The Discretion of Courts in Encroachment Disputes

• Jurisdiction: South Africa
• Author: Zsa-Zsa Temmers Boggenpoel
• Citation: (2012) 23 Stell LR 253
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 253-264

253

THE dISCRETION Of COuRTS IN

ENCROACHMENT dISPuTES

[dISCuSSION Of PhILLIPS V SOUTh AFRICAN

NATIONAL PARKS BOARD (4035/07) [2010] ZAECGHC

27 (22 APRIL 2010)]

Zsa-Zsa Temmers Boggenpoel

BComm LLB LLD

Senior Lecturer, Stellenbosch University*

1 Introduction

In one of the most recent cases dealing with encroachment in South Africa,

the East ern Cape Hig h Court ha d to decide whether it had the discretion to

refuse an interdict for the removal of an e ncroaching fence.1 In Phillips v

South African National Parks Board2 (“Phillips”) a predator-proof fence was

erected on the proper ty of the applicant, instead of on the cadastr al boundary

between t he property of the applicant and that of the respo ndent. The fence

had been e rected on the applicant’s property before he had purchased the

property and it resulted in a substantial portion of the property (the SANParks

portion) being incorpor ated as part of the respondent’s land. The applicant

sought an interdict to compel the resp ondent to remove the fence and relocate

it to the cadastra l boundary or onto the respondent’s property.

Three defences were raised against the application. In the rst in stance, the

respondent c ontended t hat it had purchased the SA NParks portion from the

applicant’s predecessor in title (Van Rooyen) and had subsequ ently acquired

ownership of the SANParks portion. Furthermore, the respondent argued

that the applicant had purchased the proper ty knowing that there had been

an agreement between the respondent and Van Rooyen for the s ale of the

SANParks portion and wa s therefore not a bona de pu rchaser. The second

defence was that the applicant had bee n aware of the agreement bet ween Van

Rooyen and the respondent about the placement of the fence, sp ecically that

the applicant knew that Van Rooyen had conse nted to the e ncroachment. For

that reason it was a rgued that the fence did not result in a n encroachment but

was lawf ully erected. Thirdly, the respondent arg ued that even if the fence

resulted i n an encroachment, fairness dictated that the encroachment should

remain in place. In the counter-application, the respondent claimed that if

the court were to nd against him on the three defences it should g rant a

* I would like to thank André van de r Walt for reading several draft s of this note and for valuable feedback

I would also l ike to thank the stude nts of the South African Research Chair in Prope rty Law and t he

various par ticipants at the C hair’s weekly semina rs Remaining e rrors are my own

1 Phillips v South African Na tional Parks Board (4035/07) [2010] ZAEC GHC 27 (22 Apri l 2010) SAFLII

(acces sed 13-06-2012)

2 (4035/07) [2010] ZAECGHC 27 (22 April 2 010) SAFLII.

(2012) 23 Stell LR 253

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