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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TROUBLE WITH THE NEIGHBOURS
Good fences make good neighbours, so the adage goes. But often more than a fence is needed to maintain good neighbourly relations! 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. The difficulty, however, arises when the actions of our neighbours, whether direct or indirect, make us suffer some kind of loss, whether this be a loss of the use and enjoyment of our property or a monetary loss.
Tree Nuisance – STBB
In terms of our private nuisance law, every property owner has a right to unimpeded enjoyment of his land. 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.
Some particular instances are described hereafter. Accordingly, neighbour A may do with those plants as he pleases, which includes having them removed. 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.
Your neighbour will be liable for the costs incurred. 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 since and in they jointly erected a concrete fence between their properties. The good neighbourly relations which existed between the two parties were gradually being marred by these trees as Vogel was of the opinion that the trees were causing a nuisance to him.
Vogel applied to Court for an order to have the trees removed, alleging that umnicipality trees had given rise to problems caused by overhanging branches and encroaching root systems.
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.
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 municipailty reasonableness test which seeks to strike a balance between the competing interests of the parties. 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.
And, like any other living thing, trees also require in return for pleasure provided a certain amount of effort and tolerance. mynicipality
ENCROACHING TREES, BRANCHES, LEAVES AND ROOTS
No case had been made out why the removal of the trees was necessary. If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary. This should not be seen malhereb 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.
The branches can only be cut in line with the boundary. The Court further indicated that the concrete wall was not severely damaged and the parties could repair the wall rather than remove the trees. 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. 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 measures which could be taken to deal with the problem rather than removing the trees.
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 City.
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. Requests for pruning or removal of trees on municipal property shall be done by City Parks or its appointed service providers.
If Crewe should refuse, Vogel will then be entitled to cut off the overhanging branches, in line with the boundary; 3.