Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust (20165/2014) [2015] ZASCA 103; 2015 (5) SA 290 (SCA); [2015] 3 All SA 523 (SCA) (30 June 2015)

Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust (20165/2014) [2015] ZASCA 103; 2015 (5) SA 290 (SCA); [2015] 3 All SA 523 (SCA) (30 June 2015)

The Supreme Court of Appeal held that an encroacher does not have an independent cause of action to compel transfer of another's land in the absence of a removal order sought by the owner. The court analysed the authorities relied upon by the lower court and found that none supported the proposition that an encroacher may offensively claim transfer of property. The default remedy for encroachment is removal, and compensation or transfer may only be ordered where the owner acquiesces or seeks such relief. The court further held that no court has ever ordered transfer of land beyond the area of actual encroachment, and such an order is not competent. The court also found that the structure...

Citation
[2015] ZASCA 103
Parties
Appellant: Fedgroup Participation Bond Managers (Pty) Ltd; Respondent: Trustee of the Capital Property Trust
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 June 2015
Case Number
20165/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division, Johannesburg
Outcome
Appeal dismissed with costs; cross-appeal dismissed with no order as to costs.
Judges
Navsa, Mhlantla, Pillay, Willis, Saldulker
Legal Topics
Encroachment, Transfer of Land, Specific Performance, Prescription Act, Building Regulations, Constitutional Property Rights
Land and Property Civil Procedure Encroachment Transfer of Land Specific Performance Prescription Act Building Regulations Constitutional Property Rights

Case Brief

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Parties

Fedgroup Participation Bond Managers (Pty) Ltd

Appellant

Trustee of the Capital Property Trust

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division, Johannesburg

Legal Issues

  1. 1 Whether an encroacher may bring an independent cause of action to compel transfer of encroached-upon land in the absence of a removal order by the owner.
  2. 2 Whether a court may order transfer of land beyond the area of actual encroachment.
  3. 3 Whether prescription applies to the encroacher's claim for transfer.

Ratio Decidendi

The Supreme Court of Appeal held that an encroacher does not have an independent cause of action to compel transfer of another's land in the absence of a removal order sought by the owner. The court analysed the authorities relied upon by the lower court and found that none supported the proposition that an encroacher may offensively claim transfer of property. The default remedy for encroachment is removal, and compensation or transfer may only be ordered where the owner acquiesces or seeks such relief. The court further held that no court has ever ordered transfer of land beyond the area of actual encroachment, and such an order is not competent. The court also found that the structure...

Court Disposition

Appeal dismissed with costs; cross-appeal dismissed with no order as to costs.

Orders

  • The application to amend the notice of motion is dismissed with costs including the costs of two counsel.
  • The appeal is dismissed with costs including the costs of two counsel.