Support thy neighbour
By Juna Phillips and Kara Fischer
Petropulos & Another v Dias, a judgement of the Supreme Court of Appeal (SCA) on 21 May 2020, concerned neighbours: owners of adjacent erven on the steeply sloping mountainside of Camps Bay, with Mr Dias’ property being situated above that of Ms Petropulos.
Dias resided in a house on his property. Petropulos excavated her property in preparation for the building of a house, and the excavation was substantial to produce three tiers and a lift shaft. Soon the entire slope on Dias’ property subsided, and cracks appeared in walls, floors, and even the swimming pool on his property.
Dias instituted a claim for damages against Petropulos in the High Court, Cape Town. The Court held that Petropulos owed Dias a common law duty to provide lateral support to his property, the excavations undertaken on Petropulos’ property breached that duty, as a result of which the slope on which the Dias property is situated mobilised and subsided, and Petropulos was liable for the damages that Dias could prove.
Petropulos appealed to the SCA. In the SCA Petropulos had two main arguments.
The common law duty to provide lateral support applies only to land in its natural state and does not extend to constructions such as buildings on it (under English law that would be correct).
The SCA held that under South African law the duty of lateral support is not limited to land in its natural state, and extends to buildings on the land:
“In our neighbour law, fairness and equity are important considerations. … those considerations are the basis of the law between neighbours. Furthermore, in our constitutional context, the principle of lateral support must find expression in the constitutional value of Ubuntu, which ‘carries in it the ideas of humaneness, social justice and fairness’. The English law principle of lateral support in all its rigidity may well be inimical to all these.”
Petropulos attacked the common law rule that strict liability applies in instances of breach of the common law duty to provide lateral support. Strict (no fault) liability means that a defendant will be held liable even in the absence of the defendant intentionally or negligently causing the harm.
The SCA confirmed that strict liability applies:
“Also, a cause of action based on strict liability in cases such as this, serves to ensure that those who suffer damage are not non-suited because of the absence of fault or because of their inability to prove the presence of fault. As is evident in this case, [Dias] simply did not know exactly what was happening on [Petropulos’] property, other than that his property was damaged. Importantly, there is no attack on the strict liability action as being contra bonos mores, or unconstitutional. There are therefore no policy considerations for our law to, a priori, set itself against an action based on strict liability for breach of lateral support, as cases always turn on their own facts.”
Petropulos’ appeal was dismissed, cementing the idea that neighbourly duties can run deeply underground. We doubt that an appeal to the Constitutional Court will succeed.