Encroachment or accession? The importance of the extent of encroachment in light of South African constitutional principles

Pope, Anne

Encroachment or accession? The importance of the extent of encroachment in light of South African constitutional principles

Journal Article

2007

Journal Title

South African Law Journal

Link to Journal

http://reference.sabinet.co.za/sa_epublication/ju_salj

Publisher

Juta Law

Publisher

University of Cape Town

Department

Department of Private Law

Faculty

Faculty of Law

Abstract

South African courts seemingly regard every instance of building partly on a neighbour's land as an encroachment. Strangely, the principles of accession, usually dominant in determining the ownership of buildings, are never discussed in this context. The decision in Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C) provides a clear example of this mode of reasoning and its severe consequences for the encroached-upon neighbour. This approach seems to focus only on the interests of the builder and does not give due consideration to the rights of the neighbour - and arguably results in an arbitrary deprivation of the neighbour's property in terms of s 25(1) of the Constitution, particularly where the encroachment is very extensive. This article contends that, in order to comply with the constitutional obligation to develop the common law in light of the values enshrined in the Bill of Rights, the courts must adopt a nuanced approach to situations involving building on another's land, so as to give proper attention to the rights of both parties and thus to prevent the possibility of unfair deprivation. In particular, it is argued that the extent of encroachment must guide the court in its decision whether to regard the interference with possession as an encroachment rather than an instance of accession, and in determining the appropriate remedy.

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