NUISANCE AND TRESPASS TO LAND
Only a few Southern African cases of nuisance and trespass to land have precedential value for common law jurisdictions.
In Kanniappen v. Govender,1 the plaintiff had entered a written agreement for the purchase of a farm of 158 acres. The agreement provided that possession and occupation of the farm would be delivered to the plaintiff on the 30th June 1959, after which the plaintiff would receive the rents and income of the farm and be responsible for rates, insurance and other outgoings. Ownership of the farm was not to pass to the plaintiff and the property was not to be registered in his name until the purchase price (payable in annual installments) had been fully paid or guaranteed. This had not occurred at the time of the litigation. The plaintiff brought an action of trespass in order to obtain ejectment of a tenant who occupied fifteen acres of the farm and refused to vacate it on the 30th June 1959.
The court held that the plaintiff could not maintain an action of trespass because he had not obtained possession of the fifteen acres occupied by the defendant. Trespass was described as a wrong against actual possession, a disturbance of possession from which arose a right to restoration of possession and damages. It afforded no remedy to one entitled to obtain possession but not disturbed in____________________