C
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG
In the matter between:
BELINDA JEAN CHARLTON
And
MITCHELL FARMING ENTERPRISES (PTY) LTD
THE SURVEYOR GENERAL: KWAZULU-NATAL
JUDGMENT
PC BEZUIDENHOUT J:
CASE NUMBER: 16864/2024P
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
[1] At the commencement of the argument I was informed that the application to strike
out portions of the answering affidavit by Applicant was not being pursued. It was not in
the court file and Applicant then withdrew the application and tendered the costs.
[2] Tne issue In tnis matter concern5 a dirt road along the boundary fence of two
adjoining properties in the Dargie area KwaZulu-Natal Midlands. The contention is that
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the road used by First Respondent at certain points encroaches into the property of
Applicant. Applicant therefore seeks that the encroached area be removed and the
affected area be restored to its original condition.
[3] This relief is opposed by First Respondent and First Respondent has also filed a
counter application that it be declared that First Respondent is entitled to the registration
of an encroachment servitude in respect of that portion which encroaches onto that of
Applicant and that Applicant needs to sign all necessary documents and if she refuses to
do so that the Sheriff is authorised to do so and that First Respondent to make payment
of R2 500.00 in compensation therefore. The counter application is headed Notice of
Counter Application and states that:
"Kindly take notice that the First Respondent intends making a counter application
to the above Honourable Court, simultaneously with the hearing of the main
application for an order in the following terms."
Mr. Ender referred to it as a conditional counterclaim but on my reading of the notice of
the counter application it is not such but is a specific counter application seeking specific
relief.
[4] Applicant purchased the property described as portion 34 (of 5) Dargie 913 during
June 2021. First Respondent purchased portion 33 (of 5) Dargie 913 during December
2020. These two properties boarder each other and were previously both timber farms.
It is common cause that when First Respondent purchased portion 33 it was a timber
farm with no residence and that First Respondent commenced building a residence there
after Applicant had purchased portion 34.
[5] It was contended by Applicant that First Respondent had a gravel road constructed
along the south western common boundary to give access to the residence which it built.
After the road had been constructed the fence was reinstated.
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[6] It is contended by First Respondent that it did not construct the road but it worked
on the road that was already there to shape it and harden it. It is unknown who
constructed the road and when it was constructed.
[7] Since January 2022 the road had become a bone of contention between the
parties. If one considers that Applicant only purchased the property during June 2021. It
is clear that very soon thereafter the issue of this road became a contention between the
parties.
[8] During September 2024 Applicant employed KM Surveyors to confirm whether the
reinstated road and fence was along the boundary and correctly positioned. In his report,
which was later confirmed by an affidavit, the land surveyor, in annexure "FA5 " concluded
that the said gravel road did encroach onto Applicant's property portion 34 (of 5) and
indicated on "FA5". This was brought to the attention of First Respondent who replied
that Applicant knew that the road was there when she purchased the property and
therefore tacitly consented thereto. There is a servitude registered over the property but
not where this road is. This appears from the drawing of the survey general. This is not
relevant in these proceedings. Applicant denied that she at any stage gave permission
or consent for a servitude where this gravel road was.
[9] A perusal of annexure "FA5 " indicates that for a distance the gravel road goes
along the boundary on the side of portion 34 (of 5) and then crosses into portion 33 (of
5).
[1 0] In limine it was submitted on behalf of First Respondent that there was a dispute
of fact in that Applicant in paragraph 12 of the founding affidavit referred to a construction
of a gravel road along the south western common boundary. This was disputed in
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paragraph 23 on page 45 of the answering affidavit of First Respondent where it
contended that it only hardened and shaped the said existing road. It was contended that
Applicant was bound by its predecessor in title and there was therefore a material dispute
of fact.
(11] Whether First Respondent built the road or merely improved it is irrelevant as this
does not create a dispute of fact as far as the issue before Court is concerned. It is a fact
which is uncontested that there was a road along the boundary and it was found by the
surveyor to encroach onto the property of Applicant. The fact that the road may have
been constructed by one of the previous owners who appears at some stage owned both
these properties also does not cause a dispute of fact. The report of the surveyor is not
disputed. It is also not contradicted and therefore it is clear that the road is encroaching
onto the property of Applicant. The point in limine that there is therefore a dispute of fact
is dismissed and the matter is to be decided on the facts as appear from the affidavits.
[12] There is no evidence to contradict the report and affidavit of the Surveyor Mr.
Khanyile nor is it disputed. It can therefore be accepted that it is encroaching. The
question which then arises is whether the encroachment must be removed or whether the
Court must exercise its discretion to ensure that a fair solution is found in the
circumstances. It was submitted on behalf of Applicant that First Respondent's structures
may not encroach onto the property of Applicant and if the parties could not agree that
the Court is to make a determination and I was referred to BSB International Link CC v
Readam South Africa (Pty) Ltd and Another 2016 (4) SA 83 (SCA). The encroachment is
in the report of the land surveyor, Mr. Khanyile, conclusive and there has been no expert
report to the contrary by First Respondent.
(13] On behalf of First Respondent, I was referred to the decision of Maroun v Trustees
(13] On behalf of First Respondent, I was referred to the decision of Maroun v Trustees
for the time being of the Red C herry trust & Others 2025 JDR 2944 (GJ) especially at
paragraphs 23 and 24 thereof. In paragraph 23 it refers to guidelines which courts have
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considered in deciding such matters which included whether the encroachment is
substantial, the costs of removal thereof, the behaviour of the parties, did the owner
protest or allow it to continue and whether compensation can truly makeup for the loss to
the land owner. It is further in paragraph 24 set out that the court must consider fairness
and neighbourliness. It further in paragraph 24 states:
"Conversely if the owner always insisted on removal and has legitimate need of
the land the court gives significant weight to the property right."
[14] In the matter of Trustees, Brian Lacky Trust v Annadale 2004 (3) SA 528 (0) it was
held that to grant a demolition would bode ill for the long term relationship between the
parties and remedy in damages would meet the justice of the case. There are also other
cases where the court found that compensation was the best solution. In this regard there
is the matter of Lombard v Fisher 2003 (1) All SA (0) 698 where it was held that because
of the exceptional nature of the case in that the two houses were next to each other and
they used one driveway of which the boundary was in the middle thereof could not in that
case allow the wall to be constructed on the boundary which is in the middle of the
driveway and ordered the applicant to construct its boundary wall closer to its property to
allow for a vehicle to pass next to it to the adjoining property.
[15] There are various cases dealing with these issues and each one has to be decided
on its own facts.
[16] It was submitted by Mr. Ender that the relationship between Applicant and First
Respondent is acrimonious as Applicant had at one stage locked the gate gaining access
to this road and that there is also other litigation pending between the parties.
[17] In the case of F edgroup Participation Bond Manager (Pty) Ltd v Trustee, Capita l
Property Trust & another 2015 (5) SA 290 (SCA) it also concerned the encroachment onto
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the land of the neighbouring property. The question which had to be decided therein was
whether an owner of land could approach a court for an order compelling the owner unto
whose property it was encroaching. In this case it referred to various cases where due
to the circumstances of each case compensation was granted. In paragraph 30 it refers
to an article by professor Boggenpoel where it states:
"Furthermore if the affected landowner does not want to give up his property, the
involuntary transfer of property that the court authorises with a transfer order may
be problematic in light of section 25 of the Constitution. The order will result in a
deprivation of property, which will have to comply with section 25(1 ). Additionally,
if the loss of property in case where the decision is made to leave the
encroachment in place and transfer the encroach upon land to be encroacher
amounts to expropriation of property, requirements of section 25(2)(3) of the
Constitution would also be applicable."
In paragraph 33 the judgment continues:
"Our law has always been careful to protect the right of ownership, particularly of
immovable property. It is a most important and extensive right. It is thus protected
by registration in the Deeds office. Limited real rights in land will also be required
to be registered. Silberberg and Schoeman 's Law of Property in dealing with the
exclusion of personal rights from the registration process states the following at 65
'The exclusionary approach indicates support for the notion that ownership is a
pinacol of/or the most important right within/a hierarchy of rights with limited real
rights following close at heal. Other rights are understood as being in stages of
inferiority to ownership as far as their protection in property law and publishing
thereof are concerned."'
[ 18] In her replying affidavit Applicant has set out what the loss would be for her if the
deprivation of the property which encroaches is left as she sets out the number of trees
deprivation of the property which encroaches is left as she sets out the number of trees
which cannot be planted as well as the income which could be derived therefrom. First
Respondent nowhere in its affidavits gives any indication of what it would costs for the
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relocation of the road. It merely disputes the boundary and where the corner posts would
be without any indication of the costs thereof and maintaining that the road can remain
where it is.
[19] Applicant has never agreed to compensation and has all along maintained that the
encroachment must be removed. What is stated in paragraph 24 of the Maraon decision
therefore applies.
[20] As I have already indicated the relief which First Respondent is seeking in its
counterapplication is also not possible especially in light of what was decided in the case
of Fedgroup Participation Bond Managers referred to above. In my view no case for such
relief has been made out. The counter application must therefore be dismissed.
[21] Further considering the acrimonious relationship between Applicant and First
Respondent it would appear to me that any further servitude which would have to be
registered over the property of Applicant would be problematic and further that the
calculation of the payment of compensation would develop into a large scale action when
there are already, according to Mr. Ender, various actions pending between the parties.
[22] Having considered the submissions, the diagram and report of the surveyor, the
relevant case law and the acrimonious relationship between the parties and applying the
discretion that I also have I am of the view that to grant compensatory relief would not be
appropriate in the circumstances.
The following order is m ade:
1. Applicant is granted leave to withdraw the application to strike out and is ordered
to pay First Respondents costs.
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2. I grant an order in terms of paragraphs 1, 2 and 3 of the Notice of Mo tion.
3. The counterapplication is dismissed with costs.
PC BEZUIDENHOUT J.