Allaclas Investments (Pty) Ltd

31 August 2006

Allaclas Investments (Pty) Ltd & Another v Milnerton Golf Club & Intervening Parties - claim based upon the common law of private nuisance.

The applicants in this matter were all owners/occupiers of properties bordering on the Milnerton Golf Course. They were fed up because their properties were being struck by golf balls being hit by players playing the sixth hole, despite the second applicant having put up a 4.7 metre-high net around his property. In dismissing the application, Traverso restates the common law of private nuisance as stressed by Steyn CJ in Regal v. African Superslate (Pty) Ltd 1963(1) SA 102 (A), to wit, that the difference between the common law systems of Roman Dutch and English law should not be overlooked, and, as commented on by Professor J R L Milton, be drawn upon, shaped and interpreted in the judgements of the South African courts.

Disputes between neighbours invariably involve, amongst other things, the question whether there has been an abuse of a right and whether, according to the facts, the neighbour whose conduct has been complained of has in fact, with reference to considerations of reasonableness and fairness, exceeded his powers of ownership. It is therefore a question of balancing the right of the owner of a property to do with his property as he likes and the right of the neighbour not to be interfered with.

Objectively and with reference to all the facts and circumstances, had the golf course actually acted wrongfully?In deciding the question a number of factors were considered, such as:

  • The applicants live on the golf course so should accept some balls will hit their homes.
  • What constitutes an excessive number of golf balls?
  • The Milnerton Golf Club has taken precautionary measures - planted trees, the sixth hole is played as a par four except on Wednesdays and Saturdays.
In assessing the reasonableness of the respondent's actions, the following facts were taken into consideration (at paragraph 17):
"17.1 The fact that the respondent has conducted a golf course in Milnerton since 1925.

17.2 The applicants' complaint is not that the respondent has recently commenced using the property differently to the way in which it has been used for the past 80 years, i.e. for the playing of golf.

17.3 The applicants do not suggest that any unnatural or inappropriate activity is being carried outon the golf course. They accept that golf is being played on a locality designed for that purpose.

17.4 A very important factor is that, at the time when the property was purchased, and in fact at all relevant times hereto, the applicants knew and understood that golf would be played on the property immediately adjacent to their properties and that they would be exposed to the consequences inherent in being in such a position.

17.5 What is also clear is that the respondent was prepared to go to great lengths to try and alleviate the problem of which the applicants were complaining of."

Relying on various cases from foreign jurisdictions to support the contention that the number of golf balls entering the second applicant's property was unreasonable was dismissed as being unhelpful as the test for reasonableness must be determined with reference to the facts of the case.
Applicants failed to:
"show that the respondent's conduct is unreasonable in the sense that the number of golf balls exceeds what could reasonably have been expected by them to strike their property in the circumstances of this case. Nor have they shown that the damage caused to their property exceeds what can reasonably be expected in the normal course of a property situated on a golf course." At [20]. Second, the applicants also appeared to take relatively inexpensive measures to protect themselves - they did not put up a net, for instance, because it would ruin their view of Table Mountain. The respondent on the other hand did show a willingness to take reasonable measures to minimise the risk of damage by golf balls to the applicants' property.

In short:
"[24] Living next to a golf course brings certain benefits in relation to the environment in which one lives. However, it also entails a real danger that the properties so situated will be susceptible to being hit by golf balls. That is a risk that any reasonable person will accept.

[25] In view of all the factors set out above, I conclude that the respondent has not interfered unreasonably with the rights of the applicants."

Full judgment

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