Category Archives: Commercial Law

Me, my neighbour and that tree

article-1-SeptemberThe house was just perfect – the right neighbourhood, well established garden, beautiful trees waving graciously in the summer breeze with just the right amount of shade next to your swimming pool and veranda.  And as the trees are those of your neighbour, no problem with pruning or the leaves, said the estate agent.  You fell in love and your family loves the new home.

Autumn arrives. The leaves have changed colour and you have actually taken the competition-winning photographs right from your doorstep!

When the leaves start falling, the swimming pool pump has required repairs twice due to blockage and your Saturday golf has been replaced with hauling loads of leaves to the garden refuse.  During the first thunder storm of the new season the wind rips a branch off and whipped the branch through your electric fence, taking all off the wall.

The acorns made dents into your brand new pride and joy whilst the ripe fruit falling down on your lawn has started to rot whilst you were at the beach house.

You can’t wait for them to leave this weekend to jump over the fence with your chainsaw…

Problems with trees from adjacent gardens are as old as townships itself and since man moved into closer proximity to each other.

To merely jump over the fence and prune, or worse, cut down the tree to your satisfaction will not only constitute trespassing but also malicious damage to property.

Many disgruntled neighbour has approached the courts demanding relief.  The courts have carefully considered the basis on which you can approach the court, now generally considered as “nuisance”.

You will have to prove to the court that the inconvenience caused to you by your neighbour’s tree is more than you just being fanciful, elegant or having dainty modes and habits of living.  The inconvenience caused must materially interfere with your ordinary comfort, physically and your human existence.

The standard that the court will consider this infringing of your health, well-being or comfort in occupation of your property, will be that of a normal person of sound and liberal tastes and habits.  The test of reasonableness shall be applied taking into account general norms acceptable to a particular society. Actual damage to your property is not a requirement.

The court will however also consider the nuisance, even if the tree(s) are actually causing damage, balancing this with your responsibility to tolerate the natural consequence of the ordinary use of the land.

In other words, the court will consider the dispute and the decision will involve balancing the competing interests of you and your neighbour.

The judgment of De Vos J in Vogel v Crewe and another 2003 (4) SA 50 (T) raised a further very important aspect.  The environment.

In a world where trees and nature are considered all the more important for our well-being and that of the earth, all the more careful consideration should be taken before a demand for the cutting down of a tree is granted.

De Vos J noted that trees form an essential part of our human environment, not only giving us aesthetic pleasure but also being functional in providing shade, food and oxygen.  And, like many other living things, trees require, in return for the pleasure provided, a certain amount of effort and tolerance.

With our increasing awareness of the importance of protecting our environment, we need to become more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours and consequently the neighbours’ trees.

Before you sell your property and move to another neighbourhood all together, consider a friendly discussion with your neighbour and his pruning company of choice, from YOUR side of the fence.

Explain to your neighbour which branches of which trees are problematic or show him the cause for your concern.  And be willing to reach an agreement somewhere in the middle, taking the type of tree, its form of growth and the balance of the tree into consideration.  It will not suffice to demand the removal of a large branch unbalancing the tree which will then fall over during the next storm taking down your wall!

If all your efforts, including friendly letters and e-mailed correspondence fall on deaf ears, you are allowed to prune all branches as from the point that it protrude over the wall into your property.  You are not allowed to lean over the wall to cut those branches at the neighbours’ side of the wall.  You will also be responsible for removing the branches from your property after you have pruned the tree in this manner.

So take your cup of tea, and have a good, impartial look at that “offending” tree.  See the insects, the birds fluttering around and the odd lizard.  Tranquil, is it not?

Must that tree go, or can you tolerate its existence, maybe with a little pruning?  Cutting it down, you might just open a view into your neighbours’ garden (or house) which is even less pleasing!

Consider the environment. Tolerate that tree. In the summer you will relish the shade.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Director disputes – A new remedy to the rescue

Directors behaving badly

You are a director of a company and discover that your fellow director is acting against the company’s best interests. You want the company to sue him/her to recover the company’s losses, but naturally your fellow director isn’t going to agree to that – what can you do about it?

Directors, shareholders and employees need to know of an important new remedy introduced by the new Companies Act. In a nutshell, it allows for directors and other interested parties to litigate in the name of the company for any such claims, without a board resolution, after giving the company notice and an opportunity to investigate your allegations.

The court will only allow you to sue in the company’s name if satisfied that:

1. You are acting in good faith, and

2. There is a “serious question of material consequence to the company” at stake, and

3. The proposed litigation is in the best interests of the company.

The feuding brothers – Court to the rescue

In a recent High Court case, the only two directors of a company were brothers involved in a long-term personal feud, and one director believed that the other had grossly abused his credit card facility (to the tune of over R1.1m).

The other director denied this, claiming that the debits were rightfully incurred by him as a director, and that his brother was acting not in good faith but rather with an “ulterior motive occasioned by the animosity which exists between them”.

On the facts the Court disagreed, finding that the applicant director was indeed acting in good faith and in the interests of the company, and therefore authorising him to institute action against his brother in the company’s name.

Note: If you are faced with a similar situation, take proper advice before acting – the procedures prescribed in the Act need to be followed closely.

© DotNews, 2005-2012. This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Buying Property In A Shelf Company? Pitfalls And Precautions

Shelf (i.e. pre-registered) companies can be very useful vehicles for the acquisition of assets, particularly property.

Beware the pitfalls – who can sign and who can’t?

Just make sure if you buy a shelf company that you don’t sign any contracts for your new company before you are actually appointed as director – until then, only the currently-appointed director has the legal authority to bind the company. Continue reading

Die Rakmaatskappy By Die Aankoop Van Eiendom – Slaggate En Voorsorg

‘n Rakmaatskappy is ‘n generiese voorafgeregistreerde maatskappy en die gebruik daarvan kan ‘n gerieflike manier wees om bates, veral vaste eiendom, aan te koop.

Pasop vir die slaggate  – wie mag teken en wie mag nie?

Wanneer jy ‘n rakmaatskappy koop moet jy seker maak dat jy geen kontrakte namens die nuwe maatskappy teken, alvorens jy amptelik en formeel as ‘n nuwe direkteur aangestel en geregistreer is. Totdat hierdie formaliteite afgehandel is, is dit slegs die bestaande direkteur wat regtens bevoeg en gemagtig is om die maatskappy te bind. Continue reading