The ambit of the discretion of courts in the case of encroachments : Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property

Boggenpoel, Z. T. (2015-01)

CITATION: Boggenpoel, Z. T. 2015. The ambit of the discretion of courts in the case of encroachments: Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property. South African Law Journal, 132(1):5-15.

The original publicatio is available at https://journals.co.za/content/journal/ju_salj

Article

The purpose of this note is to analyse a recent judgment of the South Gauteng High Court in Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust Collective Investment Scheme in Property (unreported GSJ judgment, case no 41882/12, 10 December 2013). Although this is a fairly short judgment it raises important questions regarding the law pertaining to encroachments. As such, it warrants a discussion of the ambit of the courts’ discretion where encroachments are concerned. The facts of the case can be summarised as follows. The applicant and respondent owned neighbouring commercial properties. The applicant owned plot 989, which measures 5989 square metres, while the respondent owned plot 990, which measures roughly 1821 hectares. The applicant had initially owned both properties and sold off plot 990 to the respondent on 31 July 2006. At the time that the transfer took place, both parties were unaware that the existing fence between the two plots was not situated on the cadastral boundary between the properties (para 4). The inaccurate placing of the fence resulted in a triangular piece of land (measuring some 2271 square metres), an incomplete building (approximately 703 square metres in size) and a guard house structure being incorrectly incorporated as part of the applicant’s land, although they actually belonged to the respondent (para 2). When the applicant became aware of the encroachment, it approached the respondent to acquire the encroachment area. The applicant offered to pay an amount of R4 410 721.00 plus a solatium of R100 000 for the encroachment to remain in place in perpetuity. However, the negotiations failed and the parties approached the Gauteng South High Court for a decision on the matter.

Please refer to this item in SUNScholar by using the following persistent URL: http://hdl.handle.net/10019.1/104475
This item appears in the following collections: