By Dean Brainin
With over 500 golf
courses across South Africa, living on or within close range to a golf course
has become relatively normal, with new golf courses and developments showing up
each year.
The difficulty with
living on or near a golf course, one has to tolerate the occasional breaking of
a window. However, when does this become an unreasonable nuisance?
In South Africa, the law
of neighbours governs golf ball incidents resulting in property damage. Our
courts find no difference if a person lives on or near a golf
course.
South Africa's neighbour
law provides that neighbours should tolerate a reasonable level of interference/nuisance
resulting from neighbouring land. However, when land use affects neighbours
that exceeds that moderate level, it becomes unlawful and thus an actionable
nuisance.
When it comes to golf
balls being a nuisance, the main principles to demonstrate are that the
nuisance is excessive and occurs continuously or repeatedly. Also, a person's
ability to use their property is typically significantly impacted.
In the landmark case
of Allaclas
Investments (Pty) Ltd & Another v Milnerton Golf Club & Others [2007]
167 SCA, Allaclas Investments (that owned property facing the
golf course) brought an application against the Milnerton Golf Club. It sought
an order that the Club is interdicted from allowing the sixth hole on the golf
course to be used for play until the golf course took the necessary steps to
reduce the number of stray balls striking the Applicant's property which
property lay adjacent to the fairway of the sixth hole of the golf course. The
number of stray balls hitting the Applicant's property posed a danger to the
Second Applicant occupying the adjacent property.
The High Court decided
that a landowner of a property adjoining a golf course had to expect and
tolerate a certain level of intrusion from stray golf balls. The Applicant had
to undertake various steps to alleviate and reduce the problem.
On appeal, the Supreme
Court of Appeal held that the high incidence of stray balls hit directly into
the residential property of the Applicant (875 golf balls between December 2003
and March 2006) posed a severe danger to the Applicant and his family. It thus
constituted a nuisance, even considering the Applicant's choice to live on a
golf estate.
The court further
accepted that the use of the land as a golf course did not constitute an
unusual or unreasonable use and that it would be reasonable and expected for
those residing on the golf course to tolerate some ingress of badly hit golf
balls. However, what the Applicant's had to endure (875 golf balls between
December 2003 and March 2006) went considerably further than what a neighbour
is obliged to tolerate.
In this regard, a person
must never forget that when approaching a court for an interdict to prevent or
terminate a nuisance stemming from the neighbouring property, a party must show
that the use of the adjoining land or the situation that causes the nuisance is
excessive and unlawful. The neighbour must also demonstrate that the nuisance
occurs continuously or repeatedly. A single occurrence of such a nuisance would
be insufficient to obtain an interdict or any similar relief. Moreover, the
said nuisance must not be tolerable to the "reasonable man".
