In the Supreme Court of Appeal Petropulos v Dias (1055/2018 (2020) ZASCA 53) the facts were briefly the following:
Ms. Petropulos and Mr. Dias (amongst others) owned adjoining properties in Camps Bay on a steep mountain slope. During March 2008 Petropulos undertook excavations on her property, near the boundary with the Dias’ property. The excavation was in preparation for the building of a house. The excavation involved substantial excavations to produce three tiers and for a lift shaft. To provide lateral support, the three levels were each secured by a retaining wall. From May 2008, problems became evident on Dias’ property. A dip appeared in the garden; furrows appeared in the garden and the ground under it collapsed. Between July and August 2008, there was a major movement in the underlying ground. The entire slope on which Dias’ property was situated, subsided. Dias’ property moved laterally and downwards towards the excavation on the Petropulos’ property, resulting in extensive structural damage to the property. Cracks appeared in the walls, tiles, floor slabs, the boundary wall as well as the driveway etc. etc.
The matter ended up in Court and went up to the Supreme Court of Appeal.
The critical questions to be answered were:(i) did Petropulos owe Dias a duty to provide lateral support (ii)did the excavations breach that duty which resulted in the damages of Dias and (iii) was Petropulos legally liable for such damages.
Before this Case the South African Courts generally followed the English law principle whereby the right to support was confined to the land only in its natural state!
I must pause a moment on the rather strange position set out in English law. The right to support only protects the neighbour’s land, not the buildings thereon. This is the position for the first 20 years after construction. After 20 years the buildings by way of a “servitude” grows into this right of protection and is also protected.
In this case Judge Makgoka makes various comments on the English law position and then quotes the Singapore Court of Appeal; which I requote here:
“English law on the subject of the right of support … contains a number of curious propositions. If my neighbour’s land is in its natural state, I may not remove the soil on my land without providing alternative support for his land; but if my neighbour expends money and effort in building a bungalow on his land, then I may excavate with impunity, even though his bungalow may crumble to the ground. Yet, my liberty to ignore the support required by his house is not perpetual, but lasts only for 20 years, at which time any indolence in pursuing my right to remove my soil is transformed into a positive right of support in respect of his dwelling. . . .
Perhaps only lawyers can understand and appreciate how a simple issue such as this, through the process of law, comes to be governed by a mass of convoluted and irreconcilable rules; surely only the bravest among them would attempt to explain it to the average citizen. For our part, we fail to see any legal principle capable of supporting the distinctions drawn by the cases. Further, we are of the view that the proposition that a landowner may excavate his land with impunity, sending his neighbour`s building and everything in it crashing to the ground, is a proposition inimical to a society which respects each citizen`s property rights, and we cannot assent to it”
The judge then makes it clear that both Roman and Roman-Dutch law recognised a right of lateral support for the land and the buildings thereon
He then makes the very important statement that in neighbour law, fairness and equity are important considerations and that our constitutional value of Ubuntu strongly promotes the ideas of humaneness, social justice and fairness.
The Court thus decided that the right of lateral support includes the land and the buildings thereon! It is natural right connected to the right of ownership and is not a servitude.
Must I then still support it?
The lower Court in this case imposed a proviso to the abovementioned rule stating that buildings are included in the right of support unless the neighbour’s structures “unreasonably loaded or burdened the land”. The Appeal Court rejected this approach and stated that this is not part of our Law.
Although this proviso does not apply the Court confirmed that the right to lateral support is not a limitless right. It is confined by the rules of causation. Did the actions cause the damages(factually) and is it reasonable(legally) to hold the person liable for the damages?
The factual question is answered with the well-known “but for” test. But for that excavations of the neighbour, would the damages have occurred?
The legal causation is a wider question where matters like fairness, reasonableness,” harm too remote”, public policy etc are drawn into consideration. These “tools” are thus the limits placed on the liability! Not a simple rule of overloading the land or the unlawfulness of the structure!
The liability foreseen here is NOT subject to wilful or negligent wrong doing. It is so called “strict liability”. The reason why our Law allows strict liability lies therein that certain actions in life are inherently so dangerous (increased risk for neighbours and fellow citizens) that the action taker must be held liable whether he was negligent or not.
The Court concluded that Petropulos owed Dias a duty to support the land and buildings. The Court also found that the factual- and legal causation(reasonableness) were at hand and that Petropulos was thus liable for damages.
The general position whereby only undeveloped land would be protected and which was previously mostly followed from the English Law was correctly rejected by the judge. It is mind boggling to think that such a rule could stand the test of time where most of the world is living in overcrowded cities filled with close standing buildings!
The Romans realized 2000 years back that the numerous buildings in their ancient cities need to be protected from foolish excavations…not only the land.
Roman Law followed a casuistic system. Casuistic means that you consider the facts of that particular case and decide on that case. You are not trying to create a general rule with each court case. I think the judge here made an excellent review of the historical common law as read with the spirit of Constitutional Ubuntu and fairness ,but I cannot escape the thought that the very wide set of rules applied when viewing legal causation (public policy, reasonableness etc etc) are actually a justification of a casuistic approach ;meaning basically asking what is fair in this case at hand?
In my career as attorney I have witnessed many unfair cases and life situations. Where justice was denied based on a strict rule-based approach, even though the foolishness thereof was blatantly clear. On the other hand, I have seen justice being done, where wise men and women have used their discretion and have taken brave decisions based on well thought through reasons and a basic willingness to hear and consider the views and facts of that matter!
I am thus one of the few or only lawyers who supports a tendency towards a casuistic approach …..executed by wise men and women based on simple, fair and general rules. I thus thoroughly agree with the judge even though my reasoning may be based on a law- and life principle which is totally outdated!
Clearly land owners must use common sense and take more than reasonable steps to support their neighbours land and buildings. You cannot simply close your eyes. In extreme mountain slope positions and tightly fitting city buildings this duty of care increases substantially!
Engineers reports, geological examinations and a good old informative open conversation with your neighbour would be wise before the bulldozers enter the site!
As the possible liability is “strict” (no negligence needed) the number of precautions taken cannot be limited here! A few suggestions are: to make a decent written record of all the precautions taken, to obtain an independent photo report of neighbour’s property before construction and to take timely interventions should something go wrong!
Hopefully proper time will be taken in the future to consider the position of our neighbours!
Jacques van der Merwe
Jacques van der Merwe Maja Inc.
2 September 2020
*The views expressed here are my personal views on this theme and are not to be used or copied in any manner. It may not be interpreted as anything else ,as my personal opinion. It is not legal advice in any case. Should you wish to obtain specific advice on any matter this should be done by taking up personal contact with myself or any one of our attorneys.