Dias v Petropulos and Another

• Jurisdiction: South Africa
• Judgment Date: 30 July 2018
• Citation: 2018 (6) SA 149 (WCC)

Dias v Petropulos and Another
2018 (6) SA 149 (WCC)

2018 (6) SA p149

Citation	2018 (6) SA 149 (WCC)
Case No	22639/2009
Court	Western Cape Division, Cape Town
Judge	Bozalek J
Heard	July 30, 2018
Judgment	July 30, 2018
Counsel	RWF MacWilliam SC for the plaintiff.; JG Dickerson SC (with M Steenkamp) for the first defendant.; L Wessels for the second defendant.; M Seale SC for the first third party.; S Olivier SC for the sixth third party.

Flynote : Sleutelwoorde

Land — Lateral support — Duty to maintain lateral support between contiguous pieces of land — Scope of — Extending not only to land in its natural state but also to land with buildings on it, provided that such land not so G unreasonably loaded by buildings as to place disproportionate or unreasonable burden of lateral support on neighbouring land.

Land — Lateral support — Duty to maintain lateral support between contiguous pieces of land — Breach of — What constitutes failure to provide lateral support — No closed list — Not confined to support maintaining area of H excavation, irrespective of what further consequences excavation having for stability of contiguous land — In present case, removal of lateral support manifesting as slope mobilisation, causing damage to plaintiff's property.

Headnote : Kopnota

The plaintiff's residential dwelling was damaged by the mobilisation of the scree I mountain slope on which it was located. In his action for damages against the owners of two properties contiguous to his, the plaintiff claimed that the slope mobilisation was caused by excavations on the defendants' properties which amounted to a breach of the duty of lateral support they owed to his property. The issues, separated in terms of rule 33(4), were:

•

Whether a common-law duty to provide lateral support to plaintiff's property was owed by each of the first and second defendants' properties. J

2018 (6) SA p150

(The A first defendant submitted that, as under English law, it extended only to land in its natural state.)

Held

There was no authoritative or binding decision in our law limiting a landowner's right of lateral support to the land in its natural state only, as was the case in English law. There were, furthermore, cases where it was held that the B right extended to support to buildings on the land. (At [49].)

However, where a property had been unduly or unreasonably loaded through the erection of disproportionately large or heavy structures, it would seem unfair that a neighbouring piece of land should attract an equivalently onerous duty of lateral support. The view that the duty of lateral support in relation to contiguous pieces of land was owed to buildings as well, was therefore too broad a formulation of the right or duty of lateral support — C particularly where the contiguous parcels of land were situated on a slope.

Our law in regard to the right of lateral support was squarely located within the law of neighbours in which one of the guiding principles was reasonableness. There was therefore no bar to the concept of reasonableness playing a role in determining the scope of the duty of lateral support, more particularly in determining whether a duty of lateral support extending to D buildings could be limited where the property damaged by a breach of this duty had been unreasonably loaded by artificial constructions. Therefore, the appropriate approach was to hold that the scope of duty of lateral support extended not only to land but also to buildings, save where such land had been unreasonably loaded so as to place a disproportionate or E unreasonable burden on the neighbouring land. On the evidence, there was no basis to find that the plaintiff had unreasonably loaded his property. (At [60] – [63] and [65].)

•

Whether excavations carried out on each of the defendants' properties breached this duty of lateral support, and if so whether that caused the slope mobilisation.

Held F

The duty of lateral support was not confined to such support as would maintain the face of an excavation, irrespective of what further consequences an excavation may have for the stability of contiguous land. There was no closed list of what constituted failure to provide lateral support. Here, the removal of lateral support manifested as mobilisation and subsidence of the G scree slope. (At [70], [108], [110], [115], [130]

On the evidence, plaintiff's dwelling was properly constructed, and in excellent condition, structurally and otherwise, before the excavations on defendants' land. The overwhelming probability was that, had the first defendant not effected his excavation, no slip circle failure would have occurred. (At [70] and [138]).

Cases cited

Southern Africa H

Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA) ([2007] 2 All SA 567; [2006] ZASCA 118): applied

Coronation Collieries v Malan 1911 TPD 577: referred to

Demont I v Akals' Investments (Pty) Ltd and Another 1955 (2) SA 312 (N): not followed

Douglas Colliery Ltd v Bothma 1947 (3) SA 602 (T): referred to

East London Municipality v South African Railways and Harbours 1951 (4) SA 466 (E): not followed

Gijzen v Verrinder 1965 (1) SA 806 (D): dicta at 810E and 810H – 811C J applied

2018 (6) SA p151

Gordon v Durban City Council 1955 (1) SA 634 (N): not followed A

Grieves v Anderson; Grieves v Sherwood (1901) 22 NLR 225: followed

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) ([1989] ZASCA 138): dictum at 700F – G applied

Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA) ([2014] ZASCA 113): dictum in para [15] applied

Johannesburg Board of Executors and Trust Co Ltd v Victoria Building Co Ltd B (1894) 1 Off Rep 43: dictum in para [48] applied

Karroo Meat Exchange Ltd v Mtwazi 1967 (3) SA 356 (C): dictum at 359B – G applied

Laws v Rutherfurd 1924 AD 261: dictum at 263 applied

Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) (2013 (2) BCLR 129; [2012] ZACC 30): dictum in paras [40] – [41] considered C

London and SA Exploration Company v Rouliot (1890 – 1891) 8 SC 74: applied

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384): applied

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): dictum in para [25] applied D

P v P 2007 (5) SA 94 (SCA): dictum in para [16] applied

Phillips v South African Independent Order of Mechanics and Fidelity Benefit Lodge and Brice 1916 CPD 61: dictum at 65 applied

R v Vilbro and Another 1957 (3) SA 223 (A): applied E

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): dictum at 108E applied

Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA): dictum in para [19] applied

Stock v Stock 1981 (3) SA 1280 (A): referred to.

England

Dalton v Angus (1881) 6 AC 740 : referred to. F

Singapore

Xpress Print Pte Ltd v Monocrafts Pte Ltd [2000] 3 SLR 545: referred to.

Case Information

RWF MacWilliam SC for the plaintiff. G

JG Dickerson SC (with M Steenkamp) for the first defendant.

L Wessels for the second defendant.

M Seale SC for the first third party.

S Olivier SC for the sixth third party.

An action for damages. H

Order

1.

It is declared that:

1.1

The first and second defendants owed the plaintiff a duty to provide lateral support to the plaintiff's property. I

1.2

The excavations carried out on the first defendant and the second defendant's property in May or June 2008 breached this duty of lateral support, as a result whereof the scree slope, on which the plaintiff's property and residence were situated and constructed, mobilised and subsided in or about June and July 2008. J

2018 (6) SA p152

1.3

A The first defendant and the first third party are, subject to para 1.4 below, to pay the plaintiff's costs jointly and severally, the one paying, the other to be absolved, including the qualifying expenses of Ms Papanicolaou, Dr McStay and Mr Van Gyssen.

1.4

In relation to the separation application the plaintiff is to pay B two-thirds of the first defendant and first third party's costs therein.

Judgment

Bozalek J:

[1] C Commencing in October 2009, the plaintiff, in his capacity as the owner of a residential dwelling situated at 32 Theresa Avenue, Camps Bay, instituted a damages action against his neighbours, the first and second defendants, for damage caused to his property. I shall also refer to the plaintiff's property as 'the Dias property'. The plaintiff's case was that the damage to his property was caused by the mobilisation in June D 2008 of the scree mountain slope on which it was located. That slope mobilisation, the plaintiff's case proceeded, was caused through breaches by the defendants of the duty of lateral support they owed to the Dias property. The first defendant, Mrs Marina Petropulos, is the owner of one of the neighbouring properties, namely, 15 Barbara Road, Camps E Bay. I shall also refer to that property, which prior to 2008 was an unimproved erf, as 'the Naumann property', which is the surname of her husband. Mr Naumann is a builder and was responsible for all excavation work and building on the Naumann property which played a critical role in this matter. I shall also refer to the property which was at all material times owned by the second defendant, Mr Dawid Venter, as 'the F Venter property'.

[2] Thereafter, at the instance of either the first or second defendant or at the instance of a third party, six third parties were joined. The first of them, Nik Moroff and Associates CC (Moroff), is a professional structural-engineering practice which was joined in the action by the first G defendant. She alleged that Moroff (or its predecessor) was appointed as the project engineer for the...