Court ends high-voltage neighbours’ feud

By Estelle Ellis
© Independent Online 2004

It was a row over the fence between neighbours, but it became so bitter that after three years theCape High Court had to step in to resolve it.

It was started by an electric fence, but issues at stake included crime in Claremont, the aesthetics of house design, property values, good neighbourliness and the possible danger posed to gardeners.

On one side of the fence in upmarket Palmyra Road, Claremont, were Cornelis and Yvette Dorland, who feared for their safety after a burglary. They put up an electric security fence on all four boundary walls.

On the other side was Anna Aletta Smits, whose architect had made the common boundary wall an integral part of the design of her house. She felt the electric fence damaged her home’s aesthetic appeal.

The Cape High Court had the final say on Thursday, and a full bench of judges decided in favour of the Dorlands.

Smits, a keen gardener, has since moved house.

In the early 1980s, her property was re-modelled by architect Roelof Uytenbogaardt. The 32m wall separating her property from the Dorlands’ was made an integral part of the design, joining the interior and exterior of the house in a particular way.

Growing near this wall on Smits’s side were trees, plants, creepers and a grapevine, which were tended by Smits and her gardener.

Good neighbourly relations became strained in December 1999, when an intruder got into the Dorlands’ kitchen. They suspected he had first gone into Smits’ garden and then climbed over the joint wall near Smits’s gate.

Concerned about their family’s safety, the Dorlands immediately consulted security experts who advised the electric fence. Smits got an interdict ordering the Dorlands to take down the fence last February. The Dorlands appealed. Smits opposed the appeal.

Judge Comrie said the wall in question was entirely on the Dorlands’ property. “It was and is their wall to monopolise.”

Judge Comrie said that there were no South African court decisions that the aesthetics of a property were relevant in the law relating to neighbours and nuisance. “I consider this to be an area into which as a matter of judicial policy the courts should not venture.”

He found that the Dorlands had not created a nuisance by erecting the electric fence.

Judges Willem Louw and Belinda van Heerden concurred.

Published on the Web by IOL on 2002-04-26 09:45:05

© Independent Online 2004. All rights reserved. IOL publishes this article in good faith but is not liable for any loss or damage caused by reliance on the information it contains.