Heinrich N.O and Others v Eagle Canyon Golf Estate (Pty) Limited and Another (131881009) [2010] ZAGPPHC 286 (30 April 2010)
- Citation
- [2010] ZAGPPHC 286
- Status
- Ruling
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- S W Sapire
- Case number
- 131881009
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- S W Sapire
- Case number
- 131881009
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondents, as owners or users of the property from which the nuisance originated, were legally obliged to abate the nuisance caused by misdirected golf balls. The respondents had proposed a solution to the problem, and the order required them to implement this solution. The court held that the applicants were not required to contribute to the costs of abatement. Given the admissions and the legal principles applicable, the court concluded that there was no reasonable prospect that another court would reach a different conclusion, and therefore dismissed the application for leave to appeal.
Court disposition
Application for leave to appeal dismissed.
Orders
- The application for leave to appeal is dismissed.
- The respondents are required to abate the nuisance caused by misdirected golf balls emanating from their property.
- The applicants are not required to contribute to the costs of abatement.
02
Material facts
Parties
Carle Heinrich N.O
Applicant Counsel: Adv A J Troskie (SC)Gesie Maria N.O
Applicant Counsel: Adv A J Troskie (SC)Marius Victor Knoetze N.O
Applicant Counsel: Adv A J Troskie (SC)John Adrian Allan N.O
Applicant Counsel: Adv A J Troskie (SC)Daniel Ben Nel
Applicant Counsel: Adv A J Troskie (SC)Schalk Jacobi Reynecke N.O
Applicant Counsel: Adv A J Troskie (SC)DF Wet Co(Pty) Ltd
Applicant Counsel: Adv A J Troskie (SC)Eagle Canyon Golf Estate (Pty) Limited
Respondent Counsel: Adv RippEagle International Golf Management (Pty) Ltd
Respondent Counsel: Adv Ripp03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Dismissed
04
Questions and positions
Legal issues
- 01
Whether the respondents are obliged to abate a nuisance caused by misdirected golf balls emanating from their property.
- 02
Whether the applicants are required to contribute to the costs of abating the nuisance.
- 03
Whether there is a reasonable prospect of success on appeal against the order requiring abatement of the nuisance.
Party arguments
- Applicant
- The applicants argued that a nuisance was being caused by misdirected golf balls originating from the respondents' property and sought an order compelling the respondents to abate the nuisance. They contended that the respondents, as owners or users of the land, bore the responsibility to eliminate the nuisance and that the applicants should not be required to contribute to the costs of abatement.
- Respondent
- The respondents acknowledged the existence of the problem and stated that they had attempted to find a solution, including making changes to the routing of the golf course. They argued that discussions failed primarily because the applicants were unwilling to contribute more than a nominal amount to the costs of implementing the solution. The respondents maintained that they were prepared to address the issue but did not accept liability for the nuisance.
05
Court’s reasoning
Legal principles
- 01
Common law principle of nuisance
The owner or user of land from which a nuisance emanates is obliged to abate that nuisance.
- 02
Common law principle of nuisance
A party responsible for causing a nuisance cannot demand that the affected party contribute to the costs of abatement.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondents, as owners or users of the property from which the nuisance originated, were legally obliged to abate the nuisance caused by misdirected golf balls. The respondents had proposed a solution to the problem, and the order required them to implement this solution. The court held that the applicants were not required to contribute to the costs of abatement. Given the admissions and the legal principles applicable, the court concluded that there was no reasonable prospect that another court would reach a different conclusion, and therefore dismissed the application for leave to appeal.
Obiter and limits
- The court noted that the discussions between the parties failed not due to unwillingness on the part of the respondents to find a solution, but because of disagreement over cost contributions.
- The court referenced the written judgment supporting the original order, which addressed all points raised in the opposed application.
Court disposition
Application for leave to appeal dismissed.
- The application for leave to appeal is dismissed.
- The respondents are required to abate the nuisance caused by misdirected golf balls emanating from their property.
- The applicants are not required to contribute to the costs of abatement.
Source and reliance status
North Gauteng High Court, Pretoria
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Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Ruling
IN THE NORTH
GAITENG HIGH COURT OF SOUTH AFRICA PRETORIA
Case No: 131881009
DATE: 30 APRIL 2010
SPATH. JOffANNES
CARLE HEINRICH N.O...............................................First Applicant
SPATII. GESIE MARIA N.O. …...................................................................Second Applicant
KNOET7.E, M \RIUS
VICTOR N.O..............................................................Third Applicant
ALLAN. JOHN
ADRIAN N.O.......................................................................Fourth Applicant
NEL, DANIEL BEN..........................................................................................Fifth Applicant
RFYNECKE. SC HA I. K JACOBI'S..............................................................Sixth Applicant
DF. WET CO(P n ) LTD..............................................................................Seventh Applicant
AGAINST
EAGLE CANYON GOLF ESTATE (PTY) LIMITED...............................First Respondent
EAGLE INTERNATIONAL GOLFMANAGEMENT(PTY) LTD.......Second Respondent
CORAM SAPIRE. AJ
REASONS
On the 23"1 of March 2010 I dismissed the application for Leave to Appeal against the order made by me on the I91'' of February 2010 This latter order was supported by a
written judgment to which I refer The judgment covers all the points which were raised at the hearing of the Opposed Application
The order I made is in effect an order requiring the Respondents to abate a nuisance caused by misdirected golf balls emanating from the property owned or used by the Respondents
That such a nuisance existed is clear from the admission by the Applicants who were the Respondents in the original application In paragraph 11 of the Replying Affidavit reference is made to "more appropriate solutions to the 'problem The Respondents without acknowledgement of liability have discussed the solution without am agreement have been reached
The Respondents go on to say that the principal reason why the discussions have failed is not because the Respondents are not prepared to find a solution but because the Applicants do not wish to make a more than nominal contribution to the costs thereof
The deponent went on to say that in attempting to find a workable solution he had on behalf of the Respondents made a number of changes to the routing of the lb"' hole with a view to eliminating the possibility of golf balls finding their way 10 the Applicant's houses
The Affidavit then describes the proposed solution which the Deponent co the Affidavit considered would be effective
In the light of this the order I made requires the Respondents to do no more than put its solution into effect What it cannot demand is that the Applicants contribute to the costa
The principle involved is that the owner or user of land on which or from which a nuisance is caused is obliged to abate that nuisance
1 do not think that another court will come to a conclusion diffeient from that to which I came and that accordingly there is no reasonable prospect on appeal
S W SAPIRE
ACTING JUDGE
NORTH GAUTENG HIGH COURT
Attornevs For Clio Applicants: Goodrickes Attorneys
C/O Messrs Stegmann Inc
Ist FLoor. Celtis
PLAZA
South Block
1085 Schoentiin Street
HATFIELD
Tel: 012-342 6430
pplicant's Counsel: Adv A J Troskie (SC)
Attorney’s for the Respondent: Messrs Ramsay Webber
c/o Adams and Adams Attorneys
Adams & Adams Place
1140 Prospect Street
PRETORIA
Tel: 012-481 1508
Ref: GWW ALB S287D9
Respondent's Counsel: Adv Ripp
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