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[2015] ZAWCHC 163
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Beck v Berg River Municipality (20691/2011) [2015] ZAWCHC 163 (5 November 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
number: 20691/2011
DATE:
05 NOVEMBER 2015
In
the matter between:
RHYNARDT
BECK
....................................................................................................................
Plaintiff
And
BERG
RIVER
MUNICIPALITY
............................................................................................
Defendant
JUDGMENT
Before:
The Hon. Mr Justice Binns-Ward
Hearing dates: 26-28 and 30 October 2015
Judgment
delivered: 5 November 2015
BINNS-WARD
J:
[1]
The plaintiff
instituted action against the defendant municipality for compensation
in respect of the damages allegedly sustained
by him as a consequence
of flood damage to his residential property at [Erf 1……],
[P…….], [W……
C…….].
[1]
The property concerned is situated at the edge of the suburban area
of the town at the corner of [D…… H…..]
and
[B…….] Streets on the south eastern boundary of
Piketberg. The property was subject to flooding on three separate
occasions in 2007, 2009 and 2011, respectively. The compensation
sought by the plaintiff was originally in respect of the consequences
of all three of the aforementioned happenings, although it is not
clear from the particulars of claim how, if at all, the computation
of the sum claimed relates to anything other than the 2011 flood.
[2]
The claim was founded
on the following allegations:
1.
That the defendant was
under a duty in law -
a.
to ensure that the
stormwater drainage system in the area was effective to drain flood
waters and to prevent flooding of premises;
b.
to undertake
appropriate construction and maintenance measures to ensure that the
road drainage systems functioned optimally at
all relevant times; and
c.
to investigate and put
in place effective measures should it appear that premises are
flooded during the rainy season.
2.
That the defendant
acted in breach of its aforementioned duty in law by -
a.
failing to provide a
drainage system which could effectively dispose of the storm waters;
and/or
b.
not maintaining the
existing drainage system in adequate order; and/or
c.
failing timeously to
put in place measures to prevent a repetition of flooding.
3.
That the defendant
should have foreseen in the circumstances alleged that the plaintiff
could suffer damages and was negligent in
having failed to take
reasonable steps to prevent such harm from occurring.
[3]
The defendant raised a
special plea arising out of the alleged non-compliance by the
plaintiff with the requirements of s 3
of the Institution of
Legal Proceedings against certain Organs of State Act 40 of 2002. It
also pleaded over and denied liability
for the claim in any event.
In its general plea, the defendant –
1.
admitted that it was
under a duty in law to maintain the storm water drainage system in
its area of jurisdiction;
2.
otherwise denied the
plaintiff’s allegations as described in paragraph [2].1,
above;
3.
pleaded that it had in
any event discharged its obligations in respect of the maintenance of
the storm water drainage system;
4.
denied that it had been
negligent, as alleged, and pleaded that such damage as the plaintiff
might have suffered was the result
of the plaintiff’s
negligence in one or both of the following respects:
a.
that, knowing that his
land was low lying and susceptible to natural run-off, he had failed
to comply with the National Building
regulations by providing for the
necessary drainage works in respect of the construction he had
undertaken on the property;
b.
failing to provide for
drainage works on his property to divert storm water away from his
residence.
5.
pleaded in the
alternative, and in the event of the court finding that the defendant
had been negligent in the respects alleged,
that such negligence had
not been causal of the damage sustained by the plaintiff; further
alternatively, that the plaintiff’s
own negligence had
contributed to his loss.
[4]
In the course of the
judicial case management process the parties obtained a ruling in
terms of rule 33(4) of the Uniform Rules
directing that the
‘merits’ be separated from quantum, and that the former
be tried and determined before the latter.
The separation
direction did not, however, define what was comprehended by the
‘merits’ of the case and made no provision
whatsoever for
the trial and determination of the special defence raised in the
special plea. This was unsatisfactory; cf.
First
National Bank - A Division of Firstrand Bank Limited v Clear Creek
Trading 12 (Pty) Ltd and Another
[2015] ZASCA 6
(9 March 2015), 2015 JDR 0385 (SCA), at paras 8-14,
and the other authority referred to there, notably
Absa
Bank Ltd v Bernert
2011 (3) SA 74
(SCA).
[5]
Having regard to the
matters involved, the special defence should have been identified for
preliminary and special determination
before the hearing of the
action itself. In addition, the issues to be determined under
the label ‘merits’ should
have been expressly
delineated. Furthermore, in the context of there being a
summary of expert evidence by a single witness
on behalf of the
plaintiff concerning the design and adequacy of the drainage system
and no adumbration of any expert evidence
at all concerning the
alleged defects in the design of the building improvements on the
plaintiff’s property, the parties
should have been required by
the judicial case manager to submit a detailed list of the disputed
issues in the case, including
an indication of their respective
positions in respect of each issue and the evidence they proposed to
lead in support thereof.
[6]
As matters transpired,
it was only some months after the matter had been declared
trial-ready that the plaintiff lodged an application
in terms of
s 3(4) of the Institution of Legal Proceedings Act for
condonation of its non-compliance with the notice requirements
prescribed in terms of s 3(1) and (2). The application was
opposed. The defendant delivered its opposing affidavit
nearly
two months later, and barely more than a week before the postponed
trial date. The plaintiff elected not to file replying
papers.
The opposing affidavit was not included in the indexed papers when
the court file was submitted for the allocation
of a trial judge.
Accordingly, when the matter was called for trial before me it came
as a surprise that the application
was opposed.
[7]
In the circumstances
described, the parties may consider themselves fortunate that I
agreed to proceed with the hearing, instead
of remitting the case for
further pre-trial case management. I had cause to regret my
willingness to do so as the trial proceeded
and issues were raised
and objections taken – argument concerning the admissibility of
the records of rainfall figures for
the town of Piketberg during the
period 1999-2014 being an example – which plainly concerned
matters that should have been
sorted out in the pre-trial process.
The judicial case management process is in its infancy in this
jurisdiction and there
is at this stage a noticeable disparity
between the levels of scrutiny brought to matters by individual case
manager judges before
matters are certified as trial-ready. I
think it is necessary that a warning is sounded to practitioners,
however, that by
asking for and obtaining a trial-readiness
certificate in circumstances when a matter is in fact not properly
prepared for hearing,
they run the risk of the allocated trial judge
declining to hear the matter and referring it back for further
management in terms
of rule 37(8).
[8]
The condonation sought
by the plaintiff for non-compliance with the Institution of Legal
Proceedings Act concerned only that part
of his claim that related to
the 2007 and 2009 floods. Notice of the intention to institute
proceedings had been given timeously
in respect of the 2011 flood.
The point indicated in a reply by the defendant to a request for
trial particulars that the
notice had not complied with the service
provisions in s 4(1) of the Act
[2]
was not persisted with in the opposing affidavit or in oral argument.
[9]
The requirements that
the plaintiff had to satisfy in order to obtain condonation are set
out in s 3(4)(b) of the Act.
He was required to satisfy
the court that -
(i)
the debt had not been
extinguished by prescription;
(ii)
good cause existed for
his failure; and
(iii)
the organ of state was
not unreasonably prejudiced by the failure.
[10]
Ordinarily, it is for a
defendant to plead extinctive prescription. In terms of the
Prescription Act 68 of 1969
a court is not permitted of its own
motion to take notice of prescription.
[3]
The first of the aforementioned requirements in terms of s 3(4)(b)
of the Institution of Legal Proceedings Act, however,
would appear to
impose an
onus
on an applicant for condonation under the provision to satisfy the
court that its claim has not been extinguished by prescription.
The reason for this is probably because it is clear from the
provisions of s 3(4)(c) that the statutory draftsman had in
contemplation that such applications would be brought before the
institution of the main proceedings.
[4]
It is not necessary in the current matter, in which the application
was made only after the action had been instituted and
the pleadings
had closed, to determine the effect on the first requirement of the
failure by a defendant to have raised the defence
of prescription on
the pleadings when raising a special plea of the nature pleaded by
the defendant in the current case coupled
with a general pleading
over. This is because the plaintiff’s counsel conceded in
argument that the court could not
be satisfied that the part of the
claim that was based on the 2007 had not prescribed. There was,
however, no reason to believe
that the claim, insofar as it is based
on damages sustained in the 2009 flood, had prescribed.
[11]
As to the good cause
requirement, it is well-established that the concept of ‘good
cause’ defies generalised definition
and is very much dependent
on the context of the given case. The notion of ‘good
cause’ in condonation applications
in terms of s 3(4), was
discussed by the appeal court in
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA), at para 10-14. With reference to
what were described as the second and third of the prescribed
requirements -
good cause and the absence of unreasonable prejudice -
Heher JA, writing for the court, held at para 12 that
‘There
are two main elements at play in s 3(4)(b), viz.
the subject's right to have the merits of his case tried by a court
of law
and the right of an organ of state not to be unduly prejudiced
by delay beyond the statutorily prescribed limit for the giving of
notice. Subparagraph (iii) calls for the court to be satisfied
as to the latter. Logically, subparagraph (ii) is directed,
at
least in part, to whether the subject should be denied a trial on the
merits’.
[12]
There was no doubting
on the face of matters that the plaintiff had a triable claim, and
that his institution of the action was
in
bona
fide
pursuit of
obtaining its adjudication. It also appeared from the content
of the notice given in his attorney’s letter
of 6 July 2011
that the plaintiff had been in communication with the defendant’s
representatives about the flooding issue
throughout the period after
the first flood in 2007.
[5]
Furthermore, the application was brought at a stage when the matter
had been declared trial-ready and the matter actually
set down for
trial. It was therefore possible to assess the application in
the context of the closed pleadings and the summary
of expert
evidence delivered by the plaintiff in respect of the alleged
deficiencies in the municipal drainage system. In
the absence
of any indication that controverting expert evidence would be adduced
by the defendant, the summary of evidence before
the court suggested,
at any rate from the perspective that the court had before hearing
any evidence, that the plaintiff’s
claim enjoyed an arguable
prospect of success. Subject to a consideration of the nature
and extent of any prejudice suffered
by the defendant as a
consequence of the plaintiff’s failure to give notice timeously
under the Act, there did not seem to
be sufficient reason why he
should be denied his constitutional right to have the merits of his
case tried by a court. I
was therefore satisfied that the
applicant had satisfied the second of the statutory requirements for
condonation, at least in
respect of those parts of his claim that had
not been extinguished by prescription.
[13]
Whether the defendant
had been unreasonably prejudiced by the late notice was obviously
something especially within its own knowledge.
In its opposing
affidavit deposed to by the defendant’s Projects Engineer:
Corporate Capital Projects, the issue of prejudice
to was dealt with
laconically, as follows:
Juis omrede die Eiser nie
na die 2007 en 2009 vloede kennis aan die Eiser (sic) gegee het van
sy voorneme om aksie in te stel teen
Verweerder nie, word Eiser (sic)
benadeel. Verweerder het eers gedurende Julie 2011 kennis van
die voorgenome regsaksie,
klaarblyklik ook wat betref die 2007 en
2009 vloede gekry. Die noodwendige gevolg is dat Verweerder
benadeel word in sy ondersoeke
na die 2007 en 2009 vloede.
Voorts verydel dit die doel van die wetgewing soos Eiser dit self
beskryf.
The nature of
the prejudice to which the defendant allegedly would be exposed were
the claim in respect of the 2009 flood entertained
was not
specified. In its reply to the plaintiff’s request for
trial particulars the only complaint specified by the
defendant in
respect of the non-complaince with the Act was the alleged
non-compliance with the service of notice requirements
prescribed in
s 4(1). As already noted, the defendant did not persist
with that complaint. It is not self-evident
that the defendant
would be unreasonably prejudiced by the lack of notice because it is
apparent that the defendant’s officials
were aware of the
flooding at the time it took place and visited the plaintiff’s
property to view the damage.
[14]
The purpose of the
notice required to be given by ‘creditors’
[6]
in terms of the Institution of Legal Proceedings Act is to alert
organs of state to matters of which they might not have had notice
so
that they may investigate the facts giving rise to a claim while the
history is still fresh. As mentioned, in the factual
context of
the current matter it is apparent that the defendant’s
officials had direct knowledge of the incident giving rise
to the
2009 claim and had been able to inspect the premises at the time.
It was therefore not surprising that the deponent
to the opposing
affidavit did not provide any particulars of how the defendant could
be said to have been unreasonably prejudiced.
He would probably
have been hard-pressed to do so.
[15]
The contention in the
opposing affidavit that granting condonation to the plaintiff would
subvert the objects of the Act was misplaced.
The object of the
Act is not to keep
bona
fide
claimants out
of court on technical procedural grounds. It is to balance the
interests of claimants with those of organs
of state, which in the
nature of things frequently face claims in circumstances in which the
functionaries who have to decide whether
to concede or contest them
have no personal knowledge of the events upon they are based and
therefore need timeous notice in order
to be able to establish the
relevant facts. The objects of the Act would in no manner be
thwarted were condonation to be
granted in the current case. On
the contrary, to have denied condonation in the circumstances of the
institution of the current
action would have been to ignore the
purpose of the balance between the parties’ interests that the
condonation provisions
of the Act are designed to strike for reasons
of justice and fairness.
[16]
For the aforegoing
reasons an order was made granting condonation to the plaintiff for
his non-compliance with the Institution of
Legal Proceedings Act in
respect of the claim based on the 2009 flood. Costs were
reserved for later determination so that
they could be decided with
regard to what happened during the trial. My impression at the
time I made the condonation order
was that the defendant had acted
unreasonably in declining to waive compliance with the Act and in
opposing the condonation application.
Nothing in the subsequent
conduct of the trial altered that impression. In the
circumstances the defendant will be ordered
to pay the plaintiff’s
costs in the application; cf.
Madinda
supra, at para 30.
[17]
As mentioned, I was not
satisfied with the vague definition of the issues separated in terms
of rule 33(4) for hearing at the first
stage. I therefore
directed that counsel should, with specific reference to the numbered
paragraphs in the pleadings, draw
up a detailed description of issues
requiring to be determined in the first stage trial. The
resultant document, entitled
‘
Opsomming
van Geskilpunte waaroor die Hof moet beslis
’
was put in as exhibit ‘A’. Its import is summed up
in paragraphs 6 and 7, which it is convenient to quote
in reverse
order:
7
….word die Hof versoek om ’n bevinding
te maak ten
aansien van die volgende:
7.1
Die nalatige verbreking al dan nie van Verweerder se regsplig;
7.2
Indien so bevind, of daar ’n kousale verband is tussen die
beweerde
skade en sodanige verbreking van die regsplig;
7.3
Òf Eiser nalatig was ten opsigte van sy eie skade en tot welke
mate.
6
Wat die nexus tussen handeling (of versuim) en gevolg betref,
word
hof (sic) nie versoek om oor die spesifieke skade of bedrae soos
uiteengesit in par 17 en 19 te beslis nie maar word net versoek
dat
hof (sic) beslis òf vloedskade as gevolg van Verweerder se
beweerde onregmatige en nalatige optrede veroorsaak is,
alternatiewelik deur Eiser se nalatige optrede, alternatiewelik of
Eiser en Verweerder skade moet verdeel in terme van die Wet op
Verdeeling van skade (sic) nr.34 van 1956.
[18]
Turning now to the
substantive issues identified for adjudication in this stage, I must
say at the outset that the difficulty I
have had with this matter –
as I shall illustrate below - is the paucity of relevant evidence.
[19]
The plaintiff purchased
his property in 2005 from a developer, who had acquired the land at
that edge of the urban area of Piketberg
from the defendant
municipality for the purpose of subdivision and residential
development. The plaintiff’s property
was thus
appropriately zoned in terms of the applicable zoning scheme for
housing development. The plaintiff took occupation
of the house
built for him on the property during 2006. Buitenkant and De
Hoek Streets had been laid out before the development
of the
plaintiff’s property. It is not apparent on the evidence
that was adduced whether the subdivision and development
of the land
on which the plaintiff’s property stands had been in
contemplation when the roads were laid out. Nothing
in the
evidence suggests that additional provision was made for the erven to
be developed along the outer side of Buitenkant Street
when the land
was subdivided. (The provisions of the Land Use Planning
Ordinance 15 of 1985 empower a local authority to
require that
adequate services are afforded in respect of subdivided property
before any part of it is transferred and the subdivision
thereby
confirmed.
[7]
The Ordinance also empowers a local authority to impose, as a
condition of approving a subdivision, a charge to provide for
the
expense to be incurred by the local authority in respect of the
infrastructural demands of the ensuing development of the subdivided
land.
[8]
These matters, which might have had some bearing on the defendant’s
witnesses’ evidence about the Municipality’s
financial
constraints, were not explored in the evidence, however.)
[20]
As appears from the
basis of the plaintiff’s case, described earlier, the central
factual issue in the matter is the adequacy
and effectiveness of the
municipal drainage system that serves the area of the town in which
the plaintiff’s property is
situated and the extent of the
defendant’s legal obligations in that regard. It is
convenient therefore to consider
that question first because, if
determined adversely to the plaintiff’s allegations, it will be
dispositive of the claim.
[21]
It was not in dispute
that flooding occurred at the plaintiff’s property on 24
December 2007, 23 and 26 June 2009, and on
a date in April 2011.
The extent of the flooding in 2009 and 2011 was captured in
photographs taken by the plaintiff on those
occasions, which are
contained in exhibit B. It is not necessary to go into detail,
for it is manifestly apparent from the
photographs that the municipal
drainage system at and near the intersection of De Hoek and
Buitenkant Streets in the vicinity of
the plaintiff’s property
had been completely overwhelmed by the volume of storm water on both
occasions, with the result
that the plaintiff’s property was
very badly flooded. That physical damage was caused to the
building and its appurtenances
on each occasion as a result of the
flooding is also clearly evident from the photographs, and confirmed
in the oral evidence of
the plaintiff.
[22]
The photographs put in
by the plaintiff showing the level of flood water inside his house
and in his backyard in 2009 testified
to the very considerable volume
of water that must have entered his property. The water level
against the back wall in the
yard reached a level of more than 0,75m
above ground level. The force of the water buckled the roller
garage doors and shifted
them out of their frames. The extent
of the flooding in 2011, while also serious, was reportedly not quite
as severe as that
in 2009. It is not clear, but this may have
been due to some alterations that the plaintiff had himself effected
after the
2009 flood to try to lessen the effect of water run-off
into his property. No evidence was adduced, however, to enable
an
assessment of the efficacy of these alterations in the
circumstances of the 2011 flood.
[23]
The intersection of De
Hoek and Buitenkant Streets is at a low lying spot. Both roads
slope downwards to the point at which
they converge almost directly
outside the plaintiff’s property. The evidence
established that it was principally down
De Hoek Street that the
floodwater bore down on the plaintiff’s property. De Hoek
Street runs down the mountainside
from the Main Street for a distance
of 250 metres to the corner with Buitenkant Street. The fall of
De Hoek Street from Main
Street to Buitenkant Street was determined
by Mr Wernher Simon, an expert who testified for the plaintiff, as 45
metres. This
confirms that the gradient slopes steeply down to
the plaintiff’s property.
[24]
According to the
rainfall figures for Piketberg obtained by the plaintiff from
AgriOorsig,
[9]
the 2007 annual rainfall was the third highest during the period
1999-2012, even if one disregards the unusually high out-of-season
rainfall of 40mm in December of that year. Annual rainfall in
the area, according to the figures provided, varied during
the
13-year period between a low of 208mm and a high of 473mm. The
average was 287mm. The total rainfall in 2007 was
recorded as
having been 408mm. No flooding problems at the plaintiff’s
property occurred during the wet winter months.
Similarly, no
problems manifested during the even wetter year of 2008, when the
highest annual rainfall for the 13-year period
was measured,
including 146mm in the month of July alone. These
considerations suggest that the drainage system was ordinarily
able
to cope.
[25]
The rainfall that
caused the flooding in December 2007 appears to have occurred in what
might be described as cloudburst conditions.
It was put to the
plaintiff by the defendant’s counsel that 40mm of rain had
fallen within the space of two hours.
[10]
The plaintiff was away on holiday at the time and therefore not able
to testify directly as to the conditions. The
uncontroverted
evidence of Mr Johannes Engelbrecht, who is currently the Engineer:
Projects at the defendant municipality and in
2007 held the position
of the Assistant Civil Engineer, was that the flooding had occurred
in exceptionally stormy conditions that
had caused flooding and wind
damage throughout the town. He related that, amongst others,
some of the bigger retail outlets
in the centre of the town had also
experienced flooding and several roofs had been blown off.
Trees had also been uprooted
in various places. A local
disaster had been declared and the defendant had employed additional
staff and enlisted the assistance
of outside agencies such as the
police to deal with the consequences of the exceptional weather.
[26]
The plaintiff’s
expert witness, Mr Wernher Simon, who has broad experience in the
design and construction of drainage systems,
testified that it was
customary for such systems to be designed and built with a capacity
to deal with a certain extremity of situations
determined from local
knowledge and historical records. The norm, according to Mr
Simon, would be to provide capacity to
deal with a once in 50-years
flood. There was no evidence to establish how conditions in the
December 2007 weather occurrence
compared to a once in 50-years flood
event. Certainly, the daily rainfall figures mentioned in the
expert opinion evidence
summary delivered in terms of rule 36(9) in
respect of the evidence of Wernher Simon and the figures in the
tables of rainfall
figures recorded for Piketberg by Boland Agri for
the years 2012-2014 that were put in by the plaintiff suggest that
rainfalls
of around 40mm had been recorded on a number of days over
the period from 2007 to 2014. These indicators were not
determinant
of the likelihood of flooding, however, because the
intensity of the rainfall is more significant than the total fall in
a 24-hour
period in testing the capacity of a drainage system: 25 mm
of rain within the scope of an hour will present a far greater
challenge
to a drainage system than the same amount of precipitation
more or less evenly spread over a 24-hour period. There was
also
no evidence to establish the path of the flow of water that
flooded the plaintiff’s house on that occasion, although it
seems
probable, in the absence of any evidence that it had on that
occasion taken an exceptional route, that it would have come mainly
down De Hoek Street. The low lying position of the plaintiff’s
property rendered it naturally vulnerable to flooding
and thus, if
the drainage system’s capacity was exceeded in the exceptional
weather conditions, the resultant occurrence
of flooding at the
plaintiff’s property is not cause for surprise.
[27]
The claim being
entertained in the action does not include anything arising out of
the 2007 flood and accordingly, the evidence
concerning it was
relevant only by way of background. As I understood the
position, it was adduced by the plaintiff in an
endeavour to indicate
the existence of an alleged duty on the municipality to have taken
pre-emptive steps to avoid a recurrence
of the flooding before the
2009 and 2011 events, which gave rise to the claims actually being
prosecuted in the action. Suffice
it to say that the apparently
exceptional nature of the December storm leaves me in considerable
doubt, in the context of the demonstrated
ability of the system to
handle the wet winters of 2007 and 2008, whether the defendant could
reasonably have been expected to
implement improvements to it.
I would need at the very least to be satisfied, in the context of the
evidence given by Mr
Simon, that the December 2007 flood, which, as I
have related, appears to have occurred after rainfall of exceptional
intensity,
had been caused by precipitation of an intensity less than
that which could be expected to give rise to a once in 50-years flood
event. There was no such evidence.
[28]
As it was, the
Municipality did engage the services of a consulting engineer to
investigate and report on drainage issues throughout
the whole urban
area of Piketberg. This was because periodic flooding is a
problem in a number of areas in the town.
The investigation was
in progress when the 2009 flood occurred. The consulting
engineer’s investigation has reportedly
resulted in the
production of a so-called ‘master-plan’ for the general
upgrading of the town’s drainage amenities.
The plaintiff
appears not to have identified the existence of the master plan in
the course of exacting discovery from the defendant
with the result
that there was no meaningful evidence as to its content.
According to the uncontroverted evidence led for
the Municipality,
however, the constraints on the defendant’s budget in any event
make it impossible for the Municipality
to implement all of the
provisions of the master plan - which would require the expenditure
of many millions of rand - other than
gradually.
[29]
The Municipality’s
officials who gave evidence pointed to the smallness of the
municipality and the effect of the burden of
the statutory duty on it
to provide running water and sewerage to all of its inhabitants.
They explained that capital expenditure
had to be ‘prioritised’
accordingly.
[11]
There is indeed a duty on all local authorities to provide basic
municipal services to everyone resident within their respective
jurisdictions, irrespective of whether they are ratepayers or
not.
[12]
The evidence in this respect called to mind the observations of
Schreiner JA in
Germiston
City Council v Chubb & Sons Lock And Safe Co (SA) (Pty) Ltd
1957 (1) SA 312 (A)
[13]
at 323C-E:
The second point,
which appears from the
African Realty
Trust
case [
[14]
]
at p. 179 and in
Reddy's
case [
[15]
]
at p. 299, quoting
Brink's
case,[
[16]
]
and which is most important for this case, is that in deciding what
measures are reasonably practicable regard must be had to
the total
requirements and resources of the local authority and not merely to
the means of providing protection to an individual
landowner. I
assume that in particular circumstances there may have to be a
special treatment by the local authority of the risks
to a particular
small area or even to a single stand in a township. In regard to
flooding for instance the risk might conceivably
be so grave and so
pressing that there might conceivably be a legal and not merely a
moral duty upon the municipality to give it
precedence over other
drainage problems. But apart from such a possibility the position of
any one plaintiff in regard to protection
against flooding owing to
roadmaking cannot be dealt with in isolation from the requirements of
the whole area and the resources
available to meet them.
(I
have already remarked, above, on the absence of any pleaded
allegations or evidence concerning the circumstances in which the
local authority approved the subdivision and whether the conditions
of subdivision included, or reasonably should have included,
requiring a financial contribution by the developer for the purposes
of infrastructural enhancement.)
[30]
The current case is a
so-called omission case; one in which the delict arises out of a
wrongful and negligent failure to have done
something, rather than
the case where the damage is caused by an act of commission by the
wrongdoer. In
City
of Cape Town v Bakkerud
2000 (3) SA 1049
(SCA), at para 31, the Supreme Court of Appeal
held, in the context of a case arising out of a local authority’s
omission
to maintain roads and pavements in good condition:
…
it would, I
think, be going too far to impose a legal duty upon all
municipalities to maintain a billiard table-like surface upon
all
pavements, free of any subsidences or other irregularities which
might cause an unwary pedestrian to stumble and possibly fall.
It
will be for a plaintiff to place before the court in any given case
sufficient evidence to enable it to conclude that a legal
duty to
repair or to warn should be held to have existed. It will also be for
a plaintiff to prove that the failure to repair or
to warn was
blameworthy (attributable to
culpa
).
It is so that some (but not all) of the factors relevant to the first
enquiry will also be relevant to the second enquiry (if
it be
reached), but that does not mean that they must be excluded from the
first enquiry. Having to discharge the
onus
of proving both the existence of the legal duty and blameworthiness
in failing to fulfil it will, I think, go a long way to prevent
the
opening of the floodgates to claims of this type of which
municipalities are so fearful
.
The principle
expressed in those remarks applies equally in the circumstances of
the current case, where the wrongfulness of the
defendant’s
conduct is alleged to have lain in its omission to have provided and
appropriately maintained a drainage system
that could have coped with
the floodwaters and thereby pre-empted the flooding of the
plaintiff’s property.
[31]
The remarks reflect a
recognition that courts must be cautious to avoid fixing local
authorities with duties in law on a blanket-rule
basis (i.e. ‘opening
the floodgates’ to liability) and that claims such as the
current one must be carefully adjudicated
with regard to their
peculiar facts. The Supreme Court of Appeal has emphasised that
municipalities should in practice be
protected from unrealistically
wide exposure to delictual liability in respect of omissions by
virtue of the burden on plaintiffs
in such cases ‘to discharge
the
onus
of proving both the existence of the legal duty and blameworthiness
in failing to fulfil it’. This highlights the extent
to
which plaintiffs bringing such claims are required to prepare their
cases with care to establish a proper evidential basis for
both the
existence of the alleged legal duty to have acted and of fault or
blameworthiness on the part of the municipality for
having failed to
do so. In determining whether the legal convictions of the
community – which, as explained in
Bakkerud
are not the same
thing as its moral convictions
[17]
– ought to require the defendant to have provided greater
drainage capacity involves the court in having to make an
ad
hoc
value
judgment.
[18]
It thus behoves a plaintiff who hopes to succeed in such a case to
provide the court with a sufficiently detailed and contextually
relevant factual basis to do so.
[32]
In the current case I
am willing to assume in the plaintiff’s favour that the legal
convictions of the community would hold
that the defendant ought to
have provided drainage in the developed area in which the plaintiff’s
property was situate with
an ability to deal with the so-called once
in 50-years flood. The evidence has not established that the
drainage provided
did not satisfy that requirement. The
evidence furthermore did not establish that in calculating the
postulated capacity,
the municipality should have made provision for
floodwaters pouring onto De Hoek Street from the surrounding farm
lands other than
in accordance with their natural flow. The
evidence in the current case suggests, as will be described
presently, that the
flood of water that emitted from the farmlands
was not the natural flow, and that it was instead due to human agency
on private
land combined with neglect and inadequate provision by a
different municipality. That points the finger of liability
rather
in those directions, rather than at the defendant.
[33]
The evidence as to the
2009 flood demonstrated that the flood waters that invaded the
plaintiff’s property ran mainly from
the neighbouring farm
land. The photographs taken by the plaintiff depict the muddy
water running off the smallholding of
his neighbour, one van Niekerk,
into De Hoek Road, along which it then bore down on the plaintiff’s
house. The agricultural
origins of the water were borne out by
the residue of kraal manure and the like that was deposited in and
around the plaintiff’s
house and yard when the waters
subsided. Indeed in a letter by the plaintiff’s attorney
to the Municipality, dated
18 February 2010, reference was made to
the damage to the plaintiff’s property having been caused ‘
ten
gevolg van stormwater, wat vanuit die kleinhoewe en De Hoekstraat sy
woonhuis letterlik oorstroom het
’.
[34]
That the flood water
had poured over the agricultural land was also borne out by the
emergency remedial measures that the plaintiff
and his father
implemented by digging a shallow furrow on the neighbouring farmer’s
land to divert the water from running
onto the road and lead it into
the lower lying area in the direction of the N7, to which the
drainage system off De Hoek Street
ordinarily took the street water
run-off. The plaintiff testified that he had also opened the
cover of a catch pit (referred
to by the plaintiff as a ‘gulley’)
on the side of De Hoek Street between the place where the flood water
was pouring
onto De Hoek Street and the corner with Buitenkant
Street. He did this to try to assist the drainage of the water
by facilitating
an increased flow into the depression. He said
that it had also been necessary to probe the 450 mm drain pipe
[19]
which took the water from the catch pit with rods to unblock it.
This was hardly surprising in my view having regard to the
amount of
mud that appears to have been carried with the flood waters into the
catch pit. The mud is graphically evident
in the photograph
taken by the plaintiff of the opened catch pit.
[20]
In the peculiar circumstances I do not consider the evidence that the
catch pit and the pipe draining it were silted up demonstrates
a lack
of proper maintenance by the Municipality. Photographs showing
the gate into catch pit in Buitenkant Street
[21]
cluttered with debris at the time of the flood must also be judged
with regard to the circumstances. It is not unlikely that
a
heavy flood of water from the adjoining farmlands would carry such
debris to the entrance to the catch pit. The question
is should
the defendant have provided for the flood that emanated from the
farmlands.
[35]
Mr Engelbrecht
testified that the path of erosion created by the water as it rushed
over the agricultural lands showed that the
flood had originated from
a farm which he said belonged to ‘the NG Kerk’ high up on
the slopes of the mountain.
He said that the cultivated land on
the NG Kerk’s property had not been properly contoured, which
had resulted in a concentration
of water that had breached a berm or
suchlike barrier at the lower part of the farm and resulted in the
water rushing down the
slope over the lower agricultural land.
As I understood his evidence, it was to the effect that the resultant
force of the
accumulated water was that the run-off took a different
path to that which it ordinarily would have done in accordance with
the
lie of the land and, instead of running down into the ditches
alongside the entrance road (apparently an extension of Long
Street
[22]
)
to the town off the N7 national road (which was outside the
defendant’s jurisdiction and within the area of the adjoining
West Coast District Municipality), it carved a line down to the place
at which it emerged onto De Hoek Street, as depicted in the
photographs taken by the plaintiff.
[23]
Matters were not assisted, apparently, by the fact that the ditches
alongside the provincial road that joined the N7 to the
town were of
inadequate capacity and had not been kept clear. These ditches
would have channelled away any water that followed
the natural run
off route from the high lying wheat fields in the area of the source
of the problem. The uncontroverted evidence
was to the effect
that the capacity of the ditches under the jurisdiction of the
District Municipality has since been increased
and measures have been
implemented to keep them clear.
[36]
It would have been
helpful had there been, as there often is in cases of this nature,
some detailed evidence concerning the contours
and fall of the land
in the vicinity. So, if the adjoining farm land had sloped down
onto De Hoek Street one might have expected
the defendant to make
provision for this when providing a drainage system for the adjoining
developed areas, for it would seem
likely, if that were the
situation, that the construction and paving of De Hoek Street would
in such a situation have had the effect
of diverting and
concentrating the natural flow of water towards erven in the vicinity
of the plaintiff’s property.
Unfortunately, there was no
such evidence. All that there was to go by is the impression
given by the photographs in exhibit
B. The general impression
from the aerial photographs is that the agricultural land slopes away
from the town in the direction
of the N7, which can be seen running
horizontally across the top of exhibit B103 - in the form in which
that document was bound
into the exhibit bundle (with the caption
running vertically from the bottom to the top of the right hand side
of the page).
The paths of what appear to be two streams can be
discerned running down the mountain slopes and across the land before
converging
and running under the N7. This suggests that the
water from the surrounding lands would drain towards the streams in
the
ordinary course; that is away from the town and towards the N7.
The drain from the catch pit in De Hoek Street also runs towards
the
N7, which suggests that in that area too the natural slope of the
land is away from the developed area and towards the N7.
Indeed, the emergency channel dug by the plaintiff and his father
also followed that direction, no doubt to capitalise on the slope
of
the land.
[37]
The plaintiff’s
evidence suggested that the characteristics of the flood in 2011 were
essentially the same as that of 2009.
His evidence in this
respect was supported by that of Mr Jacob Johannes Breunisen,
the defendant’s manager: technical
services. Breunisen
had not been involved in the 2007 and 2009 floods. He did,
however, attend the scene at the time
of the 2011 flood.
Breunisen’s evidence was that the 2011 flooding had been the
result of a flash flood caused by water
running off the mountain from
the same area as had happened in 2009. He said that the amount
of run-off in heavy rainfall
on that occasion had been greater than
would ordinarily have been the case because the mountainside had been
denuded of vegetation
in a veld fire. The vegetation would have
lessened the force of the downward flow of the run-off water.
[38]
Breunisen also
testified that the run-off water in 2011 had flowed into De Hoek
Street only because of extraneous factors that had
diverted it from
the route it would ordinarily have taken. Breunisen referred in
this respect to what he termed ‘incorrectly
cut’ contours
on the farmlands on the mountain slope and the inadequacy of a
barrier –which he indicated, marked ‘B’,
on
the aerial photograph, exhibit B103 – on the lower side of the
extension to Long Street which linked the town to the N7
national
road. As already mentioned, the extension road and its
appurtenances fell under the jurisdiction of a different
local
authority. The purpose of the barrier would appear to have been to
divert any flow of water down the mountain that went beyond
the
extension road into the ditches that run alongside that road to drain
water off in the direction of the N7. Breunisen
indicated by
way of the arrows endorsed on exhibit B103 how, having breached the
aforementioned barrier, the water proceeded through
the property of
Van Niekerk, mentioned earlier, and into De Hoek Street at the same
place as it had done in 2009.
[39]
Having noted how the
flood waters had rounded the bend at the bottom of De Hoek and pushed
up into the lower reach of Buitenkant
Street from where they were
able to pour into the plaintiff’s property, especially down the
paved driveway, which was entered
via a lowered section in the street
side kerbing, Breunisen arranged for the defendant to put in place
certain ameliorating measures.
These measures comprised
converting the single catch pit into a double catch pit
[24]
and constructing a brick and concrete chute at the junction of De
Hoek and Buitenkant Streets, which appear to have been designed
to
catch and divert water running down De Hoek Street that overshot the
double catch pit.
[25]
Breunisen also had a small ramp built up at the entrance to the
plaintiff’s driveway to lessen the vulnerability of
the
property to inward flow down the driveway.
[26]
The plaintiff testified that he had been informed upon enquiry when
the aforementioned work was being done that the cost
thereof ran to
approximately seven or eight thousand rand. Breunisen explained
that the work had been financed out of the
portion of the defendant’s
operating budget that was under his administration and thus had not
required a capital allocation.
He described the measures that
he had arranged to be put in place as a ‘soft solution’
and made it clear that he would
be hesitant to claim that it would be
sufficient to avert the flooding of the plaintiff’s property in
the circumstances of
the 2009 and 2011 floods. He pointed out
that, amongst other considerations, the chute would in those
circumstances be vulnerable
to becoming blocked in the same way that
the catch-pit had been. That the plaintiff’s property is
considered by the
defendant to remain vulnerable to flooding
notwithstanding the measures put in place by Breunisen is borne out
by the fact that
it is treated as one of the flooding ‘hot
spots’ at which the defendant provides temporary sandbag
protection whenever
significant precipitation has been forecast by
the weather services.
[27]
[40]
Breunisen testified
that the West Coast District Municipality had made relevant
improvements along the extension road since 2011
and that there had
not been a recurrence of the circumstances of the 2011 flood.
He accordingly resisted the inference suggested
by the plaintiff’s
counsel that the simple and cheap improvements he had effected in
2011 explained why the plaintiff’s
property had not again been
flooded in the ensuing four years up to the date of the trial.
He stated that in those circumstances
the effectiveness of the
improvements had ‘not been tested’. The plaintiff’s
counsel submitted that if
the chute constructed by the defendant
after the 2011 flood had been built after the 2009 flood the damage
to the plaintiff’s
property would, at the very least, have been
lessened. At first blush the argument might appear attractive,
but it does not
bear scrutiny in the context of the evidence, or
rather, lack thereof in the particular case.
[41]
It may be accepted that
the damage to the plaintiff’s property occurred as a
consequence of the inability of the catch pit
and drainage pipe at
the bottom end of De Hoek Street to divert the volume of water
streaming onto De Hoek Street. The water
that was not drained
into the catch pit would be that which would be pushed around the
corner at the bottom on De Hoek Street and
into the plaintiff’s
driveway off Buitenkant Street. To ascertain whether the chute
would have made any difference
to the extent of the damage to the
plaintiff’s property one would need evidence of the maximum
capacity measured in units
– say cubic feet of water per minute
(‘cusecs’) – of the catch pit, an informed
estimate, measured in the
same units, of the volume of water bearing
down De Hoek Street,
[28]
and also evidence of the maximum capacity of the chute to divert
water that could not be accommodated by the catch pit. Such
evidence would establish whether the amount of water that the
combined drainage facility of the catch pit and the chute could not
accommodate was materially less than that which in fact probably
poured past the catch pit and round the bend into the plaintiff’s
property.
[42]
When I put these
considerations to the plaintiff’s counsel during argument, he
submitted that it was for the defendant to
have adduced such
evidence. His submission in that regard appeared to be
predicated on an assumption that the evidence that
had been led
established what he called ‘a
prima
facie
case’
against the defendant. It is indeed so that if a plaintiff who
bears the onus establishes a
prima
facie
case, an
evidential burden falls on the defendant to lead evidence to rebut
it, failing which the
prima
facie
case will be
sufficient to establish the claim. The mere fact that the
drainage system was unable to cope with the flood
in question and
that the plaintiff’s property was damaged as a result does not,
however, as I have sought to explain, amount,
without more, to a
prima facie
case. Nor does the defendant’s construction of the chute
and its putting in place the related measures described earlier,
without more, establish that the defendant could by relatively cheap
means have done something that would have effectively averted
the
harm.
[43]
The plaintiff’s
counsel also cited LAWSA, Second Edition, vol.9, at para 839 and 843
in support of his argument in this respect.
Paragraph 843
contains the following passage:
When a party has peculiar
knowledge of a fact he or she is not for that reason saddled with the
burden of proving that fact; peculiar
knowledge affects the quantum
of the evidence expected from the party but does not affect the
incidence of the burden of proof.
If such party fails to adduce
evidence, in other words, to transmit his or her knowledge to the
court, the inference which is the
least favourable to the party’s
cause may be drawn from the proven facts.
In my
judgment, the considerations mentioned earlier concerning the
capacity of the catch pit and the chute, as well as the calculation
of an educated estimate of the volume of water probably issuing onto
the road from the farmland and that running down from the
higher
reaches of De Hoek Street, are matters upon which any appropriately
qualified expert should be able to pronounce and support
with the
necessary calculations. The law reports contain examples of
other cases in which such empirical evidence has been
tendered.
[29]
Having regard to the onus on the plaintiff to establish all of the
elements of the Aquilian action, including causation,
I consider that
it was incumbent on the plaintiff to have adduced the evidence that I
have postulated. It was not of a character
that it could be
said to have been peculiarly within the knowledge of the defendant.
[44]
For the reasons
traversed in the aforegoing discussion of the case, and
notwithstanding the sympathy I have for the plaintiff and
his family
for the trauma and financial loss that they have experienced as a
result of the successive flooding of their home, I
consider that the
plaintiff has fallen short of discharging the onus to establish the
existence of the alleged duty in law on the
part of the defendant or
its negligent breach. In the circumstances the appropriate
order would be one absolving the defendant
from the instance with
costs.
[45]
The following order is
made:
1.
Subject to the
provisions of paragraph 2, below, the defendant is absolved from the
instance with costs.
2.
The defendant is
ordered to pay the plaintiff’s costs occasioned by its special
plea of non-compliance with the requirements
of s 3 of the
Institution of Legal Proceedings against certain Organs of State Act
40 of 2002 and in the associated application
for condonation.
A.G. BINNS-WARD
Judge
of the High Court
[1]
The plaintiff had actually disposed of the property after the close
of pleadings.
[2]
Section 4(1)(b) provides:
A notice must be
served on an organ of state by delivering it by hand or by sending
it by certified mail or, subject to subsection
(2), by sending it by
electronic mail or by transmitting it by facsimile, in the case
where the organ of state is-
(b) a municipality, to the municipal manager
appointed in terms of section 82 of the Local Government: Municipal
Structures Act,
1998 (Act 117 of 1998);
(c)
….
[3]
See
s 17
of the
Prescription Act 68 of 1969
.
[4]
There are other indications in the Act that
indicate there is nothing exceptionable about such applications
being made after the
institution of proceedings to obtain
satisfaction of the claim; see, for example the definition of
‘creditor’, quoted
in note 6, below.
[5]
The defendant’s failure to respond to, or
even acknowledge, the plaintiff’s attorney’s letter of
18 February
2010 was unexplained, and falls deplorably short of what
members of the public are entitled to expect from the public
administration;
cf. s 195 of the Constitution.
[6]
In terms of s 1 of the Act:‘“
creditor
”
means a person who intends to institute legal proceedings against an
organ of state for the recovery of a debt or who
has instituted such
proceedings, and includes such person's tutor or curator if such
person is a minor or mentally ill or under
curatorship, as the case
may be
’.
[7]
See s 27(1) read with s 42(1) of the Ordinance.
[8]
See s 42(2) of the Ordinance.
[9]
The defendant objected to the production of the
rainfall records (which also included records compiled by Boland
Agri) tendered
in evidence by the plaintiff. The plaintiff’s
counsel then applied from the bar for their admission in terms of
s 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
.
I granted that application. It appeared to me that, having
regard to their apparent source, the records had probably
been
compiled in the ordinary course by an agricultural organisation that
would have every reason to keep an accurate record
of, and no reason
to misrepresent, the information. It also appeared to me to be
quite likely that if direct evidence were
to be insisted upon a
number of witnesses would need to be called. There was no
indication that the defendant would have
any basis to challenge the
evidence of such witnesses. I would be surprised if the
defendant did not itself maintain or
have ready access to rainfall
figures and therefore considered that if so minded the defendant
would be in a position to adduce
rebutting evidence if the records
tendered by the plaintiff were obviously inaccurate in any relevant
respect. My impression
was borne out by the subsequent
testimony by the witnesses called by the defendant that the
Municipality’s planning took
into account recurrence intervals
of weather events. It obviously could not do this without
keeping or having ready reference
to meteorological records. I
was thus satisfied that the admission of the evidence was in the
interests of justice.
[10]
The defendant’s witness, Mr Engelbrecht, testified that
20-25mm had fallen within the space of an hour. The summary
of
the opinion evidence of Mr Simon, who was called by the plaintiff
stated that the recorded rainfall on 24 December 2007 (presumably
referring to a 24-hour period) was 36mm. The sources from
which these measurements were obtained were not identified in
the
evidence. Mr Engelbrecht’s testimony in this respect was
not attacked in cross-examination.
[11]
Municipal councils are required by statute to adopt a capital and an
operating budget annually; see
s 17(2)
of the
Local Government:
Municipal Finance Management Act 56 of 2003
.
[12]
See, for example s 73 of the Local
Government: Municipal Services Act 32 of 2000, read with the
definitions of ‘
basic municipal
services
’ and ‘
local
community
’ in s 1 of the
Act.
[13]
Germiston City Council v Chubb & Sons Lock
And Safe
also concerned a claim
against a local authority arising out of a flooding incident.
[14]
Johannesburg Municipality v African Realty
Trust Ltd.
, 1927 AD 163.
[15]
Reddy and Others v Durban Corporation
1939
AD 293.
[16]
Breede Rivier (Robertson) Irrigation Board v
Brink
1936 AD 359.
[17]
Bakkerud
supra, at para 14-17
[18]
Bakkerud
supra, at para 27.
[19]
I have used the drain pipe dimension given in the rule 36(9) summary
of the evidence of Mr Wernher Simon.
[20]
See the photograph at exhibit B28, and note the
heavily muddy character of the flood water apparent in several of
the other photographs.
[21]
See photograph B 39. It is not clear in any event, what, if
any, role the catch pit in Buitenkant Street played in the
flooding. Certainly, the actions of the plaintiff and his
father at the time in seeking to alleviate the effects of the
flood
were directed at the catch pit in De Hoek Street.
[22]
See photograph B100, on which some street names are endorsed, and
the aerial photograph at B103.
[23]
See photographs
[24]
See the photographs at exhibit B85-87.
[25]
The appearance and position of the chute are depicted in the
photographs at exhibit B84, 88 and 89.
[26]
The ramp and associated channel are depicted in the photographs at
exhibit B73, 74 and 79.
[27]
The sandbagging protection is illustrated in the photograph at
exhibit B84.
[28]
Compare
New Heriot Gold Mining Company Limited v Union Government
(Minister of Railways and Harbours)
1916 AD 415
, in which it
appears from the judgment on appeal that it was possible to adduce
technical evidence of this nature even 100 years
ago.
[29]
See Note 28. Other examples are to be found in
Germiston City
Council v Chubb & Sons Lock and Safe Co (SA) (Pty) Ltd
supra, at 318H-319A, in the quotation of the description of evidence
in the judgment of the court a quo in
Administrator, Natal v
Stanley Motors Ltd and Others
1960 (1) SA 690
(A), at 693E-F,
and in
Johannesburg City Council v Television & Electrical
Distributors (Pty) Ltd and Another
1997 (1) SA 157
(A), at
163E-H.