Question 1
Mr Nkosi, a retired attorney, owns a residential property in Pretoria. The Pienaars, own
the house next to Mr Nkosi’s house. Mr Nkosi has a beautiful garden with very big
Jacaranda trees. Although the Pienaars adore the trees, the branches are overhanging
on their property. During ...
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Mr Nkosi, a retired attorney, owns a residential property in Pretoria. The Pienaars, own
the house next to Mr Nkosi’s house. Mr Nkosi has a beautiful garden with very big
Jacaranda trees. Although the Pienaars adore the trees, the branches are overhanging
on their property. During the Spring season, hundreds of purple flowers end up falling
on their lawn to make it look untidy. In summer the branches prevent their lawn from
getting enough sunlight. There is also a very big Marula tree in the garden of the
Pienaars. A few months ago, they considered removing the Marula tree, but Mr Nkosi
informed them that the Marula tree is a protected tree species in terms of section 15(3)
of the National Forest Act 84 of 1998 which means that they are not allowed to remove
the tree without a licence granted by the Minister of Environment, Forestry and
Fisheries.
The Pienaars do not want to upset Mr Nkosi, because they know that he is fond of his
Jacaranda trees. A friend of the Pienaars, Lora, told them that since Mr Nkosi owns
the property the trees also belong to him and, therefore, he can do with the trees and
the property as he wishes. Against this background, answer the following questions:
1.1 Evaluate the correctness of Lora’s opinion that Mr Nkosi should be allowed to do
as he pleases since the property belongs to him.
While it is correct that Mr. Nkosi has a right to enjoy his property and the trees therein, this
right is not absolute. In South African law, a person's right to use and enjoy their property is
subject to the rights of their neighbors. The law recognizes that homeowners should not use
their property in a way that unreasonably interferes with their neighbor's use and enjoyment
of their own property. In this case, if the overhanging branches of the Jacaranda trees are
, causing a nuisance to the Pienaars, then Mr. Nkosi's right to enjoy his property might be
limited. Therefore, Lora's opinion is not entirely correct.
1.2 Advise the Pienaars about their legal position and options regarding the flowers and
the overhanging branches of the Jacaranda trees.
Under South African law, the Pienaars have a few options:
Self-help: They are entitled to trim the overhanging branches of the Jacaranda trees up to the
boundary line of their property. However, they should be careful not to damage the tree or
cause it to die, as they may be held liable for any harm caused to the tree.
Approach Mr. Nkosi: Before taking any drastic actions, it's always recommended to amicably
communicate with the neighbor. They can discuss the matter with Mr. Nkosi and come to a
mutual agreement about the maintenance of the trees.
Legal action: If the overhanging branches are causing significant inconvenience or damage,
the Pienaars may approach a court for relief. They might seek an order requiring Mr. Nkosi to
trim or maintain the trees to prevent them from overhanging.
1.3 The Pienaars feel aggrieved about the provision regarding the removal of the Marula
tree.
If the Pienaars challenge the provision in the National Forest Act regarding the removal of the
Marula tree based on its potential contravention of their property rights as stipulated in Section
25(1) of the Constitution, a court would likely adopt a two-pronged approach:
Limitation Analysis: The court will determine whether the provision in the National Forest Act
is a reasonable and justifiable limitation on the Pienaars' property rights in terms of Section 36
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