Sometimes, fencing disputes arise between neighbours in South Africa, especially when one landowner wants to upgrade or change a boundary fence. The law sets out the rights and responsibilities of neighbours in these situations, distinguishing between obligatory contribution areas and non-obligatory contribution areas. Understanding these rules can help landowners navigate fencing issues while maintaining good neighbourly relations.
WHEN MUST NEIGHBOURS PAY? (Obligatory Contribution Areas)
If one owner erects or maintains a standard boundary fence, they can legally require the adjoining neighbour to contribute to the costs. However, if a landowner decides to upgrade a fence—for example, by making it jackal-proof or converting it into a game fence—they cannot force their neighbour to contribute unless the neighbour agrees.
This is supported by Section 4 and Section 11 of the Fencing Act:
“The owner of a holding situated in an area in which contributions are obligatory in respect of boundary fences other than jackal-proof fences, may erect a jackal-proof fence in respect of that holding or convert any boundary fence in respect of that holding into a jackal-proof fence but shall, as against the owner of an adjoining holding who does not wish such fence to be jackal-proof, bear any additional cost necessary to make it jackal-proof.”
“An owner may at any time alter any boundary fence in respect of his holding so as to make it a fence of a superior type; Provided that the owner of the adjoining holding separated by such fence shall not be liable to contribute to the alteration unless and until he derives beneficial use from the type of the fence as altered.”
This means that while the basic boundary fence may be a shared responsibility, any extra costs for special fencing must be covered by the landowner who wants the special upgrade.
Non-Obligatory Contribution Areas: When Neighbours May Contribute
The landowner who erects a boundary fence, in such non-obligatory area, they cannot automatically demand contribution (or reimbursement) from the neighbour. However, if the neighbour benefits from the fence – such as by using it to enclose livestock – the law allows the fence builder to claim a fair contribution.
This is set out in Section 5 of the Fencing Act:
“If the owner… has lawfully erected a boundary fence… and the owner of an adjoining holding adopts means whereby that fence is rendered of beneficial use to himself… it shall be obligatory on the owner who has made beneficial use of the fence to contribute to the cost…”
In other words, if your neighbour makes use of the fence, they may be legally required to help pay for it even if they did not initially agree to its construction.
Upgrading to a Game Fence: Who Pays?
Courts have generally ruled that mutual agreement is key when altering boundary fences, as seen in Van Rensburg v Coetzee (105/77) [1979] ZASCA 85 (24 Augustus 1979), where the court emphasised that modifications benefiting only one party should not impose unfair costs on the other. If the neighbouring landowner does not consent, the one who wants the upgrade must cover all additional costs.
Final Thoughts
Fencing disputes can quickly become costly and contentious, but understanding your legal rights under the Fencing Act 31 of 1963 can help you navigate these situations effectively. If you are considering upgrading or erecting a boundary fence, it is always best to communicate with your neighbour, review the relevant legal provisions, and seek legal professional advice if necessary.
