well as in his written submissions, the applicant
persisted in seeking an award of costs. There was no proposal from either of the
parties that each party should bear its own costs. Although the applicant has not
succeede d in his primary relief, he has had to approach the court in order to find a
resolution to the matter.
[68] The question remains whether the respondent ought to be mulcted with the
costs occasioned by the entire application. The respondent had never denie d the
encroachment and has throughout, in my view, behaved in a responsible manner.
The body corporate had provided him with permission to erect the carport and his
driveway and the boundary wall.
[69] Although I accept that the applicant was entitled to seek a resolution in the
matter, this was not due to the recalcitrance of the respondent, but as a
consequence of the applicant’s mala fides in bringing the application and not seeking
to resolve it via alternative means. This was a matter which cried out for alternate
dispute resolution and more so for the body corporate and managing agents to
actively get involved to resolve the matter. It does not bode well for good neighbour
law for parties to resort to litigatio n given that they both reside in the same scheme
next to each other.
[70] It would have been a simple matter for the body corporate to have intervened
and possibly cut down the tree, which may not have necessitated the application. In
my view, the applic ant would only be entitled to costs occasioned by the institution of
the application and the initial court hearing. Thereafter each party would be liable for
the costs occasioned thereafter. These costs would be on scale A.
[71] This is due largely to the conduct of the applicant, but also as a consequence
of the fact that both Mr Mizrachi and Ms Hennessy, who appeared at the hearing on
the first occasion had to concede that no alternatives to demolition were considered
specifically, given the change in ou r law and the fact that courts, in circumstances
where encroachment or buildings were erected with parties being unaware thereof,
have been reluctant to order demolition.
Order
[72] In the circumstances, the following order is granted:
1. The relief in paragraph 1 of the notice of motion is dismissed.
2. The respondent is directed to pay the applicant the sum of R11 500.00
as compensation for the encroachment which the parties agreed is 46m2 in
extent.
3. The amount referred to in paragraph 2 above is to be paid within 21
days of receipt of the order.
4. The respondent is directed to do all things necessary and incidental to
ensure the transfer and registration of the encroachment into his name.
5. The respondent is directed to pay the costs occasioned by the
application up to and including 22 June 2022, thereafter each party is directed
to pay their own costs.
HENRIQUES J
Case information
Date Judgment reserved : 29 August 2024
Date of Judgment : 08 May 2025
Appearances
Counsel for the Applicant : Elad Mizrachi Instructed by
Applicant’s Attorneys : K. Suliman Attorneys
21 Sinai Street
Shallcross, Durban
Tel: 082 578 6865
Email: kassim@ksulimanattorneys.co.za
c/o Pather & Pather Attorneys Inc.
3 Nollsworth Cres cent
Nollsworth Office Park
La Lucia Ridge, Durban
Tel: 031 304 4212
Counsel for Respondent : Adv K Hennessy
Adv. T Khazi
Instructed by
Respondent’s Attorneys : Uresh Dorasamy & Associates
33 O’ Flaherty Road
Clare Estate
Durban
Ref: R152
Tel: 031 269 141 9
Email: reception@udattorneys.co.za
This judgment was handed down electronically by circulation to the parties’
representatives by email, and released to SAFLII. The date and time for hand down
is deemed to be 14h30 on 8 May 2025.