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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Vogel applied to Court for an order to have the trees removed, alleging that the trees had given rise to problems caused by overhanging branches and encroaching root systems. Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed. The Court confirmed that the test to be applied in deciding whether the nuisance complained of is actionable in other words, is worthy to be determined by means of a Court actionis the objective reasonableness test which seeks to strike a balance between the competing interests of the parties.
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.
ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS
Trees on city-owned land that has been leased out, is the responsibility of the lessee, but approval for any work must be obtained from City Parks in writing. In the case Bingham v City Council of Johannesburg WLDthe municipality planted trees along cerex footpath cered beautification purposes. 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.
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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. The branches can only be cut in line with the boundary. Your neighbour will be liable for the costs incurred.
Crewe was not able to prove that the problem with the leaves in his swimming pool, gutters and sewage system was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired.
Tree Nuisance – STBB
No case had been made out why the removal of the trees was necessary. 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.
Vogel and Crewe were neighbours and Crewe was of the opinion b a tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property.
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. Good fences make good neighbours, so the adage goes. These, he complained, were blocking gutters and the sewage system, shedding leaves in his swimming pool and surrounding areas and were also damaging the concrete wall and his parking area.
TROUBLE WITH THE NEIGHBOURS – ESI Attorneys
No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. If branches encroach on the land of a neighbour and cause a nuisance the neighbour may request the owner to remove the branches and if the owner fails to remove them within a reasonable time after demand the neighbour may:.
When you confront him, he flatly refuses munici;ality do anything about it, since they are, after all, trees he and his wife planted when they bought the municipallty 30 years ago! 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 malnerbe the cost of removal from neighbour A. In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land.
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.
If Crewe should municiplity, Vogel will then be entitled to cut municipaliyy the overhanging branches, in line with the boundary.
They took into account the nunicipality of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe.
TROUBLE WITH THE NEIGHBOURS
Vogel and Crewe were neighbours since and in they jointly erected a concrete fence between their properties. But often more than a fence is needed to maintain good neighbourly relations! He most municipalkty has the right to do on his property as he pleases, but what about my right to use and enjoy my property? If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary.
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 only in terms of giving us aesthetic pleasure, but also functionally in the provision of shade and oxygen and environmental soundness.
No case had been made out why the removal of the trees was necessary. Should you require legal advice please contact one of our attorneys directly at the given contact addresses. 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. No drastic action, like removing the tree, was necessary and Crewe failed in his application.