Imagine this: Your neighbour begins construction with approved plans, and structural problems quickly emerge on your property. Your walls collapse, your garden subsides, and your land experiences significant downward sloping. Years ago, this horror scenario played out for an STBB client. Represented by esteemed property litigation expert and STBB Cape Town-based Director, Martin Bey, the case was adjudicated by the Supreme Court of Appeal (‘SCA’) and set a landmark precedent.
Until recently, the legal duty of neighbouring landowners to provide lateral support – extending beyond unimproved land – was uncertain. Crucially, it was also unclear whether the affected neighbour was required to prove negligence on the part of the other landowner to receive compensation. Fortunately, these questions were affirmatively answered in Petropulos & Another v Dias.
The case concerned neighbouring properties in Camps Bay, Cape Town, situated on a steep slope. Petropulos (‘the Appellant’) undertook deep excavation works on her property, which was undeveloped at the time. Our client, Dias, owned the adjacent, uphill property, which had a house built on it.
In early 2008, the Appellant began building works, including the construction of tiered levels and a lift shaft supported by retaining walls. Shortly thereafter, our client noticed various structural issues, namely garden subsidence, collapsing walls, and ultimately, a significant downslope shift of his property, which caused substantial damage to his home. Consequently, he sued for damages based on a breach of the duty of lateral support.
The Western Cape High Court found that a duty of lateral support existed between the properties, which duty was breached by excavating. Critically, the breach caused the slope on our client’s land to destabilise and subside. Introducing a new qualification, the High Court held that the duty extended to supporting buildings, unless the land had been unreasonably loaded. Our client was therefore awarded damages, and the matter was appealed to the SCA.
In a careful assessment of the prevailing law, the SCA comprehensively rejected the appeal and provided much-needed clarity on the duty of lateral support.
Confirming that the duty applies to developed land, the SCA held:
- The right to lateral support is a natural incident of land ownership;
- It applies to improved land, including buildings;
- It is not limited to land in its natural state;
- The duty is reciprocal and grounded in neighbour law, which is underpinned by fairness; and
- The concept aligns with constitutional values.
Notably, the SCA rejected the High Court’s introduction of a qualification based on the ‘unreasonable loading’ of land, finding that existing legal safeguards were sufficient.
In evaluating expert testimony, the SCA agreed that the Appellant’s excavations led to the removal of lateral support, which caused our client’s property to shift downslope. The SCA held that the precise geotechnical mechanism was not decisive. Instead, what mattered was that support was removed, and damage subsequently ensued. While other factors, such as inherent slope instability or rainfall, may have contributed, excavation was the primary cause of the downward sloping.
Significantly, the SCA reaffirmed that the duty of lateral support is strict. Accordingly, liability arises even in the absence of negligence or intent and affected owners are thus not required to prove fault to succeed in their claim. As a result, the SCA dismissed the appeal, providing clarity to homeowners, developers, and legal practitioners on the content and scope of the duty of lateral support under South African law.
In need of experienced legal advice? If your property has suffered subsidence or structural damage due to nearby construction, you may have a strong legal claim. Contact our premier property litigation specialist at martinb@stbb.co.za for proven expert assistance.
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