By Dean Brainin
With over 500 golf courses across South Africa, living on or within close range to a golf course has become relatively normal, with new golf courses and developments showing up each year.
The difficulty with living on or near a golf course, one has to tolerate the occasional breaking of a window. However, when does this become an unreasonable nuisance?
In South Africa, the law of neighbours governs golf ball incidents resulting in property damage. Our courts find no difference if a person lives on or near a golf course.
South Africa’s neighbour law provides that neighbours should tolerate a reasonable level of interference/nuisance resulting from neighbouring land. However, when land use affects neighbours that exceeds that moderate level, it becomes unlawful and thus an actionable nuisance.
When it comes to golf balls being a nuisance, the main principles to demonstrate are that the nuisance is excessive and occurs continuously or repeatedly. Also, a person’s ability to use their property is typically significantly impacted.
In the landmark case of Allaclas Investments (Pty) Ltd & Another v Milnerton Golf Club & Others  167 SCA, Allaclas Investments (that owned property facing the golf course) brought an application against the Milnerton Golf Club. It sought an order that the Club is interdicted from allowing the sixth hole on the golf course to be used for play until the golf course took the necessary steps to reduce the number of stray balls striking the Applicant’s property which property lay adjacent to the fairway of the sixth hole of the golf course. The number of stray balls hitting the Applicant’s property posed a danger to the Second Applicant occupying the adjacent property.
The High Court decided that a landowner of a property adjoining a golf course had to expect and tolerate a certain level of intrusion from stray golf balls. The Applicant had to undertake various steps to alleviate and reduce the problem.
On appeal, the Supreme Court of Appeal held that the high incidence of stray balls hit directly into the residential property of the Applicant (875 golf balls between December 2003 and March 2006) posed a severe danger to the Applicant and his family. It thus constituted a nuisance, even considering the Applicant’s choice to live on a golf estate.
The court further accepted that the use of the land as a golf course did not constitute an unusual or unreasonable use and that it would be reasonable and expected for those residing on the golf course to tolerate some ingress of badly hit golf balls. However, what the Applicant’s had to endure (875 golf balls between December 2003 and March 2006) went considerably further than what a neighbour is obliged to tolerate.
In this regard, a person must never forget that when approaching a court for an interdict to prevent or terminate a nuisance stemming from the neighbouring property, a party must show that the use of the adjoining land or the situation that causes the nuisance is excessive and unlawful. The neighbour must also demonstrate that the nuisance occurs continuously or repeatedly. A single occurrence of such a nuisance would be insufficient to obtain an interdict or any similar relief. Moreover, the said nuisance must not be tolerable to the “reasonable man”.