23 Sep

CASE LAW UPDATE: Neighbours support neighbours — the duty of lateral support

The duty lateral support is a reciprocal duty owed between neighbouring landowners. What this duty entails is that a landowner cannot do anything at the boundary of their property which may cause damage to the adjoining landowner’s property. This legal principle was recently confirmed by the Supreme Court of Appeal in the case of Petropulos & Another v Dias 2020 (5) SA 65 (SCA), and expanded upon to include a duty to support the buildings on the neighbouring land. Here is a summary of the case:

Ms P and Mr D owned adjoining properties in Camps Bay which were located on a steep sloping mountain. They shared a boundary and all the properties surrounding Ms P’s, except her own, had already been built on. In March 2008 Ms P and a neighbour, a certain Mr V, each undertook excavations on their respective properties near the boundary of Mr D’s property. Ms P was preparing to build a sizeable home, requiring substantial excavation and a retaining wall to offer support, whereas Mr V intended to only build a garage. In May 2008, the wall on Mr D’s property and the ground beneath it collapsed during the construction of the top retaining wall on the property of Ms P.

Subsequently, the underlying ground shifted, causing Mr D’s property to subside further downwards towards the excavation on Ms P’s property—resulting in extensive structural damage to Ms P’s property. More damage was also done to Mr V’s property and amid safety concerns, he was forced to abandon his property. Mr D subsequently instituted a claim for damages against Ms P and Mr V based on a breach of the duty to provide lateral support.

The court considered the following issues in turn:

  1. Whether, as argued by Ms P, a duty of lateral support is owed only to land in its natural state. The court confirmed in this instance that fairness and equity are important considerations in our neighbour law and affirmed prior case law to the effect that the principle of lateral support must be in line with the principle of ubuntu. The court expressed that the right to lateral support is reciprocal between neighbours and that this duty corresponds with the neighbour’s entitlement to such support. Finally, on the above issue, the court stated that the duty of lateral support is not limited to land in its natural state but includes the buildings on such land.
  2. After establishing that the duty of lateral support existed in these circumstances, the court had to decide whether the excavations on Ms P’s property had breached this duty. On the evidence presented by two geo-technical experts, the court found that Mr D had succeeded in establishing that the slope was mobilized because of Ms P’s failure to provide lateral support. Thus, Ms P had indeed breached the duty of lateral support owed to Mr D.
  3. The final question that the court had to decide was one of causation. Were the excavations on Ms P’s property closely enough linked to the harm suffered by Mr D for legal liability to ensue? To this end the court asked whether the slope would have mobilized but for the excavation. The court accepted that there was a direct correlation between the excavation and the slope failure and that causation had been proved. This was the final nail in the coffin for Ms P.

In conclusion, the judgement confirms that every landowner is entitled to the duty of lateral support and that this right is incidental to ownership of property and reciprocal in nature. This means that an owner who excavates, owes his neighbour a duty not to withdraw lateral support. Furthermore, it affirms that where subsidence or other destabilization occurs directly as a result of excavation on a neighbouring property, the owner of that land will be liable for a claim of damages, irrespective of negligence or intention.

Miltons Matsemela Inc

Tarryn Abrahams & Deon Welz