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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: 2024-003605
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: /NO
DATE: 02 July 2025
SIGNATURE

In the matter between:

N[...] C[...] M[...] Applicant

and

THE TRUSTEESFOR THE TIME BEING OF
THE RED CHERRY TRUST
(Registration no: 35012002) First Respondent

FORD: BRYAN CHRISTOPHER Second Respondent

WEBB: CHANTAL Third Respondent

THE TRUSTEE FOR THE TIME BEING OF
MISSAIKOS INVESTEMENTS & HOLDINGS TRUST
(Registration no: IT9324/03) Fourth Respondent

THE REGISTRAR OF DEEDS, JOHANNESBURG Fifth
Respondent


JUDGMENT
AUCAMP AJ


INTRODUCTION
[1] In a long -standing neighbour dispute concerning two adjoining residential
properties, the central factual issue is the construction of a boundary wall
approximately 22 years ago that was erected on the incorrect boundary line,
resulting in a portion of one neighbour’s property being encroached upon.
Although the affected neighbour intermittently raised objections over the years,
they took no steps to address the encroachment. The encroaching neighbour,
acting in good faith, has since offered compensation, but the affected party now
seeks a court order for demolition of the wall. Legally, the matter engages the
principles of common-law rights of ownership and encroachment , particularly
the default remedy of removal of an unlawful structure versus the court’s
equitable discretion to award compensation instead of demolition in appropriate
circumstances. The present matter requires a determination of whether to order
the demolition of the wall, alternatively to allow the encroachment to remain and
to order the payment of compensation.

[2] The applicant is the registered owner of an immoveable property, Portion 1 of
Erf 2[...] B[...] 4[...] Township, (“Portion 1”). The first respondent (“the Trust”)
on the other hand is the registered owner of the adjacent immoveable property,
Portion 2 of Erf 2[...] B[...], Extension 4[...] (“Portion 2 ”). Both properties are
situated within the P[...] Estate (“the Estate ”) in B[...] and the two propertie s
share a common boundary wall.

[3] The applicant, albeit through a personal asset company, purchased Portion 1 in
2002 whereas the Trust became the owner of Portion 2 in 2003. Portion 1 was
subsequently in 2010 transferred into the applicant’s personal name.

[4] The applicant alleges that she developed and built the house on Portion 1 and
that it was subsequently discovered , after the foundations of the house had
already been constructed, that the main building was built some 800mm further
than was originally planned. The consequence of this error was that the front
façade of the residence was too close to the boundary wall to access the car
park next to the house. The error had a further knock -on effect in that the
boundary wall needed to be built beyond the area covered by the servitudes
originally planned and approved.

[5] The net effect of the error was that an encroachment arose in that Portion 1
encroached onto Portion 2 by some 3.45 square meters. I pause to state that
there is some dispute over the extent of the encroachment.

[6] Subsequent attempts to remedy the error by certain interested parties failed.

[7] The applicant admits the encroachment but denies any involvement in causing
it. She further acknowledges that she was aware of the encroachment from the
outset but laboured under the belief that the matter would be resolved by the
relevant parties. It was only during a homeowners' meeting of the estate in
2007 that she became aware that the issue remained unresolved. As a result,
on 11 June 2007, the applicant approached the first respondent and requested
that the Trust provide her with a reasonable se ttlement value for the
encroached area. This request was made because the applicant, rather than
correcting the error years later, intended to compensate the first respondent
fairly at that time.

[8] The Trust, contrary to its undertak ing to revert to the applicant with a proposed
amount, failed to do so. Moreover, the Trust did not at that stage raise any

amount, failed to do so. Moreover, the Trust did not at that stage raise any
objections and/or concerns over the encroachment. It bears mentioning that a
similar encroachment exists between Portion 1 and Portion 3. The owner of

Portion 3 however has not taken any issue with the encroachment and instead
has agreed to the regularisation of thereof without any demand for
compensation.

[9] The issue between the applicant and the Trust received no genuine attention
until November 2023 when the Trust issued the applicant with a letter of
demand demanding that the encroachment be removed. TheTrust did not insist
on a new boundary wall being erected in the correct location.

[10] The parties , not able to resolve the dispute between them , approaches this
court for resolution and proposes the following respective relief:
The Applicant
a. Authorising the applicant to effect the registration of an encroachment
servitude in perpetuity in favour of Portion 1, burdening Portion 2, over a
portion of land by which Portion 1 is encroaching upon Portion 2 by 3,45
square meters as more fully depicted in the surveyor diagrams attached to
the founding affidavit (“the encroachment area”);
i. against payment by the applicant to the Trust for the fair market
value of the encroachment area’
ii. the fair market value is to be determined by an expert land valuer
nominated and appointed either by agreement between the parties
within 20 (twenty) days of this judgment, failing such agreement, by
an expert land valuer nominated by the South African Ins titute of
Valuers, the costs to be borne by the applicant;
iii. the costs of the registration of the encr oachment servitude to be
borne by the applicant;
iv. the Trust be ordered to sign and/all documents necessary to effect
the registration of the encroac hment servitude in perpetuity within 7
(seven) days of demand by the applicant ’s conveyancer, failing
which signature for any reasons, the sheriff be authorized to sign
such documents;
v. the Registrar of Deeds is ordered to attend to the registration of t he
servitude upon application for same having been applied for by the

applicant’s conveyancers , whether the servitude documents are
signed by the Trust or by the sheriff.
b. In the alternative to prayer a, the applicant seek s an order entitling it to
take transfer of the encroachment area:
i. against payment by the applicant to the Trust for the fair market
value of the encroachment area;
ii. the fair market value is to be determined by an expert land valuer
nominated and appo inted either by agreement between the parties
within 20 (twenty) days of this judgment, failing such agreement, by
an expert land valuer nominated by the South African Institute of
Valuers, the costs to be borne by the applicant;
iii. the costs of the regi stration of the transfer of the encroachment area
are to be borne by the applicant, such costs to include the surveyor’s
costs, surveyor general costs, subdivision costs and any transfer
duty);
iv. the Trust be ordered to sign and/all documents necessary t o effect
the transfer of the encroachment area within 7 (seven) days of
demand by the applicant’s conveyancer, failing which signature for
any reasons, the sheriff be authorized to sign such documents;
v. the Registrar of Deeds is ordered to attend to the registration of the
transfer of the encroachment area upon application for same having
been applied for by the applicant’s conveyancers, whether the
servitude documents are signed by the Trust or by the sheriff.
The Trust
c. The Trust on the other hand see ks the vindication of the encroachment
area, including the demolition and rebuilding of boundary wall.

THE LEGAL PRESCRIPTS
[i] Common-Law Right to Removal vs Court’s Discretion
[11] In terms of the common law, a landowner whose property is encroached upon
by a neighbour’s building or structure has a clear right to demand removal of
the encroachment. In Smith v Basson 1, the court confirmed that a mandatory

1 1979 (1) SA 559 (W)

interdict or a removal order is available to compel a neighbour to remove an
encroaching structure, since every landowner has a duty not to deprive an
adjacent owner of possession of their property. 2 This reflects the traditional
principle that one should not unlawfully build on or over someone else’s land.
Thus, as a point of departure, the Trust, prima facie has the right to insis t that
the boundary wall be demolished, and the encroachment ended.

[12] However, South African courts have also recognized that strictly enforcing
removal in every case can lead to unfair or impractical outcomes. In recent
decades, courts have developed a discretion to deny demolition and award
compensation instead in appropriate circumstances. 3 This aligns with the trend
towards balancing the rights of the land owner against considerations of equity,
hardship, and public policy. Whilst an owner is ordinarily entitled to the removal
of an encroachment, a court may depart from that primary remedy in
exceptional cases to avoid an unjust result. 4 The Western Cape High Court in
Mbane supra summarized the position , i.e the default remedy for
encroachment remains removal, but the court has a wide, general discretion , in
appropriate circumstances, to award damages instead of demolition.

[13] The court’s discretionary power was first acknowledged in Rand Waterraad v
Bothma.5 In th at case, the court undertook a comprehensive review of old
authorities, including the so -called “ year and a day ” rule and concluded that
there is no automatic prescription or time -bar that deprives the affected owner
of the remova l remedy. 6 Even so, the court in Rand Waterraad supra
emphasized the need to balance the interests of both parties and held that only
exceptional circumstances would justify deviating from the normal rule of
demolition. In other words, a court will not lightly refus e an innocent

2 Mbane v Gxenya and Another (14211/2022) [2023] ZAWCHC 91 (2 May 2023)

2 Mbane v Gxenya and Another (14211/2022) [2023] ZAWCHC 91 (2 May 2023)
3 See: Compulsory Transfer of Encroached – Upon Land: A Constitutional Analysis; Z
Boggenpoel
4 Mbane supra at [41]
5 1997 (3) SA 120 (O)
6 The “year and a day” rule – an old Dutch notion that of an encroachment stood for a year
without objection to the owner lost the right to removal, was found not to be part of the South
African Law.

landowner’s demand to reclaim their property; it must be convinced that
fairness strongly favours leaving the encroachment in place.

[ii] Tacit Consent, Delay, and Estoppel (Acquiescence)
[14] The encroachment has existed for approximately 22 years, during which the
Trust, on the odd occasion, raised the issue , primarily with the homeowners’
association, but took no formal action address the encroachment. This failure to
act can be interpreted as a form of tacit consent, or at least acquiescence, to
the wall’s position. It could be argued that the Trust, effectively for 22 years
allowed for the encroachment to persist and it would be unfair to now insist on
demolition. In law, such a pproach would be framed in terms of estoppel or
acquiescence – essentially claiming the Trust’s inaction amounted to an implied
permission or waiver of strict rights. Indeed, the court in Rand Waterraad supra
observed that a long delay in bringing an encroachment claim might signal
acquiescence or lack of real prejudice, and it noted that one could explain the
decision to award compensation in that case on the basis of prescription or
estoppel due to the delay. A 22-year delay is substantial and would weigh
heavily in the applicant’s favour as a n “exceptional circumstance ” justifying a
departure from the default rule. The fact that the Trust only periodically objected
without taking action may suggest that the encroachment was not viewed as an
urgent or intolerable infringement until now.

[15] That said, mere inaction or passive knowledge of an encroachment does not
automatically strip a landowner of their rights. True “ tacit consent ”
(acquiescence) requires mor e than just silence . There must be evidence that
the landowner knowingly waived their right or led the encroacher reasonably to
believe the situation was accepted. In Higher Mission School Trustees v
Grahamstown Town Council 7, the court held that even if a plaintiff should

Grahamstown Town Council 7, the court held that even if a plaintiff should
have known of an encroachment for some time, that alone was insufficient to
prove they acquiesced to it. In casu , the complainant did voice objections ,
which may indicate that they never truly accepted the wall as correct, which
undermines any claim that they gave full consent. There was no express

7 1924 EDL 354

consent or agreement about the shifted boundary – only a failure to enforce
their rights sooner.

[16] However, on the authorities referred to , the 22-year inaction constitutes a
strong factor in equity . The long delay could indicate that the encroachment
caused no serious interference with the Trust’s use of the land . Perhaps the
affected area was minor or not needed, and that Trust tolerated the wall for
over two decades. This might not meet the strict test for estoppel which would
bar the claim entirely, but it certainly favours the applicant’s plea for a
compensatory solution rather than demolition.

[iii] Balancing Prejudice: Demolition v Compensation
[17] Encroachment disputes, it seems to me, are ap proached from a neighbour-law
reasonableness approach. The goal is to harmonise the neighbouring owners
interests and reach a fair outcome in light of all circumstances. As the Cape
High Court in Mbane supra8 explained, the aim is to achieve “harmony in the
relationship between neighbours when conflict arises” , rather than a rigid
enforcement of bare legal rights. This means weighing the relative prejudice
each party would suffer from either granting a demolition order or denying it.

[18] In Trustees of the Brian Lackey Trust v Annandale 9 the defendant’s building
encroached on the plaintiff Trust’ s land. Initially, the Trust offered to buy the
affected portion and even the whole property from the neighbo ur, indicating a
willingness to resolve the matter with money. Negotiations failed and instead
the neighbour demanded an exorbitant sum, and the di spute went to court. The
court confirmed that it had a wide equitable discretion in encroachment cases
and that considerations of reasonableness and fairness are paramount in
neighbour-law disputes. Significantly, it was noted that courts have a natural
aversion to ordering the demolition of valuable structures where a monetary
compensation could suffice . The court found that the neighbo ur (Annandale)

compensation could suffice . The court found that the neighbo ur (Annandale)
had effectively been open to selling the land for a price before, so his insistence
on removal appeared dri ven by profit rather than genuine injury. The

8 At [55]
9 2004 (3) SA 281 (C)

encroacher’s hardship if forced to demolish was far greater than the
inconvenience to the landowner if the structure remained. Therefore, the court
exercised its discretion to deny the demolition. It ordered th at the encroaching
structure could remain and declared that the neighbo ur was not entitled to
demand its removal, provided that the encroaching party pay compensation.
This outcome demonstrates that where an affected owner has shown
willingness to accept c ompensation or has delayed so long that compensation
seems fair, a court will be reluctant to grant a demolition order. The guiding
principle is that no one should unreasonably refuse a monetary solution if the
intrusion is slight and money can make them whole.

[19] In Rand Waterraad v Bothma 10 a public utility’s structure encroached on
private land. The court similarly s tressed balancing the parties’ interests and
noted that if strict adherence to the common law rule would lead to a grossly
unjust result, the court is justified in deviating from it. In Rand Waterraad supra
one factor which the court regarded as relevant t o its decision was the
landowner’s long delay in objecting suggesting the encroachment was not
causing significant harm. The court used its equitable discretion to permit the
encroachment to remain with compensation, rather than order removal.

[20] In Phillips v South African National P arks Board11 the Eastern Cape High
Court, a large “ predator-proof” fence was built by SANParks that encroached
substantially incorporating a pproximately 20 square metres of the neighbo ur’s
land. The landowner sued for removal of the fence. SANParks argued in
support of leaving it in place and even asked the court to order a transfer of the
encroached land to them if the fence st ayed. The court balanced the hardships
and found that the prejudice t o the landowner if the fence remained ( loss of a
substantial portion of land and property rights ) outweighed the prejudice to

substantial portion of land and property rights ) outweighed the prejudice to
SANParks of moving the fe nce. For the fence to remain, the landowner would
effectively be forced to surrender ownership of the str ip of land behind the
fence. A forced sale , the court deemed unjustifiable and constitutionally
problematic. The court noted there was no compelling reason to deprive the

10 1997 (3) SA 120 (O)
11 2010 JDR 0480 (ECG)

owner of his property by transferring it to the encroacher, and doing so without
a la w authorizing such deprivation would violate Section 25(1) of the
Constitution. Consequently, the court refused compensation as a solution and
ordered the fence to be relocated to the true boundary. Phillips supra
demonstrates that that if leaving the encr oachment would significantly impair
the owner’s property rights or require effectively expropriating land, the courts
lean toward removal.

[21] In Roseveare v Katmer 12 a boundary wall encroaching in segments with a
kink. The court took a split approach and it ordered demolition of the portions of
the wall that were significantly encroaching but allowed a minor encroaching
portion to remain in place. Uniquely, the court went further and ordered the
registration of a servitude in favo ur of the encroacher over that remaining
encroaching area. In other words, it formally adjusted rights by granting the
encroacher a legal servitude for the wall. This approach was intended to clarify
the parties’ rights going forward. However, legal commentators have criticized
this solution as potentially unconstitutional absent explicit statutory authority,
since it forces an unwilling landowner to endure a permanent property right in
favour of the neigh bour The key takeaway is that the courts are willing to be
flexible – even creative – in resolving longstanding encroachments, sometimes
tailoring the remedy by removing what is untenable and legalizing what is trivial
or benign.

[22] In Mbane v Gxenya13 a boundary wall built in the wrong place was discovered
after about 15 years, and the encroached upon owner urgently wanted to build
on that area. The court reaffirmed that the primary remedy is still removal a nd
placed the burden on the encroaching party to prove why compensation should
be substituted. Because the encroached owner in Mbane supra never
acquiesced or showed willingness to accept money , instead she objected as

acquiesced or showed willingness to accept money , instead she objected as
soon as the encroachment was known an d needed the land for a building
project. The court saw no reason to spare the wall. The encroacher’s claimed
hardship, losing a parking space , was minimal and unsupported by evidence.

12 2013 JDR 0329 (GCJ)
13 (14211/2022) [2023] ZAWCHC 91 (2 May 2023)

However, the prejudice to the complainant if the wall stayed, she’d be unable to
extend her house as planned, losing significant property value , was far greater.
The court held that financial compensation was not an adequate alter native in
those circumstances, because money could not enable her to use her land as
intended. Thus, demolition was ordered, with the court pointedly noting that an
encroacher cannot simply propose to pay money without solid grounds to deny
the neighbo ur t he use of their land. Mbane supra underscores that when an
encroachment actively interferes with the owner’s developmental plans or use
of their land, courts will enforce the owner’s property rights and not force them
to accept damages.

[23] From these ca ses, certain practical guidelines can be distilled. The court will
compare the harm caused to each side by either outcome. Relevant f actors
include:
a. The extent of encroachment, minor or substantial area, the usefulness or
value of the structure (is it a major building or a simple fence?).
b. The cost and feasibility of removal (would demolition be disproportionately
expensive or even wasteful?).
c. The behaviour of the parties ( did the encroacher act in good faith or
deliberately?).
d. Did the owner protest or tacitly allow it to continue?; and
e. Whether compensation can truly make up for the loss to the landowner,
especially if the owner’s plans are thwarted, no sum of money may
substitute for the use of their own land.

[24] Courts also consider broader notions of fairness and neighbourliness – for
example, whether one party is acting out of spite or opportunism rather than
genuine injury. Importantly, if the innocent owner has in fact been willing to
accept compensation or negotiate (as evidenced in Brian Lackey Trust supra),
a court will be reluctant to grant a demolition or der against the encroacher.
Conversely, if the owner always insisted on removal and has legitimate need of

Conversely, if the owner always insisted on removal and has legitimate need of
the land, the court gives significant weight to their property right.

[25] The applicant objects to the demands made by the Trust on the grounds that
(a) a demolition of the boundary wall will put her at a security risk and remove
all privacy between the two properties , (b) diminish the value of Portion 1 and
(c) she would not be able to drive her vehicle around to the parking area
situated on the side of her residence and in which instance she will not have
enough space within the boundary of Portion 1 to do so. I find no merit in the
first two grounds. A security risk , if on existence, given the fact that Portion 1 is
situated in an estate will be temporary until the new wall is constructed. The
apparent diminishing value is non -existent. The encroached area is part of
Portion 2 and should not form part of Portion 1, especially in determining the
value of Portion 1. However, the third ground may have some merit.

[26] The applicant continues to allege that the Trust , ever since 2007, at no stage
used or raised any issue regarding the encroach ed area. However, so the
applicant alleges, when she intended to sell Portion 1, the Trust de cided to
install a water purification plant on the encroach ed area. The Trust furthermore
confirmed for the first time in these proceedings, that it was not interested in
any form or compensation in exchange for the ownership / right to use the
encroached area. The Trust went further and threatened the applicant with
court action seeking an order interdicting the intended sale and transfer of
Portion 1 if its demands were not complied with, i.e the demolition of the
boundary wall.

[27] The Trust disputes the extent of the encroach ed area. The applicant state s the
encroached area at 3.45 square meters whereas the Trust sets it at
approximately 23 meters in length or 11 square meters . The Trust alleges that
the encroachment extends the entire boundary wall between the two properties.

[28] The Trust denies that it was u nderstood by all of the interested parties that the

[28] The Trust denies that it was u nderstood by all of the interested parties that the
servitude diagrams were or would be rectified to regularise the encroachment
by Nedbank / BOE. At least, the Trust denies such an understanding on its part.

[29] In relation to the allegations concerning the Trust’s inaction since 2008 the
Trust, in vague and unsubstantiated remarks, alleges that the issue was

continuously raised at homeowners’ meetings. Save for the minutes of the
meetings of 5 September 2006 , 11 June 2007 and 11 September 2008 , no
other minutes of meetings recording the raising of this issue by the Trust are
provided. And even on the Trust’s version, the minutes do not record a clear
and unequivocal insistence on the demolition of the boundary wall. To the
contrary, the minutes of 11 June 2007 records the Trust ’s willingness or
openness to entertain the offer made by the applicant.

[30] Even if the version of the Trust is to be accepted that the issue was raised
repeatedly at homeowners’ meetings, it was resolved at the meeting of 11
September 2008 that the issue did not concern homeowners’ association and
instead the issue was between the respective owners of Portion 1 and 2. The
Trust clearly intended to resolve the issue through the homeowners’
association, however when the decision was made on 11 September 2008 that
it did not concern the homeow ners’ association, the Trust should reasonably
have changed tact. Notwithstanding, the Trust alleges that it again attempted to
raise the issue at subsequent meetings.

[31] The Trust alle ges that no inference should be drawn from the fact that it failed
to take legal action sooner, from 2003 until 2024, against the applicant to obtain
a court order for the demolition of the boundary wall. The explanation consists
of a divorce in 2006, the raising of three children and the running of his own
business left the Trust hopeful that the issue could be resolved amicably. The
believe that the issue would be resolved is simply not born out by the Trust’s
own account of events, especially the exchanges between the applicant a nd
the Trust in a meeting , the date of which is not provided, but at which meeting
the applicant apparently said to the Trust: “ I am not discussing this with you ”,
”Let me shut you down right now ”, “If this is about the wall, I am not discussing

”Let me shut you down right now ”, “If this is about the wall, I am not discussing
it”, “Go f..k yourself”, “F..k you ” and “ Why don’t you sue me. I’ve got the best
lawyers in town. They will chew you up and spit you out.”

[32] I am not persuaded by the Trust ’s explanation for having failed to take any
decisive action earlier. Equally, the explanation advanced why the Trust, after
all the years of having done no more that rai sing the issue at homeowners’

meetings, decided to , at this stage only, insist that the e ncroached area be
returned, is less than convincing. This is especially true taking into account that
the Trust for a period in excess of 20 years paid for municipal services and
rates and taxes in respect of the entire extent of Portion 2 which included t he
encroached area and of which it had no access to or use and enjoyment. It was
only when it became known that the applicant intended to sell Portion 1 that the
Trust decided to take decisive action. And the reason advanced, is the sudden
need to install a water purification plant including the drilling of a bore hole and
the best location for such plant, happens to be in or at the encroached area.
The Trust’s assertion that the encroached area was the most suitable location
for the intended plant is founded on the expert view of a certain Mr Roy Cross
of Raincor Irrigation Maintenance CC . Save to rely on his 20 years of
experience in the industry, Mr Cross provides no factual basis for his
conclusion as far as the location of the plant is concerned.

[33] It is trite that a court is not bound by the opinions expressed by an expert and
that the court is required to determine the issue, even of a n expert nature, for
itself. Rule 36(9)(b) requires of a litigant who intends to lead the evidence of an
expert to deliver a summary of such expert opinion and his / her reasons
therefor. In Coopers (SA) (Pty) Ltd v Deatshe Gesellschaft f ür
Schädlingsbekämpfung mbH14held that the summary must at least state the
sum and substance of the facts and data which lead to the reasoned conclusion
(i.e the opinion). IN this regard Wessels JA stated:
“As I see it , an expert’s opinion represents his re asoned conclusion
based on certain facts on [sic] data, which are either common cause, or
established by his or own evidence or that of some other competent
witness.”

[34] It is rather challenging to understand and appreciate the value of the evidence

[34] It is rather challenging to understand and appreciate the value of the evidence
presented by Mr Cross as there is simply no way of establishing on what basis
he arrives at his conclusions. It is impossible to interrogate his evidence. Mr
Cross refers to “the high incidents of wate r outages ”, he states that: “ After

14 1976 (3) SA 352 (A) at 371B

looking around your property, and divining for water, the best spot for dril ling is
in my opinion on the north -east side over the wall from your swimming pool
pumphouse: the filtration on average will need a space roughly three meters by
one meter.”

[35] The fact that the applicant herself during November 2023 installed a borehole
and water filtration system is of no moment. The issue is not whether a need
was established for supplementation and filtration of water resour ces. The
issue is rather the location where the system is to be established and according
to the Trust, the best place would be the encroached area. If this was indeed to
be accepted as correct, one does then wonder why the applicant’s system was
not installed and established at the encroached area. This may also explain
why Mr Cross did not provide any reasoning to his conclusions.

[36] The applicant alleges that the sudden need expressed by the Trust is
opportunistic, an allegation that is denied by the Trust. I think there is merit in
the allegation. When it became known that the applicant intended to sell Portion
1, the Trust, must reasonably have realised that the applicant would not be able
to sell the property unless the encroachment issue is resolved. It is for this
reason that the Trust, not having taken any steps to assert its rights for a period
of over 20 (twent y) years, sudden ly threatened to obtain an interdict against
any intended sale. The intended sale no doubt presented the Trust with a much
stronger position to force a bargain, a position which was manifestly weaker
prior to the intended sale . The fact tha t the Trust is not seeking any
compensation from the applicant is no answer to the allegation s of
opportunism.

[37] The Trust takes issue with the alleged use by the applicant of the encroached
area, i.e parking. The Trust alleges that the use of the encroached area by the
applicant is a matter of convenience only and not of necessity. At best for the

applicant is a matter of convenience only and not of necessity. At best for the
Trust, the current use of the encroached constitutes a dispute of fact which I
have to approach on the version pre sented by the Trust. The (undisputed) fact
of the matter is this: - the status quo has been the order of the day for a period
over two decades if no more. The applicant may have used the encroached

area for a particular purpose in the past and the said use may change in future.
The issue is not for what purpose the encroached area was used and will
continue to be used. Instead, the issue is that the applicant has had the use of
the encroached area for an extended period of time. On the other hand, the
Trust, probably with reference to Mbane supra, seeks to establish an intention
that the encroached area for purposes of drilling a bore hole and that the
encroached area, is critical. I have already stated that I am not persuaded by
the sudden intended use ther eof and the importance to regain possession
thereof.

[38] Furthermore, the Trust, up and until these proceedings and in response to a
2007 tender for payment has at no stage outrightly rejected the tender. To the
contrary the 2007 minutes of the meeting of the homeowners’ association
contains the following recordal:
“[Ms Ferre ria] wants time to consider both possibilities – financial
compensation for her land or the reconstructions of the wall in a
mutually agreed position.”

[39] The possibility of accepting a tender for compensation instead of an insistence
that the wall be demolished, was repeated by the Trust’s attorney of record in
the letter of demand in 2023. More specifically, the letter records:
“… Further in this regard, whilst our client would be within its rights to
compel you to take transfer of that portion of our client’s property over
which the encroachment exists against payme nt to our client of the
value of such portion (in regard to which relief our client reserves its
rights) our client intends to make use of the portion of our client’s
property over which the encroachment exists.”

[40] On the disproportionality of prejudi ce to the relief claimed, I accept the
applicant’s version that (a) the current status quo has been the default position
for the last two decades, (b) the area of encroachment is rather small and
insignificant, (c) the Trust has not established that the encroached area is the

insignificant, (c) the Trust has not established that the encroached area is the
only place for the drilling of the intended bore hole, (d) the Trust has already
established an alternative or reserve water syste m, i.e the tanks, (e) the Trust

will be compensated for the encroached area, (f) the demolition and
replacement of the boundary wall will cause significant inconvenience, not only
to the immediate parties to these proceedings, but possibly other members of
the estate as well.

[41] If one therefore discards the suggestion that the boundary wall needs to be
demolished as it is the mo st suitable area for the drilling of the bore hole it
would seem to me all that remains of the Trust’s opposition to the application
and/or the counter application, is what was stated in Tru stees, Brian Lackey
Trust v Annandale:
“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 up on which his perceived
absolute rights as owner, irrespective of broader considerations of
social utility, economic waste and neighbourliness.”

[42] Against the aforesaid ci rcumstances I am of the view that the demolition of the
wall, in casu, will not promote the protection of the neighbourly relationship and
instead will serve the individual interest of the Trust only. Furthermore, the
demolition of the wall , in casu, does not establish a just and equitable result.
Instead, I am of the view that the applicant ’s proposed resolve to the impasse,
is the appropriate resolution.

[43] There are t hree further aspects that requires my attention. Mr Hollander,
appearing for the Trust argues that (a) the approach adopted by the applicant is
incompetent in that it is not open to the applicant to initiate steps to se ek the
relief that she claims. Instead, placing reliance on Fedgroup Participation
Bond Managers Ltd v Trustee, Capital Property Trust 15the applicant can
only do so reactively and in response to steps taken by the Trust to have the
wall demolished, (b) the extent of the encroached area is disputed and (c) the
determination of the amount of compensation , not an issue before this court, is

determination of the amount of compensation , not an issue before this court, is
complex and militates against the relief claimed.

15 2015 (5) SA 290 (SCA)

[44] Mr Hollander, correctly in my view concedes that the first objection by virtue of
the existence of the counter application, has become moot. The purported
dispute over the extent of the encroached area for present purpose is
irrelevant. The applicant’s relief is limited to an extent of 3 ,45 square meters.
No more. Lastly, the determination of the amount of compensation, is an aspect
that a subsequent court can and should be able, with the assistance of the
appropriate experts, be able to calculate. As such I am not convinced that the
further grounds of objections carry any merit thereto.

ORDER
[45] In the result I make the following order:
a. The applicant is entitled to take transfer of the portion of land by which the
applicant’s property is encroaching upon the first respondent’s property
(“the encroachment area”)
i. Against payment by the applicant to the first respondent for the fair
market value of the encroachment area;
ii. The fair market value of the encroachment area is to be determined
by an expert land valuer nominated and appointed either by
agreement between the parties within 20 (twenty) days of the
handing down of this court orde r, failing such agreement, by an
expert land valuer nominated by the South African institute of
Valuers, the cost to be borne by the applicant;
iii. The costs of the registration of the transfer of the encroachment area
are to be borne by the applicant (in cluding the surveyor costs,
surveyor general costs, subdivision costs and any transfer duty
payable);
iv. The first respondent is ordered to sign any/all documents necessary
to effect the transfer of the encroachment area within 7 (seven) days
of demand by the applicant’s conveyancers, failing which signature
for any reason, the sheriff is authorised to sign such documents;
v. The Registrar of Deeds is ordered to attend to the registration of the
transfer of encroachment area upon applica tion by the applicant’s

conveyancers, whether the transfer documents are signed by the
first respondent or the sheriff;
b. The first respondent is to pay the costs of this application on the attorney
and client scale.
NAME OF JUDGE
JUDGE OF THE HIGH COURT
JOHANNESBURG

For the Applicant:










For the Respondent:

Adv Marc Cooke
Email: cooke@counsel.co.za
Mobile: 083 415 8710
Instructed by Chantelle Gladwin -
Wood
HBGSchindlers Attorneys
Email:gladwinwood@hbgschilders.co
m
Mobile: 083 378 1916

Adv Louis Hollander
Email: lhollander@maisels3.co.za
cstock@maisels3.co.za
Tel: 083 889 2770
Instructed by Jeff Afriat – EFG Inc
Attorneys
Tel: 011 341 0510
Janita Correia – EFG Inc Attorneys
Email: Janita@efglaw.co.za
Tel: 082 562 6486