Building encroachments and compulsory transfer of ownership

[摘要] ENGLISH ABSTRACT: South African courts seem to be adopting a new approach to the problem of buildingencroachments. For pragmatic and policy reasons courts are now inclined toexercise its discretion in favour of leaving building encroachments in place, againstcompensation, despite the common law right to demand removal. It has been widelyaccepted that courts indeed have the discretion to award damages instead ofremoval of the building encroachment. However, the circumstances involved and theconsequences of these orders are uncertain and hence these orders result inconfusion. It is unclear how this discretion is exercised. Furthermore, it is uncertainwhether this discretion includes the power to order transfer of the encroached-uponland to the encroacher. There are doctrinal and constitutional implications that maybe triggered by these court orders that leave building encroachments in place. Thedoctrinal issues centre on what happens when an encroachment is not removed andnothing is said about the rights of the respective parties after the order is made.Possible solutions are investigated to provide a doctrinally sound outcome inencroachment disputes. It is clear that the encroacher is allowed to continueoccupying the portion of property on which the encroachment is erected. It seems asthough a use right is indirectly created when the encroachment remains in place.The constitutional difficulty lies in the fact that the court orders may result ininfringements that conflict with section 25 of the Constitution. The focus isspecifically to determine whether these orders result in the compulsory loss ofproperty or property rights.With reference to Germany, the Netherlands and Australia, a comparativeperspective is provided in order to support the doctrinal and policy arguments. Thecomparative law provides a source of guidelines for what may work effectively andinforms the ultimate suggestion of this project, namely the need for legislation toregulate building encroachments in South Africa. The legislation envisaged wouldhave to prescribe with at least some sort of certainty how and in whichcircumstances the discretion should be exercised. It should also provide clarity withregard to the right that is created when the encroachment is not removed and howthe compensation that is awarded in exchange for removal, should be determined.The unnecessary confusion and uncertainty that result from court orders made in thecontext of building encroachments may be cleared up by legislation.

[发布机构] Stellenbosch University