Cape Town - A property owner whose boundary wall was found by the Western Cape High Court to have encroached on a neighbour’s property has been given until Tuesday, May 16, to demolish the wall voluntarily, or be forced to pay for its demolition by the affected neighbour.
Judge Phillipa van Zyl issued an order for the demolition of the wall between two adjacent properties in Langa after she found that the wall, built by the developer of the properties before either owner bought theirs, meant the aggrieved party stood to “lose the increase in the value of her property.”
Nomnandi Mbane and Babalwa Gxenya own adjacent properties in Langa’s Gumbi Close, which they both bought in 2005.
The properties are physically separated by a vibracrete wall on the western boundary of Mbane’s property, and just outside the eastern boundary of Gxenya’s property.
Judge Van Zyl said: “It appears that the developer had mistakenly erected the wall on Mbane’s property, in conflict with the approved City plans for the construction as well as the approved Surveyor-General diagram depicting the boundaries of the properties within the sub divisional area.”
Approached to intervene, the City said it would not take any action to correct the encroachment as its policy is to take steps only in respect of encroachments caused by work in progress.
The City advised the affected owner to approach the high court for relief.
Gxenya extended the Vibracrete wall towards the north and south of her property to link with Gumbi Close to the north, and the remainder of a separate erf to the south, in 2018.
Problems began in July 2020, when Mbane commissioned architectural drawings to construct a flatlet on her property’s north-western border. The architects conducting the survey told her that Gxenya’s boundary wall was encroaching on her property. This finding was confirmed by the City and two professional land surveyors, appointed by Mbane and Gxenya respectively.
The encroachment prevented Mbane from constructing her new flatlet, for which she obtained planning approval from the City in in April last year.
Mbane’s advocate Rudolph Du Toit told the court that when numerous attempts to settle the matter amicably proved fruitless they approached the Western Cape High Court for an order declaring that Gxenya’s boundary wall between the erven was encroaching upon her property, and compelling Gxenya to demolish the wall.
Gxenya’s lawyer, L Ngozi, argued that compensation should be granted to Mbane instead of demolition.
When numerous attempts to settle the matter amicably proved fruitless, Mbane approached the Western Cape High Court to declare Gxenya’s boundary wall was encroaching upon her property, and to compel Gxenya to demolish the wall.
Gxenya argued compensation should be granted to Mbane instead of demolition.
But the judge ruled that “the prejudice to be suffered by Mbane should demolition be refused is greater than the prejudice to be suffered by Gxenya if a demolition order is granted. Mbane stands to lose the increase in the value of her property as a result of her inability to effect the already approved renovations”.