Chundhur v Rampersad

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Henriques J
• Judgment Date: 24 June 2022
• Court: KwaZulu-Natal Local Division, Durban
• Hearing Date: 14 February 2022
• Docket Number: D7934/2020

Henriques J:

Introduction:

[1]

The application which serves before me relates to an encroachment and the enforcement of the owner's right to seek an order from the courts for the removal of such encroachment.

[2]

The principle of the common law remedy lies in the owner's right to the use and enjoyment of his property free from any interference. [1]

The facts giving rise to this application:

[3]

It is common cause that the applicant and respondent are neighbours in a sectional title complex described as Lea Gardens situate at 116 Naicker Road, Shallcross, Durban. The applicant is the owner of unit 5 and the respondent is the owner of the adjacent unit 6. The applicant, who took occupation of the property during February 2019 and thereafter purchased it, was informed by the erstwhile seller that the current fence line between the two properties did not reflect the official boundary between the two properties.

[4]

The report filed by the land surveyor, Rajan Govender, accurately depicts the beacons in respect of the applicant's and respondent's properties and the encroachment of the respondent's driveway and the portion of the carport onto the applicant's property. From the date of acquisition of the property by the applicant, the issue of the encroachment was not officially addressed nor resolved by the parties or

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any statutory body.

[5]

It is further common cause that other units within the sectional title scheme are also affected by encroachments relating to the location of the individual units respective driveways.

The parties contentions:

[6]

The applicant primarily places reliance on the common law principle as elucidated in the introduction and seeks removal of the encroachment. The respondent has raised several points in limine including lis pendens and non-joinder and opposes the relief sought. For the reasons set out hereunder, these preliminary points in limine will not be adjudicated upon and will be dealt with in the judgment to follow once there has been compliance with the orders.

Analysis:

[7]

At the outset it is patently clear that the catalyst precipitating this application related to a dispute between the respondent and the applicant over a bougainvillea tree which dispute arose on or about July 2020. Such dispute galvanised the applicant into obtaining the report from the land surveyor in August 2020, the contents of which report was rendered somewhat superfluous as the applicant already had previous knowledge of the encroachment.

[8]

The timing of the procurement of such report is not a coincidence in my view as clearly illustrated by the text messages annexed to the respondent's papers. Against the background of the applicant having constructive knowledge of the encroachment in regard to his property as at the date of acquisition, the applicant's denial of the catalyst to the dispute as alleged by the respondent is improbable.

[9]

Common law principles relating to encroachments have developed to the extent that courts are vested with a wide discretion in dealing with encroachments as opposed to adopting the strict common law principle of ordering the removal or

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Henriques J

demolition of such encroachment. [2] 'The right of an owner to demand removal would, in theory, seem to be absolute for he is vindicating the freedom of his property from unlawful interference.' [3] The common law position relating to encroaching structures accordingly applied a strict principle in favour of the owner of a property demanding the removal of any such encroachments, which was traditionally described as a default remedy.

[10]

The legal position has been developed to the extent that the law apropos encroaching structures has progressed away from the default remedy referred to above.

[11]

In Phillips [4] , Rand Waterraad v Bothma en 'n Ander [5] and Trustees, Brian Lackey Trust v Annandale [6] the courts entrenched the principle that in deciding whether or not to enforce the removal of an encroachment, the court was vested with a wide discretion.

[12]

In exercising such discretion, a court is enjoined to apply a policy-driven approach as to whether the removal is warranted and necessary. Alternatively, whether other forms of relief should be considered, for instance, compensation or transfer of the encroached upon land.

[13]

The consideration of transfer of the encroached upon land was discussed in the Phillips case and has led to an academic debate as to whether a court is empowered to order the transfer of encroached upon land, and the consequent loss of property and deprivation of property. Whether such order is consistent with the Constitutional imperatives referred to in s 25 of the Constitution has notably raised constitutional debate.

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Henriques J

[14]

The judgement in the Phillips case did not extend to the transfer of the encroached upon land hence the obiter dictum remains a moot point that does not require exhaustive analysis by this court. [7]

[15]

In the present application, neither the applicant nor the respondent has seen fit to make submissions regarding policy considerations or alternative remedies to resolve the encroachment dispute. Given the wide...