Judge scolds neighbours but refuses to jail one for contempt
Nothing rosy about garden blocking road to magistrate’s home
● Anthony Kruger never promised his neighbour a rose garden, but when he provided one she tried to get him locked up.
Sophia de Villiers, a magistrate, asked the High Court in Cape Town to send Kruger to prison for ignoring the court’s instruction to remove the garden he planted outside his and his neighbour’s properties in Paarl.
But a frustrated Judge Nolwazi Boqwana declined to do so, and scolded De Villiers and Kruger for letting their dispute get out of hand. “I must first express my displeasure as to the amount of resources spent in litigating this matter,” Boqwana said in her judgment last month.
“Whilst it is understood that these are contempt proceedings, which may carry serious consequences, I do think the manner in which this case was handled by the parties was over-elaborate.
“Apart from the fact that each of the parties had two counsel, volumes of documents and papers — some of which were at times repetitive — were presented before me.”
With friendly chats over the fence a thing of the past, Kruger and De Villiers have been communicating through lawyers for a while. De Villiers sued Kruger last year for closing off an unmade public road next to his property with a gate and by planting a garden.
The court ordered Kruger to “remove all obstructions and encroachments” within seven days. But a couple of months later De Villiers was back in court asking it to declare Kruger and the Drakenstein municipality in contempt of court and compelling them to give “reasons why they should not be committed to prison”.
De Villiers said she could not enter her property from the road because Kruger had failed to remove “some of the contents forming part of the garden, namely: trees and grass, as well as paving . . . on Riesling Road”. She said Kruger removed some of the obstructions four months after the judgment, after numerous letters from her attorney.
He was yet to move paving, which he argued improved the unmade road. De Villiers said in court papers: “The flaws in this argument are . . . that whatever the positive features of the paving may be, it is still an encroachment, and ... although it creates a surface that is suitable for vehicles to travel on, it has the effect of creating the impression that the disputed area is a garden or a part of [Kruger’s] private property.”
Kruger told the court he had no desire to be part of “a never-ending dispute caused by [De Villiers]”, who had made his and his wife’s lives “a misery”.
He said he had removed the gate, fence, flowerbed and steps at the end of the road; and the garden which he and his wife had planted in the portion of Riesling Street behind their property. He said De Villiers was being “unnecessarily difficult; alternatively she has ulterior motives”.
The trees behind his property, which De Villiers claimed blocked access to her home, were there when he bought it, he said, and he believed it would be illegal to remove them. “It is ecologically unsound, selfish, unreasonable and simply destructive to expect a tree to be removed purely for the sake of removing it, or for some emotional reason.”
De Villiers also sued the municipality because it owns the road and the trees growing on it, and allegedly failed to comply with the court order compelling it to ensure the road was reopened.
She said the municipality enclosed the street with steel fencing after the court order without any explanation, and prevented the sheriff from removing the encroachments.
The municipality said one of the trees, a camphor, was at least 60 years old and had to be protected, and that there was enough room for vehicles to pass.
Boqwana dismissed De Villiers’s application as well as the municipality’s application to rescind a section of the previous court order instructing it to “remove and regularise the encroachments”. She ordered each party to bear its legal costs.
Kruger declined to comment. “My lawyer is out of the country,” he said. “I can’t say anything without legal advice.”
De Villiers did not respond to queries on whether she intends to appeal against the decision.
[Neighbour was] unnecessarily difficult
Anthony Kruger
Paarl resident