I still remember the look on my client’s face, more disbelief than guilt, when an expropriation matter took an unexpected turn: it wasn’t the State infringing on his rights… he was the one who had encroached. Unintentionally.

Surveyors arrived. Valuations escalated. What began as a confident legal defence became a careful negotiation over boundary lines and compensation. We weren’t just arguing law — we were negotiating square meters and fairness.

Encroachment can catch property owners and developers off guard. Whether it’s a misplaced wall, a driveway spilling over, or a building foot that crosses the line, the consequences are legal, financial, and sometimes personal. Fortunately, South African courts have gradually moved from a rigid “remove it” rule to a more balanced approach, weighing justice, practicality, and urban integrity.

Here’s how our law has evolved:

• Foundational Principle

Smith v Basson (1979)

Confirmed the common law principle: if you encroach, you must remove the encroachment — no exceptions.

• Fairness Introduced

Waterraad v Bothma (1997)

Marked a shift in the common law. Courts began considering the interests of both parties—while still favouring the innocent landowner, they permitted the encroachment to remain where fairness justified it.

• Ownership vs. Encroachment

3. Phillips v SANParks (2010)

Debated ownership rights vs. unlawful land acquisition by encroachment, hinting at broader constitutional protections of property.

• Compensation Not Given

Mbane v Gxenya (2023)

The court confirmed that the encroaching party must show why compensation should be allowed instead of removal. If the landowner never consented and consistently objected once the encroachment became known, the court will, in all likelihood, order demolition.

• Timely Objection Matters

Pillay v Moonsamy (2024)

The court analyzed previous decisions and confirmed that it has discretion to order removal or compensation. If the landowner acted promptly to protect their rights and was ignored, the court will favour removal to avoid setting a precedent that undermines urban order and property boundaries.

• Expanded Discretion Confirmed

NCM v Red Cherry Trust & Others (2025)

Aavishkar Chundhur v Rampersad (2025)

The court confirmed that it is no longer bound by the strict rule of removal. Instead, it has broad discretion to determine what is just and equitable in the circumstances. The key question is whether removal is necessary. Courts may also call for expert input to recommend appropriate solutions—such as registering an encroachment servitude with compensation, effecting a land transfer with payment, or ordering demolition, based on the circumstances of each case.

Encroachment law is no longer a one-size-fits-all exercise in demolition. The courts are guided by fairness, factual context, and urban coherence.

If you’re dealing with an encroachment issue, consider the following:

1. Act Timeously – Delay weakens your case. Early and consistent objections strengthen your right to demand demolition.
2. Fairness and Public Interest Count – Courts look at the bigger picture, including urban planning and spatial justice.
3. Be Practical – Sometimes removal causes more harm than good. Assess whether compensation or a formal land arrangement serves all parties better.
4. Examine remedial options – Consider servitude registration, land transfer with payment, or a negotiated solution to avoid protracted litigation.