Compulsory Transfer of Encroached-Upon Land: A Constitutional Analysis

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In the case where an encroachment is erected on the land of another, the affected landowner can ordinarily demand that the encroaching structure be removed. In terms of the South African common law, this is said to be the default remedy in the case of encroachment by building. This remedy is based on the right to prevent interference with the use and enjoyment of one’s property. It has been accepted that South African courts, in line with the global trend in this area of law, indeed have the discretion to award compensation instead of removal of a building encroachment. For pragmatic and policy reasons courts seem less reluctant to exercise its discretion in favour of leaving building encroachments in place, against compensation, despite the common law right to demand removal.