New Invest 197 (Pty) Limited and Another v Moss

The first applicant was the registered owner of Farm 1337 in the District of East London (132.8998 hectares). The second applicant was the sole director of the first applicant and had resided on the farm since 2012. The respondent was the registered owner of the neighbouring Tower Hill Farm No 1338 (58 hectares) and operated an earth-moving business from that property, having taken up residence around 2020/2022. A dispute arose when the second applicant discovered that the respondent had: (1) restricted her access to her farm by constructing an electric gate across a via necessitas (right of way) that had historically existed between the two farms; (2) constructed a dam structure that straddled the boundary between the two farms, with the dam wall built on the applicants' property (Farm 1337); (3) removed the boundary fence and vegetation during dam construction; and (4) dug a trench across the tarred Old Transkei Road used to access Farm 1337. The second applicant discovered the dam on 29 May 2023 via Google Earth imagery and confirmed it by physical inspection with her sister on 30 May 2023. The respondent conceded that he raised the existing dam wall by approximately 3 meters and that the dam wall was technically on the applicants' property, though he claimed the dam existed when he purchased his farm.

• Whether the respondent unlawfully interfered with the second applicant's access rights to her property
• Whether the respondent unlawfully constructed a dam and associated earthworks on the applicants' property without permission
• Whether the respondent unlawfully damaged the boundary fence between the two properties
• Whether the respondent was obligated to restore the status quo ante regarding the dam, environmental damage, vegetation, boundary fence, and road damage
• What relief was appropriate including the scope of rehabilitation and restoration required
• Whether costs should be awarded on an attorney-client scale

The court ordered: (1) the respondent to restore the status quo ante by allowing unfettered access and providing a remote control for the gate; (2) an interdict restraining the respondent from obstructing access, entering Farm 1337 without permission, or conducting unauthorized earthworks or vegetation removal; (3) the respondent to appoint environmental experts within 30 days to provide a report and recommendations regarding decommissioning the dam and rehabilitating environmental damage; (4) the respondent to engage appropriate contractors within 30 days of receiving the report to remove unauthorized earthworks, restore natural ground contours, and replant with indigenous vegetation, all at the respondent's costs; (5) the respondent to restore the boundary fence at his cost; (6) the respondent to repair and resurface the Old Transkei Road with tarmac within 60 days; (7) an interdict restraining the respondent from communicating with the second applicant except through attorneys; and (8) the respondent to pay costs on an attorney-client scale in accordance with Scale B.

A property owner who conducts earthworks, dam construction, or other alterations on a neighbouring property without permission acts wrongfully and unlawfully, and is obligated to restore the status quo ante. Where such unauthorized construction causes environmental damage including vegetation removal and alteration of natural ground contours, the wrongdoer must rehabilitate the affected area under supervision of environmental experts, at the wrongdoer's cost. This includes removing unauthorized structures, restoring natural ground contours, and replanting with appropriate indigenous vegetation. A landowner cannot restrict a neighbour's established right of access (via necessitas) to their property. Costs may be awarded on an attorney-client scale where a party's conduct has been particularly egregious and the party has ignored repeated correspondence seeking to resolve the dispute.

The court noted that the respondent's conduct in providing access to other users of the gate while denying it to the second applicant was "telling" and "inconceivable," though no reason was provided for the differential treatment. The court observed that the change of heart to provide access "at the door of the court" was significant. The court stated it was unnecessary to resolve the dispute about whether a dam existed before the second applicant discovered it, as the key issue was the portion of the dam on the applicants' property, which the respondent had conceded. The court commented that Mr. Smalberger and the respondent's evidence about the fence was "contrary to what the photographs depict," indicating the court's assessment of witness credibility even though it was unnecessary to make definitive findings on all disputed facts given the respondent's concessions.

This case demonstrates the South African courts' protection of property rights and environmental integrity in neighbour disputes. It affirms that property owners cannot conduct earthworks, dam construction, or other alterations on neighbouring properties without permission, even where boundaries may be unclear. The judgment emphasizes the importance of environmental rehabilitation where unlawful construction causes ecological damage. The case also illustrates the courts' willingness to award attorney-client costs where a party's conduct has been particularly egregious, including denying access rights, conducting unauthorized construction, and ignoring correspondence. The judgment reinforces the principle that landowners must respect established rights of way (via necessitas) between properties and cannot unilaterally restrict access. It also confirms that environmental experts and the Department of Environmental Affairs must supervise rehabilitation of environmental damage caused by unlawful construction activities.