Dorland and Another v Smits

• Jurisdiction: South Africa
• Judge: Comrie J, Louw J and Van Heerden J
• Judgment Date: 24 April 2002
• Citation: 2002 (5) SA 374 (C)
• Docket Number: A629/2001
• Hearing Date: 01 February 2002
• Counsel: A C Webster for the appellants. A D Brown for the respondent.
• Court: Cape Provincial Division

Comrie J:

The appellants and the respondent are neighbours. The appellants jointly own and occupy No 53 Palmyra Road, Claremont. They live there with their young children. On part of the property, furthest from the respondent, the first appellant conducts a veterinary practice. The respondent owns No I 55, where she resides with her husband, who is an engineer. Among their visitors are their young grandchildren. The area is a built-up residential suburb which is variously described by the respondent in the papers as 'upmarket' or 'middle-class'.

The two properties are divided by a boundary wall or walls, about 32 J

Comrie J

metres in length. Starting at the roadside the wall is a Columbia block A wall some 20 metres long and 2,1 metres high. Thereafter, at the rear of the properties, there is a vibracrete wall some 12 metres long. It appears from the photographs to be a few centimetres shorter than the block wall. The vibracrete wall is located entirely on No 53, the appellants' property. The Columbia block wall was constructed at the respondent's instance and expense in about 1980. It straddles the B boundary, but most of it is located on the respondent's side. According to her husband's calculation, only 12,3% of this wall is on the appellants' side of the boundary.

The respondent's property, No 55, was remodelled in the early 1980s to a design by the noted architect, the late Prof Roelof Uytenbogaardt. The block wall is an integral part of the design, C joining the interior and exterior of the house in a special way. Thus the rooms have no curtains. The house has been featured at an exposition and in more than one magazine. At and near the common boundary are various trees, plants, creepers and part of a grapevine; they are tended by the respondent and her gardener. Gardening is one of the respondent's pastimes. Her grandchildren, when they D visit, like to climb in the trees near the wall.

At about 6 pm on 17 December 1999 an intruder gained access to the appellants' kitchen. They suspect that he either entered or exited the property by climbing over the block wall at or near the respondent's front gate, a suspicion which is gainsaid by the respondent. Be that as it may, the appellants, being concerned E about their own and their children's safety, immediately consulted security experts. They also spoke to the respondent at a stage when the installation of galvanised security spikes along the top of the walls was under consideration. The respondent was amenable to some sort of spikes. But the appellants were advised that spikes would not be adequate, and that they should rather install electrified fencing F along all four boundaries of their property. The appellants accepted and acted on this advice.

Along the boundary walls between Nos 53 and 55 stanchions or posts were affixed by the contractors to the appellants' side of the wall. These stanchions protrude half a metre or more above wall height and G carry nine strands of electrified wire. Attached to the wires are large warning signs. Initially five strands were installed but the appellants, acting on advice, later increased the strands. Electrified wiring of varying heights has been installed on all of the appellants' boundary walls.

The respondent objected to the electrified fencing. Correspondence between the attorneys ensued but failed to resolve the H matter. The respondent thereupon instituted proceedings on notice of motion in which she sought an order that the appellants:

'1.1

remove the electrified fence (including all wires, supporting poles and signs) erected on the Columbia block wall separating erf 55726 and erf 55725 Cape Town, situate at Claremont, and; I

1.2

remove the electrified fence (including all wires, supporting poles and signs) erected on the precast vibracrete wall separating erf 55726 and erf 55725 Cape Town, situate at Claremont;

1.3

restore the Columbia block wall to the condition that the wall was in prior to the erection of the electrified fence; J

Comrie J

1.4

restore the precast vibracrete wall to the condition that the wall was in prior to the erection of the electrified fence; A

1.5

effect the removal of the electrified fence and the restoration of the aforesaid walls at their own cost; and

1.6

effect the removal of the electrified fence and the restoration of the aforesaid walls within a period of two weeks from the date of the order granted by the above honourable Court.' B

The application, which was opposed, was heard by Ngwenya J, who on 28 February 2001 granted an order as prayed with costs. The appellants now appeal against the judgment of Ngwenya J, with leave granted by the Chief Justice. The two contentions which appear to have prevailed at first instance are: C

(a)

that 'putting the electrified fence on the common wall constitutes what Ebden J in Pike v Hamilton, Ross & Co (1855) 2 Searle 191 at 198 referred to as having monopolised the whole of the common wall'; and

(b)

that the electrified fence was dangerous (to the respondent, her gardener and visitors) or 'at the very least is D potentially dangerous'.

The learned Judge found, however, that the appellants had acted 'in good faith with the view of (sic) protecting their own children and their own property'; but that they had in the process infringed the right of their neighbour, the respondent, 'with whom they have common and equal responsibility and rights towards the common E wall'.

Among the contentions debated in the affidavits were alleged contraventions of three regulations. The first was Electrical Machinery Regulation No 11, promulgated in terms of the Occupational Health and Safety Act 85 of 1993. This regulation deals with electrified fencing in residential areas. According to Mr Van Tonder, whose evidence I F shall summarise below, the installation under review complies fully with the requirements of the regulation. His evidence on this point is uncontroverted. No reliance was placed on the regulation by the respondent's counsel, Mr Brown, on appeal. I shall not therefore discuss it further.

The second regulation was a municipal by-law regulating the height of G boundary walls and fences. The maximum height for present purposes is 2,1 metres, which is the height of the Columbia block wall. It was contended for the respondent on the papers that the electrified fencing extended the height of the wall beyond the permissible limit. The evidence of Mr Griffiths, who is the manager of the relevant municipal department, is to the effect that his directorate does not H require plans to be passed for the installation of this kind of security device. Planning permission was accordingly neither sought nor obtained in this instance. Again, the respondent's contention was not pursued on appeal, and I shall say no more about it. I

The third alleged contravention was of a municipal building by-law dealing broadly with nuisance. This contention was not raised in Mr Brown's heads of argument, but it was resurrected by him during oral argument and in further written submissions made by him on behalf of the respondent after the hearing before this Court. I shall come to this alleged contravention in due course. J

Comrie J

There is a dispute on the papers about the safety or otherwise of the A area in which the parties reside. The second appellant, citing chapter and verse, states that the 'area experiences a serious crime problem'. The respondent, while conceding the existence of a general crime problem from which her area is not exempt, states: 'However, I deny that crime is a major problem in our area.' To the extent that there is a dispute of fact in motion proceedings, it must be resolved in favour of the appellants (who were respondents B a quo). Whatever the degree of the admitted problem, it is part of the respondent's case that the appellants over-reacted to the intrusion of 17 December 1999 and did so to the consequent prejudice of the respondent. Neighbourly consultation does not seem to have got very far, but no purpose will be served by attempting to C apportion blame.

Mr Van Tonder is a specialist in the...