Allaclas Investments (Pty) Ltd & Another v Milnerton Golf Club & Others

The first appellant, Allaclas Investments (Pty) Ltd, owned a residential property at 32 Tanglewood Crescent, Milnerton, occupied by the second appellant (a director) and his family since March 2003. The property is adjacent to the fairway of the sixth hole of Milnerton Golf Course, which has existed since 1925. The residential estate (Sunset Links) was established in the mid-1990s after rezoning approval. After moving in, the appellants experienced a high incidence of badly aimed golf balls striking their property - 875 golf balls were recorded between December 2003 and March 2006. Despite erecting a 4.7 metre high net in August 2003, golf balls continued to enter the property regularly, significantly affecting the family's ability to use the property normally. Both parties' experts agreed there was a safety issue at the sixth hole requiring a solution. The appellants applied for an interdict to prevent use of the hole until effective safety measures were implemented. The Cape High Court (Traverso DJP) dismissed the application, finding the first respondent had not interfered unreasonably with the appellants' rights.

• Whether the conduct of the first respondent (golf club) in allowing continued use of the sixth hole constituted unreasonable interference with the appellants' property rights
• What standard applies in neighbour law to determine whether interference amounts to an actionable nuisance
• Whether the appellants had to tolerate the ingress of badly hit golf balls as a necessary consequence of living adjacent to a golf course
• What remedy, if any, was appropriate in the circumstances

The appeal was upheld with costs. The High Court's order dismissing the application was set aside and replaced with an order: (i) upholding the application with costs, including the qualifying costs of Mr Bruce Weller; (ii) interdicting the Milnerton Golf Club from permitting use of the sixth hole until it implements a system of barriers near the tee-off position in accordance with the system described in Mr Phillip Jacobs' affidavit (paragraphs 12-14, dated 3 March 2006); and (iii) suspending the operation of the interdict for one month from the date of the order to afford the golf club an opportunity to implement the necessary measures.

The binding principle established is that in neighbour law, while a landowner must tolerate some interference from adjacent land use under the principle of 'give and take, live and let live', this tolerance has limits. Where the use of property (even if not unusual in itself) results in objects (such as golf balls) regularly coming onto a neighbour's property in excessive numbers and in circumstances likely to cause damage to property or persons, this constitutes unreasonable interference with the neighbour's rights of enjoyment and is actionable as a nuisance. The reasonableness test applies both to the use itself and the manner in which it is conducted. A landowner conducting activities that cause objects to cross boundaries onto neighbouring land must take reasonable steps to prevent or reduce such interference to acceptable levels. The fact that the interfering use pre-existed the neighbouring residential development, or that the affected party purchased with knowledge of proximity to the activity, does not absolve the activity operator from the duty to avoid unreasonable interference, particularly where the activity involves design defects creating safety hazards.

The court observed that while it would be reasonable for the appellants to tolerate some ingress of badly hit golf balls (citing De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) at 192A-B), the quantum and regularity experienced in this case clearly exceeded that threshold. The court also noted the technological developments in golf equipment over the preceding decade, which had allowed golfers to hit balls much further and higher, thereby greatly increasing the span of error - this was one of the 'outside influences' affecting the safety concerns. The court assumed for the purposes of argument (without definitively deciding) that it would be relevant that the land had been used as a golf course since 1925 and that the first appellant knew at purchase that the property was adjacent to a golf course and would be susceptible to being hit by golf balls, but found this did not assist the respondent given the undisclosed design defects. The court approved with the approach taken by Sheppard AJA in the New South Wales Court of Appeal in Campbelltown Golf Club Ltd v Winton [1998] NSWSC 257, noting that the passage when considered as a statement of what might reasonably be expected between a golf course owner and its residential neighbours reflects precisely what a South African court would hold in closely analogous factual circumstances.

This case is significant in South African neighbour law and nuisance jurisprudence as it clarifies the application of the 'give and take, live and let live' principle in the context of golf course operations adjacent to residential properties. It establishes that while operating a golf course is not an unusual use of land, and some ingress of golf balls must be tolerated by neighbours, there are limits to what constitutes reasonable tolerance. The case demonstrates that even long-established land uses (the golf course existed since 1925, long before the residential development) must take reasonable steps to avoid excessive interference with neighbouring properties. It emphasizes the principle from Roman-Dutch law that a landowner may not use his property in such a way that objects come from it beyond his boundaries onto his neighbour's land in an unreasonable manner. The judgment provides practical guidance on balancing competing property rights and reinforces that prior knowledge of proximity to a golf course does not eliminate rights to protection from unreasonable interference, particularly where design defects create safety hazards.