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Building a house on a slope: SCA expands duty of lateral support between contiguous properties

Fasken
Reading Time 7 minute read
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In the recent decision of the Supreme Court of Appeal ("SCA"), the SCA expanded the duty of lateral support, which should be welcome news for any landowner building a house on a slope.

The duty of lateral support essentially means that adjoining landowners owe each other a reciprocal duty of lateral support. Lateral support refers to the natural right to have land supported from subsidence by neighbouring lands.

Until recently the prevailing legal position in our law was that the duty of lateral support only applies where the land is still in its natural state. This means that the duty of lateral support would fall away once the land had been developed by for example construction of a building.

Following the decision of the SCA, this legal position has now been amended and it was confirmed to include buildings constructed on the properties. In this bulletin we will briefly discuss the facts and findings of the SCA decision in Petropulos & Another v Dias (Case no 1055/2018) [2020] ZASCA 53.

 

Discussion of Petropulos & Another v Dias

This case was an appeal from a decision handed down by the Western Cape Division of the High Court, Cape Town. This case involved the first appellant, Ms Petropulos and the respondent, Mr Dias as well as Mr Venter. The parties owned adjoining properties in Camps Bay, Cape Town.

In March 2008 the first appellant and Mr Venter each undertook excavations on their respective properties. The excavation undertaken on the property of the first appellant was substantially more extensive than the excavations done on Mr Venter’s property. The excavations in both instances were performed near the boundary to the respondent’s property.

Following the excavation activities, the respondent’s property started showing signs of structural damage which gradually progressed and eventually led to the property subsiding. The respondent averred the excavations performed on the properties of the first appellant and Mr Venter were the cause of the damage caused to his property and accordingly instituted an action for damages against both parties before the High Court in Cape Town.

The basis of the respondent’s claim was strict liability for breach of the duty to provide lateral support. Initially both the first appellant and Mr Venter defended the action. During the course of the trial however, Mr Venter reached an agreement with the respondent.

The High Court concluded that the duty of lateral support is owed to land as well as buildings constructed on the land, except where such land has been “unreasonably loaded so as to place a disproportionate or unreasonable burden on the neighbouring land.” The court found that both the first appellant and Mr Venter owed the respondent a duty to provide lateral support to his property and both had breached this duty with regards to the excavations which were performed in their respective properties.

The first appellant then appealed to the SCA. The project engineer that had completed the works on the first appellant’s property was joined to the matter and is cited as the second appellant.

Before the SCA the following was contended on behalf of the first appellant: “

  1. that the first appellant did not owe a duty to provide lateral support to the respondent’s property, inasmuch as the latter’s property was no longer in its natural state;
  2. that the excavations on the first appellant’s property did not breach the duty to provide lateral support;
  3. that the excavation on the first appellant’s property was not linked sufficiently closely to the harm suffered by the respondent for legal liability to ensue (causation); and
  4. that on the facts of this case, it is inconceivable that the first appellant should be held liable to the respond in the absence of a finding of fault.”

For the purposes of this bulletin we will only be discussing the first contention raised by the first appellant.

Is the duty of support owed only in respect of land in its natural state?

The SCA examined a number of authorities including those considered by the court a quo in order to address the averment by the first appellant that the legal position in our law is the same as English law in that lateral support only extends to land in its natural state and does not extend to buildings on the land.

The first of these was East London Municipality v South African Railways and Harbours 1951 (4) SA 466 (E). In this case it was held that our law of lateral support is the same as English law in which the right of lateral support is owed only to land and does not extend to the building on it.

The SCA also considered Douglas Colliery Ltd v Bothma and Another 1947 (3) SA 602 (T) where it was held that that there is no natural right of support for that which is artificially constructed on land. The court noted that both these cases relied heavily on English law and as a result both reached the conclusion that lateral support was owed only to land and did not extend to the buildings on it. 

The SCA directed itself to the development of our law of lateral support. In this regard the court referenced London and SA Exploration Co v Rouliot (1890-1891) 8 SC 74 where the principle that neighbouring land owners owed each other a reciprocal duty of lateral support which was a natural right, incidental to the ownership of the property was set out. The court noted that different divergent views exist with regards to how the principle of lateral support is applied in situations where the land is no longer in its natural state. 

Another decision considered by the SCA is Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd [2006] ZASCA 118; 2007 (2) SA 363 (SCA); [2007] 2 All SA 567 (SCA) where the court cautioned against the ‘incorporation of the English doctrine of lateral and subjacent support, with all its ramifications, into our law’. The court in the present case held that one of the ramifications cautioned against by Brand JA in Anglo Operations was the slavish adoption of the principle of English law which restricts lateral support only to land in its natural state excluding buildings on it.

The SCA favoured the view that in relation to lateral support, English law was rigid and resulted in anomalies. It was held that in our neighbour law, fairness and equity are important considerations. The court held that in our current constitutional dispensation, it is necessary for the principle of lateral support to find expression in the constitutional value of Ubuntu in which the principles of humaneness, social justice and fairness are imbedded.

The SCA also referenced a judgment in a Singapore court of appeal where the restricted English principle on lateral support was jettisoned and one of the reasons provided was that the right of support must have its roots in ‘the principles of reciprocity and mutual respect for each other’s property’.

The SCA then found that the legal position formulated in Douglas Colliery and East London Municipality did not correctly reflect the position in our law and the courts in these cases erred. The court accordingly found that the court a quo was correct in holding that the duty of lateral support was not limited to land in its natural state, but extends to buildings on the land.

The SCA, however, rejected the exception introduced by the court a quo to the principle of lateral support. The court a quo had concluded that the duty of lateral support extends not only to land but also to buildings, except where such land has been ‘unreasonably loaded so as to place a disproportionate or unreasonable burden on the neighbouring land’. The court found that the exception was marked with practical difficulties in that land owners would have to be faced with the burden of proving that they had not unreasonably loaded their land. It was also held that the exception unwittingly introduces the very same English principles which the court a quo had declined to follow.

With regards to the right of lateral support owed between contiguous properties, the SCA concluded as follows: “

  1. it is a natural right incidental to the ownership of the property and not servitudal in nature, as enunciated in Rouliot;
  2. it is a principle of neighbour law as explained in Anglo Operations, which rests on justice and fairness; and
  3. it is owed to land not only in its natural state, but extends to buildings upon it.

The court held that while English law of lateral support is influential, it had not been slavishly adopted into our law.

Conclusion

The SCA decision has brought about a welcomed development of our law of lateral support which is in line with our constitutional values.

In most cases in practice land has been developed and is thus no longer in its natural state, and this is where a landowner would likely suffer more damage as a result of land subsiding due to excavations on adjoining land.  It would therefore be untenable that land owners in such cases would not be able to enjoy the protection of strict liability attached to the duty of lateral support.

Going forward, before making excavations onto their property, landowners will have to consider the extent of such excavations and whether or not they would have any adverse effect on the rights of their neighbours to lateral support. This is line with the principles of fairness and equity which form part of our neighbour law.

This bulletin was prepared by partner Johan Coetzee and candidate attorney Thulisile Cingo.

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