By Fouché Strydom (Senior Associate at Hayes Incorporated)
GOOD FENCES MAKE GOOD NEIGHBOURS, OR DO THEY?
Your neighbour is not a nosy or noisy guy, his trees don’t drop leaves in your swimming pool, no, your trouble with the man next door relates to a fence. This fence is your glorious game fence that you had constructed at great cost of money, time and effort to keep your Eland and Sable antelope enclosed and from wandering off. It is an integral part of your game farm and the hunting activities you conduct there. Coincidently this fence is also the boundary fence with your neighbour, who used to be quite content with ploughing and sowing but recently started to dabble in the hunting of game – he is exploiting your fence for his benefit.
Neighbourly disputes typically fall within the domain of the law of delict. Where a boundary fence between two adjacent farms is the bone of contention, however, a little-known piece of legislation appropriately named “The Fencing Act” (Act 31 of 1963) may hold the relief that you seek. The Act consolidates the laws relating to fences and the fencing of farms and other holdings, and matters incidental thereto. For fences being the boundaries between neighbours, it can be said that the Act sets out to achieve good neighbourly relations between farmers.
By way of example the Act deals with the following matters, amongst others –
• where a fence was erected by one farmer and his neighbour derives beneficial use from it, the neighbour who constructed the fence may claim that his neighbour contributes to the cost of the fence;
• similarly, when your neighbour adopts your fence for his beneficial use, you can ask that he shares in the costs to maintain and repair the fence;
• should your neighbour, for example, start a lion breeding program and upgrade the fence to keep his lions in (and your Eland and Sable safe) you cannot be expected to share in the costs of the lion-proof fence, unless and until you decide to keep lions yourself;
• where the boundary line between two farms is formed by a river or a range of hills along which it is impractical or inexpedient to construct a fence, the owners may agree on a fair give-and-take line to be fenced as a boundary between the two farms, in accordance with the Act;
• the Act proclaims certain conduct, such as opening gates and leaving them open or unfastened, or finding open and passing through a gate without closing it, as criminal offences; and
• should any fence-related disputes arise between neighbours, the Act provides for a relatively simple and cost effective dispute resolution process which involves the parties nominating and appointing two members to a three-man board – the third member being appointed independently by the two nominated members. The board’s decision is binding on both owners and has the same status as a judgment or order of the magistrate’s court.
Undoubtedly secluded farmers in the far corners of our rural country would have refined the skills of friendly dispute resolution with their neighbours and fellow farmers, however, should you and your farmer-neighbour ever enter the fray on anything fence-related, instead of considering the customary Wild West pistol duel, you may be well advised to look to the Fencing Act for recourse.
This article is not intended to be legal advice or an exhaustive discussion on the legislation and law in question. Should you require advise on the law and legislation discussed, please contact us.