Mr. Smith and Mr. Jones owned adjoining properties on a steeply sloped mountainside erf in

Question

Gordons Bay, Cape Town.
In March 2024, Mr. Smith undertook substantial excavation work on his property to facilitate
the construction of a three-level house and a lift shaft. Given the extent of the excavation, a
retaining wall was built to provide lateral support.
Around the same time, another neighbouring property owner, Mr. Brown, conducted minor
excavation work to build an additional garage. His construction had little to no impact on the
surrounding land’s stability. Later that year, significant ground movement occurred, causing the
entire slope beneath Mr. Jones’ property to shift laterally and downward towards Mr. Smith's
excavation site. As a result, Mr. Jones’ property suffered extensive structural damage. Mr.
Brown’s property was also affected, ultimately leading him to abandon it.
5
Mr. Jones attributed the damage to Mr. Smith’s excavation activities and subsequently
instituted a claim for damages, alleging that he had breached his duty to provide lateral support
to his property.
Against this background answer questions 3 - 6:
Question 3
Identify the type of right that Mr. Smith, Mr. Jones and Mr. Brown have with regard to their
properties. In your answer also briefly explain how Mr. Smith, Mr. Jones and Mr. Brown should
exercise their rights?
Evaluation criteria
(5)
Not
achieved
1. Nature of the right clearly identified and
described correctly.
Partially
achieved
Achieved
0
2. The way the right may be exercised.
N/A
1
Answer substantiated correctly.
1-2
3
0
Question 4
0
1
Identify the relevant legal limitation that exists regarding the right of neighbours to develop their
land. Explain the nature of this legal limitation.
(6)
Evaluation criteria
Not
achieved
1. Correct identification of the legal limitation.
0
Partially
achieved
N/A
Achieved
2. Correct context provided with regard to the
specific legal limitation.
1
2-3
Answer substantiated correctly.
4
0
Question 5
0
1
Mr. Smith argues that he cannot be held liable for the damage on Mr. Jones’ land, because the
legal limitation imposed on him only extends to land in its natural state. With reference to relevant
case law, advise whether he is correct.
(4)
Evaluation criteria
Not
achieved
Partially
achieved
Achieved
6

Answer 1

Question 3
Type of Right:
Mr. Smith, Mr. Jones, and Mr. Brown each own proprietary rights known as "real rights" over their respective properties. These rights grant them particular privileges and entitlements related to the ownership and use of their land.

• Mr. Smith holds the right to use and develop his property, which includes the right to undertake excavation work for the construction of his house and lift shaft.
• Mr. Jones holds a similar right to his property, which includes the right to enjoy and use his land without undue interference or damage from neighboring activities.
• Mr. Brown, likewise, holds real rights to develop and use his property, but he exercised them to a lesser extent by conducting minor excavation work.

Exercise of Rights:
Each property owner should exercise their rights with consideration for the impact on neighboring properties. This includes a duty to avoid unreasonable interference with their neighbor's enjoyment of their property.

• Mr. Smith should ensure that his excavation is done in a manner that does not destabilize the ground or create risks that could affect Mr. Jones’ and Mr. Brown’s properties.
• Mr. Jones should be diligent in monitoring any activities on Mr. Smith’s land that could affect his property and can take legal action if needed to protect his rights.
• Mr. Brown, even though he conducted minor work, should be aware of how additional construction on neighboring properties may impact his own.

Question 4
Legal Limitation:
The relevant legal limitation regarding the right of neighbors to develop their land is the doctrine of "lateral support." This doctrine establishes that landowners have a duty to ensure that their land does not cause harm to neighboring properties by allowing soil or ground movement that may undermine the support their neighbors’ land needs.

Nature of the Limitation:
The legal limitation essentially means that when a landowner engages in activities such as excavation or construction, they must take reasonable precautions to provide lateral support to neighboring properties. If they fail to do so and damage occurs, the affected neighbors have a legal right to claim damages. The liability extends beyond the natural state of the land and includes any alterations made by the landowner that could affect the stability of adjacent properties.

Question 5
Mr. Smith’s Argument:
Mr. Smith's argument that he cannot be held liable for damages to Mr. Jones’ land because the legal limitations only extend to land in its natural state is not entirely correct. In legal precedent, the principles derived from the case of Gilbert v. Coughlin indicate that landowners can be held liable for damages resulting from their excavation activities even if the land is altered from its natural state.

Case law emphasizes that the duty to provide lateral support applies regardless of natural state alterations, as long as the activities conducted are unreasonable or negligent and result in damage. Therefore, if it can be established that Mr. Smith's excavation activities were conducted in such a manner that they caused the soil or structural integrity beneath Mr. Jones' property to be compromised, Mr. Smith may indeed be held liable for damages.