MALHERBE V CERES MUNICIPALITY PDF
6 Briefly discuss the facts and decision in Malherbe v Ceres Municipality ( (4 ) SA (A)). (10) Facts The appellant, Malherbe, approached the court for an. In Malherbe v Ceres Municipality () the Court confirmed that if the branches of your neighbour’s tree overhang onto your property, or where the roots grown. prescribed text book. ▫ Malherbe v Ceres Municipality 4 SA A.(Case number  in the case book). ▫ Gien v Gien 2 SA T.(Case number  .
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They will not order the removal of overhanging branches for the shedding of leaves. Applying these principles, the Court indicated that it is also important to bear in mind that trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.
When you confront him, he flatly refuses to do anything about it, since they are, after all, trees he and his wife planted when they bought the property 30 years ago!
TROUBLE WITH THE NEIGHBOURS
mlaherbe Crewe was not able to prove that the problem with the leaves in his swimming pool, munickpality and sewage cerex was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired. This should not be seen as an encouragement to neighbours to take the law into their own hands as our law does make provision that the owner of an adjacent property may cut overhanging branches himself only after he has requested his neighbour to do so and he has refused.
Courts will not hastily decide that trees be removed if there are other less drastic measures which could be taken to deal with the problem rather than removing the trees. Based on the evidence before it, the Court dismissed the application as: In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land. The branches can only be cut in line with the boundary. Where do you stand as a property owner and what action can you take?
This website contains general information about legal issues and developments in law. Munivipality problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed. A very important development which this case brought about, is that the Court highlighted the changed times we are living in and the increasing awareness of the importance of protecting our environment which means that even if the inconvenience and damages are apparent, the Courts will not hastily decide that trees be removed if there are other less drastic ceges which could be taken ceges deal with the problem rather than removing the trees.
Such materials are for informational purposes only and may not reflect the most current legal developments.
The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees.
Requests for pruning or municipqlity of municipalihy on municipal property shall be done by City Parks munucipality its appointed service providers. Munkcipality took into account the benefits of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe. Vogel and Crewe were neighbours and Crewe was of the opinion that a tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property.
Hopefully you will be able to resolve tree-related issues with your neighbour in a courteous way, and remember, you also have the right to enjoy your property. Rightly so as these irritations may seem trivial when weighed against the value of maintaining civil relations with those living in close proximity to you. In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.
Always contact your legal adviser for specific and detailed advice.
If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. Clearly a conflict between these two rights is possible and when courts are presented with such disputes, a balance of the interests of the two parties is considered. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.
Applying these principles, the Court indicated that it is also crucial to bear in mind that trees form an essential part of our human environment, not c in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.
TROUBLE WITH THE NEIGHBOURS – ESI Attorneys
Problems arise with overhanging branches and encroaching root systems that block gutters, sewage systems, shed leaves in the swimming pools and surrounding areas and also damage fixed structures. No case had been made out why the removal of the trees was necessary; 2. It is accepted that City Parks is the lead department responsible for tree management including streetscapes and avenue planting, cluster planting, historic trees and all other occurrences of trees within the Municjpality.
Some particular instances are described hereafter. And, like any other living thing, trees also require in return for pleasure provided a municipalit amount of effort and tolerance.
Tree Nuisance – STBB
Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties. This article is a general information sheet and should not be used or relied on as legal or other professional advice. In Vogel v Crewe and Another 4 SA T mmalherbe the applicant and respondents were neighbours whose properties were situated adjacent to each other. Surely his enjoyment cannot be at the cost of someone else?
ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS
No case had been made out why the removal of the trees was necessary. Therefore, if you approach the Court and present a convincing case why the removal of trees is necessary, the Court will grant you the relief sought. From the above it is clear that the court will only order the removal of a tree should the roots pose a real and immediate threat of damaging the property.
In instances where branches overhang from the trees of a neighbouring property, neighbour A may request that neighbour B remove those branches and if neighbour B refuses, then neighbour A may have the branches removed and claim the cost of removal from neighbour A.
This will only result in high legal costs and an inevitable, irreversible falling out with your neighbour. In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along the footpath for beautification purposes. The matter of Vogel v Crewe is also significant in this regard as environmental concerns were included in the assessment of what was objectively speaking, reasonable.
No case had been made out why the removal of the trees was necessary. Clearly a conflict between these two rights is possible and when courts are presented with such disputes, a balance of the interests of the two parties is considered.
No drastic action, like removing the tree, was necessary and Crewe failed in his application. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3.
And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance. Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging munciipality and encroaching root systems.
Neither your receipt of information from this website, nor your use of this website to contact Tomlinson Mnguni James or one of its attorneys creates an attorney-client relationship between you and the firm. He most certainly has the right to do on his property as he pleases, but what about my right to use and enjoy my property?