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[2017] ZAGPJHC 215
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Lane and Others v Emfuleni Municipality (2011/40551) [2017] ZAGPJHC 215 (19 July 2017)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2011/40551
Not
reportable
Not
of interest to other judges
Revised.
19/7/2017
In
the matter between
ALLAN
ROGER
LANE
FIRST
PLAINTIFF
SUSAN
CLAIRE
LANE
SECOND
PLAINTIFF
VALERIE
ANN
HARBOT
THIRD
PLAINTIFF
And
EMFULENI
MUNICIPALITY
DEFENDANT
JUDGMENT
SIWENDU
J
:
INTRODUCTION
[1]
This case concerns the probable cause of inexplicable flooding of
water which led to the damage of a dwelling erected on the

plaintiffs’ property. The plaintiffs are joint owners of an
undivided one-third share of the property fully described as
Portion
[…], Registration Division IQ, colloquially known as […]
or stand […]
[1]
(“the
property”). The property is located on the waterfront of the
Vaal River (“the river”) and runs from
[…] Avenue
at the top to the river at the bottom.  Until 2008, the property
had a residential dwelling located approximately
30 meters from the
river (“the old dwelling”). The plaintiffs inherited the
property from the second plaintiff’s
father. The property is
used as a family holiday home and the family have enjoyed the use of
the property for over 50 years.
[2]
In November 2011, the plaintiffs instituted an action against the
defendant arising out of damage to the old dwelling.
They
allege that following tarring of the roads, the defendant had
negligently and/or, wrongfully designed and constructed an inadequate

storm water drainage system at the corner of I. Road and P. Avenue
which caused flooding on the property.
[3]
The plaintiffs allege that:
[3.1]
The design of the storm water drainage system was ineffective and
inefficient. It failed to disperse accumulated water without
causing
damage or disperse the accumulated stormwater and run water off
efficiently without causing damage to the plaintiffs’
property
and neighbouring properties;
[3.2]
The defendant failed to exercise reasonable care in its construction
of the drainage system as was expected of the defendant
in accordance
with its obligations in terms of the Municipal Structures Act 58 of
1999;
[3.3]
With proper research, use of contour maps and investigation of the
nature of the soil, the defendant ought to have seen that
there was a
clay embankment underneath the soil of stands 63, which limited
absorption of water and diverted water from the storm
water drain
flowing to the river; and
[3.4]
As there was a high water table, more water was added causing it to
pull upward underneath the property.
[4]
The defendant disputes liability on the grounds that the claim has
prescribed.   In addition, it alleges that the
plaintiffs
failed to give it timeous notice of the claim as required by Section
3(1) of the Institution of Legal Proceedings Against
Certain Organs
of State Act 40 of 2002 (“ILPACOS”).  The defendants
submit that the plaintiffs:
[4.1]
Gained knowledge which indicated for the first time that the
defendant could be blamed for the problem as early as March 2010;
and
[4.2]
They had acquired reasonable constructive knowledge at that stage of
the problem, and, the claim against the defendant the
moment the
plaintiffs decided to demolish the old dwelling in 2008; and yet, the
Notice was given some 60 months later in August
2011.
[5]
In addition to the procedural grounds in paragraphs 4.1 and 4.2
above, the defendant disputes that it acted negligently and/
or
wrongfully; and:
[5.1]
disputes the drainage system was inadequate for the conditions for
which it was installed or that it was installed negligently.
[5.2]
The defendant maintains that the source of the water seepage had not
been established and that the source of the water which
damaged the
property could have been from a variety of factors other than from
the rain.
BACKGROUND
AND COMMON CAUSE FACTS
[6]
The property
[2]
falls within the
jurisdiction of the Municipality, the defendant. The geotechnical map
and layout plan depicts
[3]
that
S. Road and I. Road lead to P. Avenue (“the roads”). The
roads slope on a gradient with a moderate slope towards
the river
[4]
.
The corner of P. Ave and I. Road is the lowest point for the deposit
of water and the gradient from thereon slopes down towards
the river.
The river, which flows from the left to the right in relation to the
property is located at the lowest point relative
to the roads.
[7]
From the entrance of P. Avenue, the property mirrors the same
gradient but flattens near the Vaal River where the old dwelling
was
located.  The property is surrounded by stands 58, 60 and 63.
Stand 63 is owned by Mr Alan Green (“the Green

property”).
[8]
Prior to 2006, the roads were made of gravel and were constructed
with grader using
in
situ
gravel material on top of the natural ground.  There was no
official drainage system.  P. Avenue was shaped into a
camber
[5]
with v-
drains
[6]
cut on the sides of
the road.  The camber enabled the water to run-off quickly.
Rainwater from the higher end of the roads
would collect and drain at
the corner being the lower point flattening out onto the Green
property draining past the precast concrete
wall towards the
river
[7]
.
[9]
The roads were subsequently surfaced
[8]
by the defendant following complaints by residents in a project in
which some of the residents including the plaintiffs financially

contributed.  The appointment of the contractor was undertaken
by the defendant through its legal department. Construction
was
completed in 2007. All construction projects of public roads are
council projects even though there was a co-funding arrangement
with
residents.
[10]
As part of the project, a stormwater drain (“the initial
stormwater”), approximately 450mm in diameter, was installed
at
the corner of I. and P. Avenue. The stormwater drain daylighted
[9]
on the Green property at the top of the property. At the point where
the storm-water drain daylighted, a channel was constructed
to
discharge surface water flow onto the Green property. To this extent,
the storm water drain did not discharge and/or deposit
water directly
to the river but onto the Green property. The defendant had a
servitude over the portion of the property on which
water discharged.
[11]
Water was observed by the plaintiffs seeping from the boundary fence
of stand 63 to the right of the property on the river
side of the
property from the latter part of 2006 until 2007. The water gradually
started to move upward towards the old dwelling.
[12]
During the latter part of 2007 between September or October, water
overspilled the edges of the channel created after heavy
rains. A
dispute ensued between the defendant and Mr Green because the water
flooding affected Mr Green’s Septic Tank. Undesirables
were
found on Mr Green’s lawn, and  Mr Green blocked off the
drainage system as a result.
[10]
[13]
In December 2008, the plaintiffs demolished the old dwelling. They
alleged that the decision to demolish the old dwelling was
because of
damage caused by consistent flooding and seepage of water which
rendered the old dwelling inhabitable and dangerous
to live in.
Following the demolition, and as replacement, two separate dwellings
were built on stilts on the upper section of the
property.
[14]
In 2010, another storm water drain of approximately 1500mm/1.5m in
diameter together with 3 catchment areas was built by the
defendant
on the southern side of the P. Avenue (“the second storm water
drain”). The storm water discharged water
directly to the
river. Joint Minutes show that all the experts are in agreement on
the geological formations in the area which
included sandstone, shale
and coal Vryheid formations, amongst others. They agreed that there
is a sandy soil dyke even though
its extent and exact location could
not be determined in relation to the other properties. Sandy material
was intercepted when
auger holes were drilled.
PROCEDURAL
MATTERS
[15]
Three procedural issues which required determination prior to hearing
of evidence were raised at the commencement of the proceedings;

namely:
[15.1]
The parties requested that I should determine the merits of the claim
separately from the quantum of damages. Accordingly,
the matter
proceeded on merits only;
[15.2]
Secondly, the plaintiff and the defendant moved an application to
conduct an Inspection in Loco. I ruled that a determination
of this
application would be made once all expert evidence has been heard.
Following the evidence, I ruled that I had been sufficiently
assisted
by the experts, and accordingly, refused the application; and
[15.3]
The third issue related to the determination of the defence of
prescription raised in terms of the
Prescription Act 68 of 1969
, as
well as a decision on the application for condonation for the failure
to give notice of legal proceedings required in terms
of ILPACOS. The
plaintiff submitted that in view of the complex facts and the
technical nature of the evidence required, it was
not easy to
determine the cause of the damming of the water on the property
and/or when the plaintiffs acquired knowledge of their
cause of
action and/or claim against the defendant.
[16]
After hearing submissions by both parties, I determined that the
question of the plaintiffs’ knowledge of when the claim
arose
was inextricably linked with the factual and expert evidence to be
led.  There will be no prejudice to any of the parties,
and, the
interest of justice would best be served by hearing the evidence
prior to determining the issue.  In the circumstances,
I
determined that the decision be held over to the end of the trial so
that I be acquainted with the subject matter of the dispute
and
merits of the claim. Accordingly, I ruled that both these questions
be held over to the end of the trial.
PLAINTIFFS
EVIDENCE
[17]
The plaintiffs called three witnesses:, Mrs Lane, the second
plaintiff who testified on behalf of all the plaintiffs as well
as
two expert witnesses, Dr Ofer and Mr Tobias respectively.
[18]
Mrs Lane testified that, until 2006, there had never been flooding on
the property other than an incident in 1976. The Rand
Water Board
erroneously shut the barrage gates of the Golden Dam, leading to
river breaching its banks. However, water had drained
within the week
once the gates were opened.
[19]
In 2005/6, residents formed a Residents Roads Committee in a project
to tar the roads to address complaints and enhance the
value of the
real estate. The plaintiffs, together with other residents,
contributed towards the construction project jointly
[11]
with the defendant. The Residents Roads Committee dealt with the
defendant as a result, she was not involved in the details of
the
plans and/or diagrams. She had no knowledge of who was responsible
for the design of the storm water drain.
[20]
After the completion of the construction of the roads in 2007, when
standing in front of the old dwelling facing the river,
they noticed
water seeping from the right-hand side along the fence (being the
section on the side of stand 58). Each weekend when
they went to the
property, water would have moved by approximately half a meter. At
the time, they did not know the cause or source
of the water.
[21]
The river flows from left to right while the water creep was flowing
from the right to the left (which is the opposite direction
of the
water seepage). However, once the water reached the boat houses, it
curved and moved towards the old dwelling and started
receding
towards the house in a steady slow creep which was not on a straight
line.
[22]
At first, there was damp on the old dwelling. The damp extended to
the roof and later caused the floors to separate.
Eventually,
there was flooding of the surface of the dwelling until they were
ankle deep in water.
[12]
After
a particularly bad storm they felt bombarded by water from the front
and the back of the old dwelling. Household furniture
had to be
placed on pallets to avoid water.
[23]
It was dangerous to live in and began to smell. Her sister-in-law,
who was in her eighties, had developed bad asthma.  They
could
not ascertain the cause and source of the water. At the time, there
was speculation that it may be due to the rain or that
the reeds were
causing the rising water levels.  On or about 31 October 2008,
as joint owners of the property, they had written
to Mutual and
Federal
[13]
. Mutual and
Federal merely noted their letter and had instead attributed it to
wear and tear. The plaintiffs referred Mutual and
Federal to the
Insurance Ombudsman. Their case was closed unresolved by the
Ombudsman
[14]
. A decision to
demolish the dwelling was taken in 2008 and the old dwelling was
demolished in 2009
.
The
plaintiffs had built two houses on the upper end of the property on
stilts.
[24]
An inquiry by their neighbour, Mr Rippen, the owner of stand 60, in
2008 who was at first holding the plaintiffs responsible
for the
water flowing onto his property led to further speculation about the
cause.  There had been a rich smell of mud which
was initially
thought to emanate from the French Drains.  After an inspection,
speculation was that the reeds were the cause
of the water from the
river to rise. Trees had to be removed as they had died from
overexposure to water
[15]
.
There was further speculation that the duck pond on Mr Green’s
property was the cause. The plaintiffs had also discussed
the matter
with a representative from the Rand Water Board who was of the view
that the water was attributable to a higher than
usual water table.
[25]
The plaintiffs had employed a contractor to install underground
piping with a large submersible pump.  Water subsided
for a
while but did not alleviate it.  They built channels where the
water was running from the back of the house to get water
out of the
new homes
[16]
.
[26]
Mrs Lane testified that from about December 2009, it transpired that
there was a conversation amongst residents about a residential

security project that she had not been aware of.  On or about 18
January 2010, she was copied to email correspondence pertaining
to
the security project. Mrs Lane, who had been quite meticulous in
keeping correspondence, had documented this correspondence
[17]
and exchange in emails included in the bundles
[18]
before the court.
[27]
She testified that it was only in January 2010 during the course of
these exchanges that they became aware that water which
led to the
demolition of their old dwelling had affected other residents. She
had ascertained this from correspondence between
Mr Green, Mr Ernie
Strydom of Emfuleni Municipality and Mr Storm, the owner of plot 99.
She had not been privy to the initial communication.
The following
timeline of event is apparent from her evidence and the emails:
[27.1]
It transpires that on or about 5 January 2010, Mr Storm had
complained about damage to his property because of the
closure of the
water channel by Mr Greene due to a lack of maintenance of the
servitude by the defendant.
[27.2]
On or about 11 January 2010 Mr Strydom of Emfuleni responded to this
email advising that a tender for the appointment
of a contractor was
still pending as the prior tender had been rejected and had to be
re-advertised.
[27.3]
On 18 January 2010, Mrs Lane sent an email in which she mentioned
that it is the first time that she has been made
aware that the water
flooding may be caused by the new road. She also advised that she too
was affected by the water problem in
addition to the owners of plot
58. She gave a description of the problem as testified, including the
initial speculation of the
water being attributed to the underground
river.
[27.4]
On 5 February 2010, Mr Storm advised Mrs Lane that the defendant
would be constructing a new pipe which would go down to
the river and
that it would take approximately three weeks for a contractor to be
on site as the tender had been approved.
[27.5]
She became privy to a letter dated 5 February 2010 from Attorneys
Strauss Scher who were instructed to act on behalf
of the owners of
plot 63.  On 8 February 2010, she attempted to instruct Strauss
Scher to act on her behalf. They declined
the mandate and directed
the plaintiffs to the Johannesburg Attorneys Association. The
association took time to make recommendations
get to the plaintiffs.
[27.6]
It was only on 24 August 2011, that attorneys Eugene Marais furnished
the requisite notice in term of ILPACOS to the
defendant.
[27.7]
On 23 September 2011, the plaintiffs received a letter from Lion of
Africa denying liability on account that the notice instituting
legal
proceedings had not been sent timeously.
[28]
Mrs Lane testified that in January 2011, they were furnished with the
report from SRK Consulting Engineering. Two issues in
the report
caught her eye. The report mentioned rainwater in the sump with
particular chemical composition inside. In addition,
it mentioned the
adequacy of the storm water drain. It was until the commencement of
the proceedings and after the engagement of
various experts that she
realised that the problem of the water is related to the road but
until then, she did not know how it
was related. The meeting with
Advocates briefed to assist the plaintiffs had been pushed to March
2011. Even though they had decided
to proceed with the action in May
2011, it was decided to compute damages before proceeding.
[29]
After the construction of the new drainage system was completed in
2010, water ponding between I. Road and P. Avenue receded.
Water
stopped running from the back of P. Ave. They could barely use the
property before the new pipes were installed. Even though
part of the
front of the property was still wet, it is not saturated. Slowly over
the years, the back of the property as well as
the middle to the
front dried out. They built a gazebo with a brick floor where the old
dwelling was located and it remains dry.
The portion that is damp 3
meters from the river edge. Her evidence was that the property seems
to be drying.
[30]
She testified that it was only once they saw improvement toward the
latter part of 2010, they could develop a link between
the drainage
on the tar road and the water. When they consulted with attorney
Eugene Maree and Stevens, it was a difficult situation
to explain.
They were advised to get experts. At that stage, she did not know how
the tarred road and the storm water drainage
were linked.  The
process of appointing experts commenced late in 2010 starting with
surveyors in August 2010 and SKR Consulting
in September 2010.
[31]
The plaintiff testified that it took them some months to digest the
SRK Consultants after they tabled it and to consult with
SRK and the
attorneys on the contents.  Action proceedings were finally
commenced in November 2011
[32]
During cross-examination, two possible sources of the water flooding,
based on the SRK Report, were put to Mrs Lane, namely,
that water
found on the sump where the old dwelling was located, and, rainwater
coming from the back of the property
.
Her
evidence was that rain water from the sump did not surprise her due
to the amount of water that had come from P. Avenue.
She
confirmed under cross-examination that the decision to demolish the
old dwelling was based on two considerations, the
health of her
sister in law as well as the fact that the property became dangerous
to live in.  Construction of the new dwellings
commenced in the
middle of 2007.
[33]
Even though she submitted the application for demolition of the
property, she could not confirm whether she advised the defendant

that the dwelling had become structurally unsound. It was put to her
that once the view that the old dwelling was structurally
unsound was
formed, they had a duty to inform the local authority. She testified
that she did not know that there was any law requiring
notification
except to put an application to demolish the property. She testified
that she would have stated the reasons for demolishing
if this was
sought on the application form. The plans submitted for approval
which included the building of a Lapa on the same
area where the old
dwelling was located even though it had been unsafe and unstable were
put to her. The Lapa had not been built
at that time but at different
stages.
[34]
The plaintiffs were criticised for not involving architects to
investigate prior to the demolition thus depriving the defendant
the
opportunity to inspect the property. Mrs Lane testified that up until
the demolition of the old dwelling and part of 2010,
they had been
dealing with their insurers and not the municipality. The decision to
demolish occurred before they knew they had
a potential claim against
the defendant. When they were flooded by water, she did not believe
they needed experts at the time.
She had tried to mitigate and obtain
information from the insurance and the water board as referred to in
email trails.
[35]
It was put to Mrs Lane that all parties concerned had budget
constraints and operated within those constraints. She testified
that
she had not been aware of this including earlier decisions about the
location of the drainage system. The finding by Mr Trotsky
that there
are still elevated water levels was put to her. In her view, this
depended on the weather or rain
.
[36]
Dr Zvi Ofer, a qualified Geotechnical Engineer, with a BSc (Eng), a
MSc (Eng) obtained from Tefion University, Israel in 1965
and 1969
respectively as well as a PhD from the University of Witwatersrand,
who specialises in geotechnical, soil water structure
interaction,
ground water and civil engineering building structures was called to
testify as an expert. He was briefed to formulate
an opinion on what
caused the flooding on the plaintiffs’ property. He had
prepared the report dated 20 November 2013
[19]
His investigation was conducted three years after the construction of
the second storm water drain.
[37]
He testified that on his visit to the site, he observed a culvert
with a 450mm
[20]
pipe at the
corner of P. and I. Road. The drain channel was installed on the
southwestern side, being the downhill side when it
should have been
on the uphill side with intercepting channels. Other than the culvert
on P. and I., no other culverts were evident.
[38]
In his opinion, the introduction of the impermeable surfacing/
tarring on the roads increased the water surface flow. While
he would
not have observed the effects of the old and the new pipe in view of
the time lapse, having regards to the geological
map,
[21]
and the volume of water that would flow down I. Road since the
tarring, part of the water would seep into the soil as groundwater

over time, and part of it would be surface flow.  He postulated
that if the map of the area was utilised to assess the effects
of
storm water discharged over time and a rain storm of 10mm was assumed
over the area of 600 000 meters, then the net amount of
rain that
would flow into I. Road and P. Avenue would be approximately 6000
cubic meters
.
This
was the equivalent of 100 swimming pools of average size and a
considerable volume of water draining into the area.
[39]
Considering the gradient of the fall, the 450mm diameter culvert was
inadequate for the area. It should have deposited the
water to the
river.
[40]
In order to determine the cause of the flooding, Dr Ofer testified
that he had dug 3 small diameter auger holes and five 5
trial holes
on various sections of the property. At the top, he found that at a
2.5m depth, the soil on the northwest boundary
section along P.
Avenue was slightly moist, with yellow, loose to medium silty fine
permeable grain sand. It was damp at the base
but no water table was
evident even after the holes were made to stand for approximately two
hours.
[41]
In another trial hole
[22]
he
dug in the middle of where the old dwelling was located, he found
clay, silty sandy soil unlike the clean sand found in the
other three
holes dug at the top of the property. However, at the depth of (1.5m/
1.7m) below ground level, strong water percolation
was observed at
the bottom of the hole. Within a few minutes, the side of the wall of
the hole collapsed at the bottom because
of the flow of water. The
direction of the flow of water which came from the southeast,
indicated that the soil did not have sufficient
cohesion to hold
itself.
[42]
On excavating this hole, he found topsoil underlain by wet changing
grey loose silty clay sand, alluvium
[23]
and hillwash
[24]
. His opinion
was that the alluvium could have been attributable to the 1976
flooding of the river.
[43]
He excavated another hole near the southwest end of the brick
boundary wall
[25]
between
stand 58 and 59 to the northwest near the area where Mrs Lane had
first noticed water coming from the neighbour’s
property. There
were reeds consistent with existence of shallow ground water. He
found ground water at 0.4m below the surface.
The soil was of clay
silty sand in nature. There was a lot of organic material made of
decomposed plants, vegetation and leaves.
He associated this with
abundance of rubble. He was informed that this was due to a hole dug
to dump rubble to create a subsurface
drain (French drain) which was
done without using bidden
[26]
.
[44]
He had noticed a distinct sign of surface water along the boundary
brick wall between stand 58 and 59 and variations in the
levels of
ground water on the property. He testified that the above
investigations were conducted after the correction by the
municipality and at the end of dry season and the beginning of the
wet season.
[45]
In addition to the above investigation, Dr Ofer had also made
observations and compiled a report with regards to the soil profile

of the area and the property using the Geological Map compiled by the
Council for the GeoScience
[27]
to offer an opinion on how the water could have traversed from stand
63 to the property of the plaintiffs’. A further common
cause
fact and/ or principle accepted by all the experts is that sand has
higher permeability when compared to clay. Dr Ofer testified
that the
map depicted different soil sediments of the area and that:
[45.1]
Both sides of the river are surrounded by grey material referred to
as K2m. This is the Karoo System composed of shale,
sandstone, clay,
coal seams, limestone and conglomerate. The soil sediments contain
clay.
[45.2]
Parallel to the river is a strip of sand. The Karoo deposits have low
permeability because of presence of clay. The sand
has high
permeability and consequently, if water inundates an area, it will
flow into the sand because of the high permeability.
[45.3]
The properties comprising stands 63, 58, 59 and 60 are on the
boundary of the strip of yellow material parallel to
the river made
of sandy soil section on the map. The section between the river and
that uphill towards P. Avenue and S. and I.
Roads, reveals that next
to the river are the sediments made of the K2M wall (Karoo system).
The next sediments are made of sand
of mixed origin, either hill-wash
or windblown sand. Then, Karoo sediments appear again.  It seems
the waterfront of all the
properties had the clay barrier
[28]
between the sandy island and the river on the geological map
[29]
prevented the subterranean water from causing the phenomenon. The
surface of the soil homogenously falls towards the river.
[45.4]
The map depicts an area filled with sand which must be in a trough.
This is a little depression or bath in the soil
filled with sand.
This was found during excavation when sand was identified. This gives
an indication or possibility that ponding
or accumulation of water in
one position in the sand filled trough, and that water may flow into
this sandy material into another
location.
[45.5]
The direction of the sand sediments ran parallel to the river and
follows the contours of the height of the surface
elevation indicated
on the map. The sand sediment does not create a hill or a koppie. The
significance of this is that, if there
is concentration of water,
then, certain volume of water would drain into the ground saturating
the ground. There is a possibility
or high likelihood that water
would flow the direction of the sand deposit parallel to the river,
being the direction of the trough.
When the location of the troughs
is superimposed on the map, it covers plots 63, 58, 59 and possibly
60.
[45.6]
The assumption that water discharged from the storm water drain on
plot 63 would flow directly to the river would depend
on whether
there is frictionless, obstruction less gradient towards the river.
If there is porous soil, like sand which is saturated
with water,
then there will be a combination of a discharge of flow of water to
the river and some water would follow the direction
of porous sand,
saturating it. Given that there were clay sediments at the bottom of
the sand, the sand itself acted like a pipe.
Water found its way
along the sand.
[46]
Dr Ofer concluded that there is high likelihood and possibility that
the discharge of water on stand 63 saturated the sand
sediments and
caused water flow which traversed stands 58 and 59, the plaintiffs’
property. It was one of the important contributing
factors.
[47]
During cross examination, Dr Ofer confirmed that his report had been
a preliminary report. They had not compiled further reports
as there
had been no demand for further reports. Nevertheless, he was of the
view that he had undertaken what was required as other
details were
already contained in the SRK Report and the report by Mr Trotsky
complimented what was required the final report would
have been
similar.
[48]
He confirmed that at the meeting of experts
[30]
,
it was agreed that it could not be said that the tarring had an
influence on the shallow localised ground water levels without

further investigations based on the available data.  He
confirmed this, and that there was no data prior to the tarring of

the road. He also confirmed that the upward gradient ponding of the
site had to be investigated. This relates to the spreading
of the
damp soil from the lower area of the property to a higher area of the
property
.
Nevertheless, the old dwelling was 4-5m above the river and he
excluded shallow ground water as the cause of the flooding.
[49]
The exact location of the property was not on the oval sand bank
identified. While there is a sand deposit indicated on the
map, exact
boundaries were depicted by a dotted line to due to the lack of GPS
System technology used then. However, when he did
his onsite
inspection and excavated on the land, he found sand in with clay
material indicated in the trial hole dug at the brick
wall on stand
59.
[50]
He further testified during cross examination, that the possible path
that subsurface flow of water took in 2007 from stand
63 of the Green
property was an intelligent guess.  An accurate determination
required the use of the TLB machine to dig holes
in all the stands
63, 58 and 60. Only stand 59 was available to him. He had to refer to
the map and what he could see on site.
It was pointed out to Dr
Ofer that the green line he drew depicting the direction of the flow
of water traversed the houses on
stands 63 and 58. He confirmed that
he had not investigated whether there was severe water damage on the
neighbouring properties.
[51]
He was asked to explain the elevated ground water in respect of the
hole
[31]
at the centre of the
original dwelling where he tested the ground water level. He
testified that when he examined the property,
which was immediately
after digging the holes, the water table was noted at 1.5m below
ground level. It was 0.4m in the northwest
side near the joint
between the brick wall and the wired fence.  His findings were
compared with that of Mr Trotsky. Mr Trotsky
had tested the water
table on the property in 2015. He found that the water level was 12cm
below ground level at the site of the
original dwelling. Dr Ofer
confirmed his instructions that the flooding dissipated.
[52]
The explaination Dr Ofer made for the elevated ground water level in
2015 with the new drain installed five years later was
that Mr
Trotsky did not see the flooding of the property. He saw a high
perched ground water table level at a certain point in
time. This was
not at the surface and the water table fluctuates with time.
The fluctuation may have been caused by other
sources of supply of
ground water in the uphill section. The cause of fluctuation required
further study which he did not carry
out.
[53]
Mr Trotsky’s
[32]
findings in respect of the possible sources of shallow ground water
levels were put to Dr Ofer. Mr Trotsky had found that these
were
attributable to natural rise of regional ground water levels. He
confirmed this possibility. However, he rejected the possibility
that
the reeds from the neighbour had created wetland marsh which caused
the water table to rise. The neighbours duck pond as another

potential possibility could not have caused so much water; the pond
would have been limited in effect.
[54]
The geological conditions, particularly the presence of clay rich
soil which was agreed to have a low transmivity thus acting
as a
confining layer creating a shallow perched aquifer, put to Dr Ofer
could be explained by a blanket of clay present beneath
pervious
material. This would cause a rise in the water table.
[55]
With regards to the rising levels of the Vaal River as a possible
contributor, he testified that the location of the original
dwelling
was about 4-5 meters above the normal water level in the Vaal River
which is kept as low as possible due to limited flow
from the Vaal
Dam. The depressions in the property, even though not dealt with by
Mr Trotsky in his report were to Dr Ofer. His
opinion was that there
needs to be continuous rain fall causing saturation affecting ground
water level. This would be felt if
there is significant rain fall. If
the soil is pervious, then it may have an impact on perched ground
water table.
[56]
Dr Ofer’s expertise in Road Construction and Drainage Systems
and Roads was questioned, he testified that he had lectured
in this
area and had constructed roads in Israel and Kenya in the past. It
was suggested that the culverts placed on a road depended
on the
permission of the Municipality, which had a servitude. He testified
that surface drainage is part and parcel of the design
and
construction of the road. If one does not create a storm water
drainage, then a danger is created which can affect the stability
of
the road. In his opinion a drainage system is one of the most
important factors in the construction process without which the
road
will fail and the investment in the construction lost. The purchase
of a right of way must be viewed separately from the engineering,

design and construction of the road.
[57]
Dr Ofer’s opinion was that a determination of adequacy of
drainage system was ascertainable as reliance was generally
placed on
standard hydrographs which inform on the intensity and distribution
of the rain in various areas. He testified as an
example that, the
geometry of the road together with factors specific to that region
will determine the number of culverts required
for the length of road
to be constructed.
[58]
The last expert witness called on behalf of the plaintiffs was Mr
Tobias, a building project manager and engineer. He holds
a BSc
Building Science Wits, and is an expert in Contract Management and
Dispute Resolution.   He testified that on 5
August 2013,
he conducted a site inspection of the stormwater provision at the
corner of I. and P. Ave Roads. He also walked around
the premises of
stand 59 to understand where the water was coming from.
[59]
He had compiled the report
[33]
in which he identified 3 problems with the stormwater drainage
system. The first was that the storm water drain did not take the

water down to the river. The second was that the drain was installed
on the southern lower side of the road instead of the uphill
side,
and, the third was that the size of the pipe was not adequate. These
three problems identified with the initial drainage
system were
addressed in the second installation.
[60]
On inspecting stand 59, he discerned two water courses which left a
very green strip of grass traversing the site. The first
water course
path came from the roadside towards the boundary fence, the second
was ran parallel to the river. The paths converged
through the
trundling fence.  He testified that trees along the fence were
standing but dead. He had assumed that this was
due to excessive
water. On the driveway of stand 58, he could see that the blocks were
coming off due to considerable amount of
water. A volleyball court on
stand 58 was destroyed because of excessive water. He could not be
definitive as to the cause of the
two water streams and could not
confirm whether the water was surface or subsurface Even though it
was difficult to see, as there
was a wall between P. Ave and Mr
Greene’s property, a berm, a long strip of soil had been built
up as a water barrier built
up on the boundary to protect the
property from flooding.
[62]
He testified that water dammed up at the corner and ran down the
through the driveway following the contours because the topography

was such that there was no other place where the water could run as
the next lowest point was the stand 63 and 58 driveway. His
[34]
report states that the use of the pipe was inappropriate and
inadequate because it was installed on the lower side, being the
left- hand side when driving down P. Avenue when it should have been
on the higher side in terms of good practice. The pipe went

underneath the road. An intercepting channel on the other side be
inserted with culverts feeding the water into the upstream side
of
the channel until it reaches the lower point. At this lower point,
the water would feed into the drain into a channel to discharge
the
water into an area that could take it.
[63]
Confirming his report, he testified that t
[35]
he
installation of a bigger pipe on the correct side of the road
dispersing water to the river allowed the Lane property to dry.
He
concluded that the increase in the water table was also caused by
event 2 relating to water from damning of P. Avenue. However,
the
plaintiff claims this is not the cause of the damage to the
plaintiff’s property. With the choice of tarring of the road,

there was a lower friction causing velocity of water running down the
road to increase. There was nothing to impede the flow of
water as
there is lower permeability.
[64]
He largely confirmed Dr Ofer’s evidence and testified that the
tarred road caused a lower friction and high velocity
of water
running down the road to exponentially increase. The low permeability
from the tarred surface meant there was nothing
to impede the water
flow.  This required quicker evacuation and the size of the pipe
did not allow for this. If the 450mm
did not go all the way to the
river, and there was no water arriving at Green’s property,
then there would be no problem
with the pipe.
[65]
In so far as the adequacy of the pipe installed, he referred to Mrs
Lane’s testimony that they started to see water receding
after
the installation. He confirmed that he had not walked through water
under foot when he inspected the site. In his opinion,
had the 1.5m
pipe been constructed initially, then the level of damage would not
have been as severe as there would not have been
that amount of water
traversing the property and leaving a very distinctive green patch
three years later.  In his opinion,
the pipe still need to
discharge directly to the river even if the 1.5m pipe was installed
from the outset. A bigger drainage pipe
would have assisted but water
would have followed the contours as described by Dr Ofer.
[66]
As to why the property is not as wet as it was before, his view was
that, although he is not a hydrology expert, had the bigger
pipe been
installed sooner, on the correct side of the road, the problem would
have been alleviated. In his view, the pipe would
need to discharge
to the river regardless of the size.  He had submitted a
preliminary report because some of the aspects
of the matter were
beyond his expertise hence why Dr Ofer was called. He had not been
sure whether further reports would be required
from him.
[67]
During cross-examination, the defendant took issue with Mr Tobias
having opined and determined the culpability of the defendant.
He had
stated in his report
[36]
that the defendant had mitigated its errors and that the council had
to make reparations to the plaintiff – a predisposition
against
the council, a matter that was outside of his duty.
[68]
To show that the installation of the previous pipe was not incorrect,
it was put to Mr Tobias that because the camber
[37]
of the road allowed for the water to run to the northern side of the
road as well, the municipality had to create an avenue on
this side
of the road for the water to flow in, hence why the pipe was
installed to run underneath the road. The defendant’s
version
is that, given the typology, P. Avenue was built with a camber
[38]
.
Consequently, water ran on both sides of the road. A drain
inlet on the northern side would have ensured that the water
on that
side was captured as well. If there was no drain inlet on the
northern side, then the water would not have gone into the
drainage
system or otherwise a pool of water would have been created.
[69]
Mr Tobias testified that under normal circumstances, the installation
by the defendant would have been correct. The problem
however would
have continued to exist because the pipe 450mm pipe on the north side
that runs under the road was blocked off by
Green and he understood
that it was not operational. All the water is running through the
150mm diameter pipe. In his opinion,
the road should have been sloped
to take the water across into the new inlet built. The current
structure does not let it collect
into the 450mm diameter pipe.
He conceded that he had not investigated whether the 450mm pipe was
connected to the new 150m
pipe. His opinion was that there had been
no need to do so because the 150m pipe ran through to the river and
the likelihood of
a flood was negligible.  He was of the view
that the water catchment area that was superior and more correct
point for installation
was the southern side rather than the northern
side.  Installing on the northern side was a secondary point and
not the main
point to install.  It was a matter of opinion which
installation was the more correct. He testified that the defendant
should
have installed it correctly initially instead of doing so the
second time.
[70]
He confirmed Dr Ofer’s evidence that the adequacy of the pipe
depended on the variety of factors which included inter
alia, the
slope of the road, the rainfall, velocity with which the rain came
down on the road. He conceded that there had been
no data with this
information. He further conceded that these unknown factors would
have impacted on his and Dr Ofer’s report.
Even if this
were so, in so far as the contours and the determination of the path
of least resistance with regards to the water
flow onto stands 63 and
58, he relied on the path of green grass which indicated a waterway
which irrigated the grass to grow.
[71]
Mr Tobias confirmed that he had not gained access to Mr Green’s
property and could not state where the drain deposited
water on Mr
Green’s property. He relied on the documentation available to
assess and testify that it would have been closer
to the road.
It was put to him that this was not first-hand information. He
testified that if the Municipality had created
a channel past the
point where the pipe daylighted
[39]
a quarter of the way down Mr Green’s property, it may have done
what was required but the sufficiency of the size to pick
up the
volume of water, he could not determine.
[72]
He confirmed that the natural flow of water, would be a straight line
between contour angles at 90% from a contour line. He
also confirmed
Dr Ofer’s evidence that the slope from the corner of P. Ave.
and I. down to the river is at a steeper gradient
than the slope from
P. Ave. and I. down to stand 59 where the old dwelling stood. The
importance of the contour lines is that it
would not have caused the
water to flow to 59 but the normal course along the surface towards
the river being the shortest possible
route.  He conceded that
he was not an expert in this area but that the water would take the
path of least resistance. He
relied on the evidence of Dr Ofer in
this regard.
THE
DEFENDANT’S EVIDENCE
[73]
Mr Jean-Pierre Squirra was called on behalf of the defendant. He
holds a National Diploma in Civil Engineering and National
Higher
Diploma in Civil Engineering. He was Acting Assistant Manager of
Storm Water from 2004 to 2007. Mr Squirra works for the
defendant.
The plaintiff objected to his being called as an expert witness on
account of his independence. It was also submitted
that he had not
attended the meeting of experts.
[74]
An expert notice in terms of R36 (9) (a) including an expert summary
in terms of R 36 (9)(b) was filed on behalf of M Squirra.
The
defendant submitted that in the light of testimony by Mr Tobias and
Dr Ofer which expressed opinion outside of the expert reports

submitted, Mr Squirra will express factual and opinion from his own
qualification and expertise. Accordingly, he was not asked
to express
expert opinion or evidence.
[75]
Mr Squirra. was initially employed in the planning of maintenance of
road and stormwater infrastructure, surveying stormwater
design
including aspects of budgeting. From 2008 onwards, he became Acting
Assistant Manager - Planning which entailed assessing
applications in
change of land use including roads and storm water best practice. He
has been involved in several roads and stormwater
projects since even
though he was not involved in the project concerning the subject of
the litigation.
[76]
His first involvement was in 2007 after Mr Green blocked off the
drainage system. He attended a meeting at Mr Green’s
property
between September and October 2007.  There was a trapezoidal
drain on the north-western boundary of stand 63 inside
Mr Green’s
Property. The channel daylighted fifty metres (50) from the wall
towards the river. When he arrived at Mr Green’s
property, the
drain pipe was closed.  Water could not flow into the inlets and
wing walls on the outside. While he had no
idea of the amount of
rain, his view was that there must have been excessive rain, given
that the tarring was completed in 2006/
2007 and Green closed the
drain in 2007 which would have caused the amount of water.
[77]
He testified that various factors are considered to determine the
size of the storm water drain pipe to be installed. The bottom
line
consideration is the flow of volume of water is, including the size
and slope of the catchment area, the water course whether
it flows
overland and type of cover of the catchment area, namely, whether the
area is grassy or paved.  The possibility of
flooding was taken
account of using the Blue Book.
[40]
The Blue Book is also used to determine what rain events to cater
for.  Depending on the class of road the design is intended
for,
allowance is made for certain encroachments. The size of the pipe
depended on these factors.  On the outlet side, the
slope of the
conduit that is being discharged into and characteristics of the
conduit.
[78]
Squirra testified that for urban design, the parameters for the storm
water drain design was one in two (1:2) years flood occurrence.
This
would be more common indicating more regular but smaller storms
requiring a smaller drain pipe. For agricultural land as the
current
one, the standard approach for flood occurrence interval to determine
the parameters of the storm water drain pipe used
was for one in five
(1:5) years occurrence which is of higher magnitude but not more
common.  For Rural areas, they used the
same parameters of one
into five years flood occurrence.  It would seem that the pipe
was designed for those parameters instead
of one into fifty years
flood occurrence even though he had not been involved in the design
of the pipe.
[79]
He testified that he traveled on the road after it was tarred. The
shape of the road remained the same. The road acted as a
channel for
the water coming from the north in a similar fashion as the newly
constructed road save for one portion where the road
was lifted. The
drain is installed at the corner boundary of the stands. Squirra
disputed that there is a cross fall in that area
of the road.  He
testified that even though the road flattens out, the camber remains.
[80]
He testified that flooding is not something the council can control.
The Council was allowed to have a sheet flow
[41]
of 150mm over an owner’s property in the event of bigger
storms. The big pipe was installed because Mr Green was adamant
he
did not want water on his property. Mr Green’s conduct was
unfair for this reason. He testified that if the defendant
had
constructed a pipe to suit the design flow explained earlier, and a
storm higher than designed for, there would have been water
spanning
off the road and had problems with the rest of the community. He then
said for the duration of the road, to put a pipe
big enough to please
everyone. It was decided to increase pipe than what the channel was
designed for.
[81]
The discussion between the defendant and Mr Green leading to the
construction took from 2007 to 2010. The defendant needed
to
advertise the tender, which had to be re-advertised and had to wait
for additional funding before appointing the contractor.
It seems the
drain remained closed for three years.
[82]
Regarding the evidence of the contours and flow of water testified to
by Dr Ofer, he agreed that water would flow through contours
in
perpendicular lines.  He testified that when surface water was
deposited at Stand 63 immediately after the boundary, the
natural
flow of water would not have allowed it to proceed to stand 59. He
had visited the plaintiff property after receiving the
summons. There
was a worker who directed him to where the old dwelling was. He had
scratched the surface of the soil and at 5cm,
the soil was moist but
not wet. He did not find ankle deep water that Mrs Lane had testified
to. The domestic worker who it later
transpired commenced work with
the Lanes in 2009 said that it was “always like this”.
Even though he is not a
soil expert, he could press the soil together
and see that it was a mixture of clay and sand.  His finding was
that the construction
of the road resulted in less surface water
flowing into the property as the road cut water coming from the
north.
[83]
He testified that the reason the larger storm-water drain was
installed was that Mr Green demanded it. This was after the defendant

investigated several alternative arrangements including enlarging the
channel to prevent the water from spilling out of the pipe
which Mr
Green refused. The municipality was forced to capitulate as it
received letters from Green’s lawyers to the effect
that it had
to install a pipe. Funds had to be appropriated which were in the
region of Two Million Rand (R2m) including legal
fees.  Leaving
it unattended would have potentially resulted in costly legal battles
and water down the drain and hence the
Municipality decided to
install the pipe.
[84]
He confirmed that he had no knowledge of the thought process that
went to the construction and design of the road and the initial
storm
water drain. The original cost was One Point Two Million Rand
(R1.2m). He was involved in the review of the design of the
second
drainage system. The council spent R2m which is a lot more on the
bigger pipe with 2 or 3 more drainages construction.
He was
asked to explain why the defendant was prepared to spend an
additional R2m (without community contribution) because Green
insists
yet initially when allocating the expenditure for the first pipe the
council was not prepared to take it all the way to
the river. He
testified that the initial storm water drain was efficient up to the
point where it daylighted.  The fact that
there was overflow out
of the channel was because it was designed for 1:5-year flood not
1:50-year flood occurrence. There was
nothing wrong with the original
design.
[85]
While Mr Squirra conceded that rolling the same pipe out to the river
would have cost less, he however did not agree that when
regard for
the financial constraints were factored, it would have been better to
take the pipe down to the river in the first place.
In his view,
“there was no need for a Rolls Royce when a Volkswagen could
have done the job.” The hundred (100m) of
pipe could have been
used elsewhere. He testified that the water did flow to the river
over two (2) metres and the land was not
being used for anything
else.
[86]
It was put to Mr Squirra that one must consider subterranean
conditions of the soil surface to ascertain where the water would
go.
His view was that this would have been relevant if water was
discharging on a flat area. It would not have been necessary to
go
into it except for on a steep slope area like the one at issue.
[87]
Mr Squirra was examined on his report, and the impression created
that he did not deal with subterranean water disbursed from
lower
down from Mr Green’s property. His report was based on the
blockage of the drain by Mr Green. He concluded that the
damages were
a result of the exposure to the highwater table of the river due to
proximity to the river. He testified that he did
not think that
anybody would make sense or imagine that water would seep into the
ground and then run on a slope of 2 % into a
sand pipe and move
upstream.  He testified that if the subsurface water followed
the contours as testified, there would be
complaints or evidence of
water damage to the buildings on the other properties. He conceded
that he had not gone to investigate
damage to the other properties.
[88]
He testified that the damage to the volleyball court of stand 58
could have been caused by surface water. If one took account
of the
perpendicular lines of the contours, water entering stand 58 would
have gone to the west than to the east. The statement
made in the
report that
[42]
there was no
evidence of water damage was not correct for stand 58 but was correct
for stand 63. He had consulted with the owner
of stand 63 and there
was no damage to the property.
[88]
He referenced the horizontally and vertically close proximity of the
river
[43]
as well as the
height of the water table to be at close proximity relative to the
foundation of the demolished house as a contributing
factor.
When considering the evidence of Dr Ofer that the old dwelling was 4
to 5 meters above the waterline of the river,
this meant that the
foundation of the old dwelling had to have been below the surface. He
based this on the calculation of the
contours line in Annexure C2
which had 16 contour lines thus creating value of a height of seven
(7) metres from the top to the
bottom. He conceded that based on the
evidence of Ms Lane that save for the 1976 flood, they had not had a
problem of ground water
sitting on top, water coming from the bottom
was not likely to create ankle deep water phenomenon described. Even
though there
was a high water table, the introduction of water on an
already existing highwater table can contribute to water sitting on
top
of the ground.  It was put to him that water from the top
needs depressions to reach the ankle depth phenomena. He conceded

that he could not explain the phenomena unless the floor level was
built below ground level as stated. The sudden appearance of
this
after fifty ( 50)  years of occupation made this unlikely.
Mr Squirra was of the view that if the floor
is higher than
ground level the water will run away. If the level of the water is
surrounding the house, then it means the house
was built on a
depression. He had never seen the house so he could not explain the
sudden ankle-deep nature of the water phenomenon.
Nonetheless, his
conclusion was based the absence of a water system, caused by the
blockage of the drain by Green.   He
conceded that it was
faster than the gradual saturation process of 30 years. He did not
offer any other explanation of how the
water could have got there in
the event that I accepted Mrs Lane’s evidence that it started
after the previous stormwater
was built and receded after the second
storm was built. He was invited to offer an alternative explanation
to the court if he does
not accept Ofer’s explanation. He
offered no further evidence other than the evidence tabled.
[90]
The second witness called for the defendant was Mr Trotsky
,
a Hydrogeologist from the Free State
University and Registered with the Council as such. He specialises in
groundwater studies,
ground water flow and contamination studies. His
report details factual data and findings of water measurements
conducted using
a piezometer on the property in July 2015,
approximately nine years after the event. He confirmed that the
report could not have
dealt with 2006 and could not correlate Dr
Ofer’s of ground water levels found at 1.5m in 2013 with those
undertaken in 2015.
He had found shallow ground water levels at 12cm
where the old dwelling was once located.  His mandate was to
check the site
as it is and not check what happened in 2006 by
conducting a geohydrological assessment. The report which was based
on a conceptual
site model built at the time of the investigation
does not give a definitive opinion on what caused water logging on
the property
in 2006. He confirmed that all the areas where there was
a clay lens this would restrict the vertical integration and flow of
ground
water.  His opinion was that he would have expected the
water levels to gradually decrease over time.
[91]
He testified that the volume of subsurface flow could not be
determined as no studies were done to determine the infiltration
rate
(recharge) of the surface water to the subsurface water to a layer at
which it will flow upon and the gradient of the subsurface
flow
before and after the construction of the initial storm water drain.
His opinion was that detailed soil properties of the area
were
required including drilling auger holes, infiltration tests and pump
out tests using piezometer. With regards to the travel
of storm water
from stand 63 to stand 59 found by Dr Ofer as likely, his view was
that Dr Ofer’s likely and his might differ
and a more objective
approach required intrusive work involving a grid of auger holes
[44]
to map the flow of ground water direction, probably conducted over a
period of two days.  Water would need to settle to a
point of
equilibrium and measured with a piezometer.  He however,
confirmed that even though on the face of it, it looked
like based on
the contour lines, subsurface water would follow the natural
typography towards the river, the flow would be altered
and
redirected by a less permeable formation or an intrusive formation.
[92]
During cross-examination, he confirmed the geological formation and
the finding of sand dykes in the area even though he could
not
confirm their exact location. He agreed that when they drilled auger
holes on the property, they may have intercepted the sand
dyke. He
did not dispute Dr Ofer’s testimony that the dotted lines meant
it was uncertain but probably existed on other sites
even though it
could not be confirmed.
[93]
Mr Trotsky testified to a photograph
[45]
taken at stand 59 in proximity of the Lapa facing towards the boat
house, near Auger Hole 4. The significance of this photograph
is that
it showed a wet area, together with a dry area as well as an area
that is a clear indication of a moist area. The area
had shallow
ground water levels. The conclusion that he drew in relation to this
and the conceptual site model
[46]
he developed is that the area which was wet had clay material soil
below hence the reason for the wet soil. The flat relief of
the area
near the river could account for this.
[94]
Trotsky identified three other possible sources of water surface
features and the possibility of subterranean water coming
from
underneath, namely the perennial Vaal River’; Wetland Mash Area
and the pond on Plot 58 including the area of shallow
groundwater
levels that would cause a risky foundation identified in the southern
section of the site. Whether these could have
caused the phenomena of
water advancing was tested with Trotsky during cross-examination. He
testified that the SRK Consulting
Report tests found isotopes and a
correlation between the river water and runoff or surface water
therefore river water could not
be excluded. Water quality analysis
done indicated that river water and the water intercepted in the
auger holes correlated. However,
Municipal water leakage was excluded
as a cause. It was agreed that the river potentially contributed to
the high water table.
But as to how it contributed to water on 59, he
could only refer to the chemical isotope analysis, or possible
recharge of the
area due to the flooding of the river rising the
water levels of the river. He nevertheless agreed that this was
unlikely as the
last flood occurred 40 years ago, and in relation to
the conceptual site model, the massive clay layer on plot 59 ground
water
would not flow in that direction flow. He conceded that in plot
58 water could flow in that direction and this cannot be excluded.
[95]
Dr Ofer had found two sets of deposits hill wash colluvium and
alluvium material His view is that is a mixture of clay sandstone,

shale and clay is made of alluvium and hill wash from the river and
sandy soil from the storm. Mr Trotsky agreed that It was not
likely
that the water flooding phenomenon was caused by the river or by the
subterranean water from the river. The sudden nature
could not have
been caused by the river. That water receded after the new drain
could not be denied.
[96]
The wetland marsh area as a contributing factor was also
examined
[47]
.  When
questioned why water would suddenly appears and ceases occurring he
agreed that this did not tie in with what happened
in 2006. The pond
on plot 58 was also examined and excluded as a potential contributor
as there had been no leak. The possibility
of Eucalyptus plants and
trees (9 of 24 trees were already cut) raised. The trees had died
from rotting from overexposure to water.
He could not dispute that
the removal of the trees caused the phenomenon.
[97]
Dr Ofer’s evidence that the old dwelling was four / five 4/5
meters
[48]
raised from the
water level to the edge of the river was considered with Mr Trotsky.
Mr Squirra on the other hand testified that
the house was between one
meter and one meter and a half above river level. When questioned on
what would be expected of the surface
water flow given the elevation
of the house, he confirmed that this was outside of his expertise as
a Hydrologist, he had not found
it relevant and he had not disagreed
with Dr Ofer’s findings at the meeting of experts.
The
SRK Consultants Report’s finding that the storm water would
have drained to the river, as well as Dr Ofer’s explanation

were put to Mr Trotsky who testified that it was all possible in
theory that Dr Ofer was correct. He was not able to provide an

alternative theory to explain Mrs Lane’s evidence that they had
been ankle deep in water and confirmed that he could not
deal with
the 2006 phenomena.
ISSUES
FOR DETERMINATION
[98]
The issues for determination are:
[98.1]
probable cause of the inexplicable flooding on the plaintiffs’
property.
[98.2]
whether the storm water drainage was constructed in an inadequate
and/or inefficient manner, and whether in doing so,
[98.3]
the defendant breached the legal duty it owed to the plaintiffs
leading to the damage to the property and was therefore negligent.
[99]
These issues impact on when the plaintiffs acquired knowledge of the
claim they have against the defendant and, in turn, whether
the claim
has prescribed.
[100]
I will adopt a similar approach as that followed during the trial
proceedings and address the question of whether the claim
has
prescribed in terms of the
Prescription Act and
ILPACOS at the end of
the analysis of the evidence.
APPLICABLE
LEGAL PRINCIPLES, ANALYSIS AND DELICTUAL LIABILITY
[101]
I deal with the applicable legal principles to determine whether the
defendant is liable in delict to the plaintiffs and apply
these to
the evidence before me.
[102]
The essential elements of a claim in delict are:
(a)
conduct initiating wrongfulness, by the defendant;
(b)
fault by the defendant which may consist in either intention or
negligence;
(c)
harm suffered by the plaintiff; and
(d)
a causal connection between the conduct of the defendant and the harm
suffered by the plaintiff which must not be too remote
(unless this
limitation is subsumed under the fault element)
[49]
.
[103]
In
Hawekwa
Youth Camp and Another v Byrne
[50]
Brand
JA states that:
“
The
principles regarding wrongful omissions have been formulated by this
court on a number of occasions in the recent past. These
principles
proceed from the premise that negligent conduct which manifests
itself in the form of a positive act causing physical
harm to the
property or person of another is prima facie wrongful. By contrast,
negligent conduct in the form of an omission is
not regarded as prima
facie wrongful. It's wrongfulness depends on the existence of a legal
duty.
The
imposition of this legal duty is a matter for judicial determination,
involving criteria of public and legal policy consistent
with
constitutional norms. In the result, a negligent omission causing
loss will only be regarded as wrongful and therefore actionable
if
public or legal policy considerations require that such omission, if
negligent, should attract legal liability for the resulting
damages
(see e.g. Telematrix (Pty) Ltd supra para 14; Local Transitional
Council of Delmas supra paras 19 - 20; Gouda Boerdery
Bk v Transnet
2005(5) SA 490 (SCA) ([2004]
4 All SA 500
para 12).”
[104]
During argument, the plaintiffs submitted that there was a commission
as well as an omission by the defendant. It was submitted
that the
defendant failed to disperse the storm water directly to the river.
In so far as the omission is concerned, the plaintiff
submitted that
the defendant had failed to investigate or conduct an analysis of the
soil conditions on stand 63. It was argued
that the defendant could
have established this by employing a hydrologist as it was incumbent
on the defendant to track the potential
path of the storm water to
determine whether there would be any fact on the natural water table
since an increase in the water
table potentially led to surface water
appearing with nowhere else to deposit
[51]
.
[105]
The wrongfulness of the defendant’s actions is premised on the
fact that if the defendant foresaw or ought to have reasonably

foreseen the potential harm, then it should have taken steps to
prevent such harm. The defendant which is part of the sphere of
local
government is enjoined with certain powers and functions in terms of
Section 84(f) of the Municipal Structures Act 117 of
1998 which
includes the power to establish municipal roads.  The question
is whether the legal convictions of the community
demand that the
defendant takes actions to avoid harm?
[52]
[106]
I have had regard of the decision in
Municipality
of Cape Town v Gladys Marjorie Bakkerud
[53]
where
the court considered previously held position that in the absence of
an antecedent or concomitant act of commission act by
the
municipality which must necessitate a different result, no legal duty
emanating from the law of delict to repair a street or
pavement could
arise
.
I
am satisfied that the defendant does not enjoy immunity in relation
to a negligent act or omission.  Even though the
construction
project was partially funded by the residents, more was required from
the defendant to establish financial constraints
or grounds for
immunity in this instance.
[107]
The time-honored test for the determination of negligence is the one
formulate
d by
Holmes
JA in Kruger v Coetzee
1996 (2) SA 428
(A) at 430E - H. According to
this test, negligence will be established if –
1. “A
diligens paterfamilias in the position of the defendant -
(i) would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial
loss;
(ii) would
take reasonable steps to guard against such occurrence; and
2.
the defendant failed to take such
steps.”
[108]
The material aspects of the issues for determination largely depend
on the expert evidence led. Prior to dealing with
the merits, it
is essential to restate the principles governing the role of expert
witnesses in trial proceedings as these have
informed my approach to
the evidence before me. In
S
v Gouws
[54]
:
“
the
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specialised
field. His
own decision should not however, displace that of the tribunal which
has come to determine the issue to be tried. “
[109]
The abiding principle that an expert should provide independent,
unbiased assistance to the court, free from the influence
of the
litigants and the litigation, has been reaffirmed in a number of
court decisions.
In National Justice Compania
Naviera S.A v Prudential Assurance Co Ltd 1993 (2) Lloyds Reports 68
-81
as well as the decision in
Schneider
NO and others v AA and Another
where the
court quoting the judgment by Nicholson J stated that:
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusions of the expert, using his
expertise, are in favour of the line of argument of the particular

party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion, based on his or
her
expertise, as far as possible. An expert should not be hired gun who
dispenses his or her expertise for the purpose of a particular
case.
An expert does not assume the role of an advocate, nor gives evidence
which goes beyond the logic which is dedicated by the
scientific
knowledge which the expert claims to possess”.
[110]
In this sense, an expert may not assume a role of advocate for a
party.  I have considered the evidence of both Mr Squirra
and Mr
Tobias against the backdrop of these principles.  It was common
cause, and the defendant agreed that Mr Squirra cannot
be qualified
as an expert given his employment relationship with the defendant.
Due to this proximity, I have accordingly, considered
his evidence as
that of a factual witness.  I deal with aspects of this evidence
later in the judgment.
[111]
In so far as Mr Tobias is concerned, I take cognisance that he was
challenged for having prejudged the issues. During his
testimony, he
referred to the defendant as being “naughty”, and these
comments are not helpful to the court. An inference
of bias and
partisan was made, and given this, I accept that this inference was
correctly made.  The probative value of the
expert evidence will
be of little assistance to the court.
[112]
The subject of this dispute involves what both litigants regard as
inexplicable and unusual phenomena. I am of the view that
the
technical nature of the issues under consideration demand that I be
provided with evidence of good repute I can rely on to
formulate a
decision, untainted by any imputation of bias towards any particular
party.
If
I am to draw an appropriate inference, reach a fair conclusion,
independent unbiased defensible theory before the court
[55]
on the probable cause of the flow of the water is necessary.
Mr
Tobias’ approach as an expert did not meet these requirements
and I have as a result excluded it for the purposes of this
judgment.
[113]
I now deal with each of the issues of factual causation seriatim
below. As stated in
International
Shipping Co (Pty) Ltd v Bentley
[56]
'As has
previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is
a factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiff's loss. This
has been referred to as
'factual causation'. The enquiry as to factual causation is generally
conducted by applying the so-called
but-for test, which is designed
to determine whether a postulated cause can be identified as a causa
sine qua non of the loss in
question. In order to apply this test one
must make a hypothetical enquiry as to what probably would have
happened but for the
wrongful conduct of the defendant. This enquiry
may involve the mental elimination of the wrongful conduct and the
substitution
of a hypothetical course of lawful conduct and the
posing of the question as to whether upon such an hypothesis
plaintiff's loss
would have ensued or not. If it would in any event
have ensued, then the wrongful conduct was not a cause of the
plaintiff's loss;
aliter, if it would not so have ensued. If the
wrongful act is shown in this way not to be a causa sine qua non of
the loss suffered,
then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a causa sine qua non of
the loss
does not necessarily result in legal liability. The second
enquiry then arises, viz whether the wrongful act is linked
sufficiently
closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This is
basically
a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called legal causation.”
What
was the probable cause of flooding on the property?
[114]
The first question requires that I deal with the probable cause of
the water flooding the Plaintiff’s property.
As
already stated, there is no dispute between the parties that the
plaintiffs first noticed the slow but sudden creep of water
onto
their property after the roads were tarred.
[115]
In assessing the probable cause and flow of water, I have had close
regard of the expert explanation offered by Dr Ofer’s
and Mr
Trotsky’s testimonies. In my view, the evidence of these
experts met the criteria in
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung
[57]
where
the court stated that:
“
As
I see it, an expert's opinion represents his reasoned conclusion
based on certain facts or data, which are either common cause
or
established by his own evidence or that of some other competent
witness. Except possibly where it is not controverted, an expert's

bald statement of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process
of
reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert.”
[116]
I have considered their evidence against the factual description
provided by Mrs Lane. The evidence was also weighed against
the
factual evidence of Mr Squirra for the defendant.
[117]
The point of convergence is that all the experts agreed that the
introduction of impermeable surface through tarring the roads

increased water surface flow. I am satisfied that the connection
between increased volumes of water and the tarring of the road
was
established. Any differences between Dr Ofer and Mr Squirra as to the
exact cubic meters of water created and deposited does
not detract
from the fact that tarring introduced an impermeable surface which
increased water flow. I am also satisfied that the
lowest point for
the deposit of the water was the initial drainage system at the
corner of I. Road and P. Avenue.
[118]
This leads me to the evidence of the explanation of the water would
have progressed from Mr Green towards the river and seemingly
turn
upwards towards the plaintiff’s property.  The assumption
that water would flow directly to the river was tested
with all the
expert witnesses.  This common view was held by all the
witnesses called, that ordinarily,
water
would flow on the path of least resistance. Therefore, if the
gradient as in this case was towards the river, it would have
been
expected that the water would flow towards the river.  It was
also evident in the initial report prepared by SRK Consulting,
which
was referred to by all the experts.  There is no dispute and as
consequence I have inferred from the facts that by daylighting
the
storm drainage pipe at Mr Green’s through the channel that was
built, this common assumption was also held by those responsible
for
the construction of the drainage.
[119]
This brings me to the evidence offered to explain the departure from
the common assumption which must be considered against
the backdrop
of increased volumes of water introduced by tarring as aforesaid.
The
auger hole tests conducted by Dr Ofer and the different soil
composition found on various areas of the property appear to align

with the soil composition testified in respect of the geological map.
When
one has regard to the nature of the soil, Dr Ofer and Mr Trotsky were
in relative agreement that the property, had sandy soil
as well as
the layer of yellow-brown fine grain sandy soil was found on the
northern side of the property, even though Mr Trotsky
had made no
reference to the sand dykes in his report
[58]
.
I
have accepted that because the map was drawn without the benefit of
the new technology (geotechnical), the boundaries of the oval
sand
bank or sand with clay material found are an approximation and could
not be not be scientifically exact.  I have considered
Dr Ofer’s
reference to an educated guess in this context.
[120]
Significantly, a mixture of soil with clay lenses and clay material
was found towards the southern side of the property near
the
embankment and the river. There is no dispute that unlike sand, clay
material rendered the soil less porous and permeable.
The
conceptual model by Mr Trotsky showed the areas where there was no
room for porous seepage of water or infiltration downward.
[121]
Mr Trotsky had conceded that the phenomena surface water moving of
upward or upgradient was strange, even though he agreed
that the
groundwater (subsurface water) flow direction
[59]
if there is saturation water would appear on top of the surface.
He attributed this to the flat relief and presence of clay
soil.
The Arial photograph showed ground water flow contours
[60]
heading towards the old house northwards. Even though there was no
surface elevation done for the site but it was possible. The

construction of the second water drain accumulated water and
discharged into the river.
[122]
Both Dr Ofer and Mr Trotsky’s evidence of the contours on the
map
[61]
showed that the
southern portion of stands 59 and 63 near the river had similar flat
contour lines. The difference in the gradient
was nominal and the
properties had a relatively stable and similar topography. This was
not disputed by Mr Squirra on behalf of
the defendant.  Dr Ofer
had testified that with increased volumes of water, the porous sand
could act as a pipe or conduit
once reaching saturation point was
reached because of the impermeable clay material.
[123]
Given the sandy soil also evident from the map on Mr Green’s
property, the left turn when it hits the impermeable clay
is
possible.  It was possible that if water was coming across from
the neighbors’ property
[62]
on top of the sandy soil portion depicted, and the area became
saturated and there is a constant recharge, water would rise up
as it
has nowhere else for it to go. Both Mr Trotsky and Mr Squirra did not
dispute under cross examination the possibility that
if the soil
became saturated underneath, with surface flow and the recharge of
water was happening faster, it could look like the
water was moving
upstream/hill even though the area is flat if this was the flow
gradient depending on the rate of infiltration.
[124]
Other than the highwater table
found, a matter dealt with later in the judgment, the alternative
causes offered by the defendant,
were not strong enough and were
excluded as likely possibilities.
It is
essential that I deal with the differences in the explanation offered
by the defendant. This rests on the high water table
found and water
found in the sump showed that the majorly of the water emanated from
the river.
[125]
Turning to the defendant’s case which is pinned on the presence
of the unaccounted high water table found by Mr Trotsky.
It was
pointed out there was no data on the water flow and localized ground
water prior to tarring. The question why a high water
table found
years after the event and after the installation of the new drain
loomed large. Both experts had agreed that the shallow
localized
ground water required investigation.  Dr Ofer and Mr Trotsky had
found a fluctuating water table at different times
during their
respective investigation.
[126]
A photograph
[63]
taken during
the investigation in 2015 shows moist grass to show that the property
still has elevated ground water level on the
southern portion of the
site which includes the area of the old dwelling. The implication is
that even after the construction of
the new water drain, the property
remained moist. All Joint experts agreed that there is a high water
table on the property. Nevertheless,
Mr Trotsky agreed with what Dr
Offer said that if the property was water logged, it could take some
time for the property to dry
out because of the clay lens that is
between the sandy portion where the old house was and the river.
There will be a decrease
over time subject to a charge and a recharge
of water. The water table was not surprising therefore it would have
occurred naturally
in the intervening 5 years by rainwater which
explains why it would be moist even after the new drain.  This,
together with
the clay lens and the flat a relief of the area are
important consideration in my view.
[127]
Dr Ofer confirmed his findings in cross-examination that it was
highly likely or that there was a great likelihood that the
level
groundwater was affected by discharge of water into stand 63 where
discharge of storm water was allowed to flood this property
without a
channel or conduit to direct it to the river. He correctly did not
make a statement as to whether it was the sole cause
or most probable
or exclusive cause as this would usurp the role of the court.
[128]=
Mrs Lane’s evidence is important in this regard. It was not
disputed that the water seepage was noticed after the storm
water
drain. It was also not disputed that there was an improvement after
the new installation and the saturation abated even though
at slow
pace. This seems consistent the mixture of sandy soil and clay
deposits found.
All the
possibilities raised by Mr Trotsky would not have resulted to sudden
increase testified to by Mrs Lane but rather a gradual
increase not
evident.
[129]
As a starting principle, I have had regard of the recognized and
accepted difference between the scientific measure of proof
and the
judicial one highlighted by the House of Lords in the Scottish case
of
Dingley
v The Chief Constable, Strathclyde Police
[64]
,
that:
“
One
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead of assessing, as a judge must do, where the
balance of
probabilities lies on a review of the whole of the evidence.”
[130]
In conclusion, the seminal decision in Linksfield v Michael
[65]
is aposite. The court restates what is required in the evaluation of
such evidence, that it is to determine whether and to what
extent
their opinions advanced are founded on logical reasoning. The court
must be satisfied that such opinion has a logical basis,
in other
words that the expert has considered comparative risks and benefits
and has reached “a defensible conclusion”.
[131]
Based on the evidence by these experts, the location of the clay
lenses and clay material which are indicators of less permeability

corroborate the evidence of Mrs Lane’s evidence in that the
water was seen moving upward. The reference to an “educated

guess” by Dr Ofer in relation to the flow and the location of
the sand bank on the various properties does not detract from
the
basis of the reasoning.  The defendant has mainly placed
reliance on aspects of data which was not available to provide
a
definitive conclusion. This relates to the exact amount of water that
would have seeped into the subsurface, the location as
well as the
depth of the sand bank amongst others.  The defendant also
relies on the SRK Consulting report which had found
traces of storm
water as well water contamination from the river in the sump.
[132]
Even though Dr Ofer was challenged that he had not assessed the
neighboring properties, the factual evidence by Mrs Lane was
that the
water flow moved from stand 63 to 59. There was also evidence that
the water had moved to the neighboring property owned
by Mr Rippen
who was holding the plaintiffs responsible.
[133]
When it was put to Mr Squirra that the conditions of the surface
where the water was dispersed should have been checked,
Mr Squirra
was of the view that it was not necessary to consider this soil
conditions to ascertain where the water would go once
deposited. This
would have been relevant if the water was discharging on a flat
area.  Given that the water was discharged
on a steep slope
area. In my view, the evidence of the soil conditions and that of the
water flow referred to by Dr Ofer are consistent
with the factual
evidence which was not challenged.
[134]
Even though part of the front of the property was still wet, it is
not saturated. Slowly over the years, the back of the property
as
well as the middle to the front dried out.
It
is clear from the evidence of all the parties and Mr Squirra that
neither the defendant nor the plaintiffs could have imagined
the
explanation offered by Dr Ofer.  I am satisfied that the
geological conditions created the underlying conditions in which

water that flooded the property could travel from stand 63 onto 59 in
the manner described by Dr Ofer. No other evidence was offered
to
counter this evidence
[135]
The second question is whether the initial storm water drain was
inadequate and/ or inefficient and the installation incorrect
for the
purposes of dispersing the increased water flow.
Was
the initial storm water drain constructed inadequate and/or
inefficient and the installation incorrect for the purposes of
dispersing the increased water flow?
[136]
The three factors raised by the plaintiff and in the evidence to show
that the installation was inadequate, were that:
[136.1]
a single culvert which was installed on the wrong side of the road;
[136.2]
the size of the pipe; and
[136.2]
the fact that it should have been constructed to deposit water
directly to the river instead of depositing the same on stand
63.
[137]
The defendant argued that Dr Ofer had not expressed opinion on the
alleged negligence but merely a causal link between the
alleged
negligence and resultant damage. I deal with this later in this
section of the judgment.  The defendant linked the
question of
the adequacy of the initial storm water drain primarily to the
evidence of Mr Tobias.  Dr Ofer had testified on
what he
observed as an incorrect installation of the culvert
inadequate size of the pipe as well as the fact that the
pipe did not
go down to the river when he inspected the property. His evidence was
confirmed by Mr Tobias.  Dr Ofer was also
questioned about his
expertise in road construction during cross examination.
[138]
Dr Ofer had testified that at the junction between the west side of
P. and south side of I. Road which are the natural lowest
point of
alignment of the three roads, the single culvert
[66]
was
constructed on the southwest side of P. Ave which was the downhill
side. The drain channel should have been on the uphill side
of the
road. This would have also prevented wear and tear, erosion and
flooding of the road.  There were no other culverts
that
transferred water in P., S. or I. save for this single culvert.
[139]
The only evidence presented to counter this allegation by the
defendant is to be found during the cross examination of Mr
Tobias
regarding the effect of the road camber on runoff water. The tenure
of this cross examination gave an impression that in
view of the
camber on the road which allowed run off water on both sides of the
road, the installation on the southern side was
not necessarily
incorrect and/or that the installation of the drainage pipe on the
northern side was not an imperative as made
out by the plaintiffs.
Because it was accepted that from the contour map, from the corner of
I. and P. where water deposited towards
the river, the slope is
steeper than the slope from corner of I. and P. and towards where the
plaintiffs’ old dwelling was
as well as the increased volumes
of water, I am of the view that a stronger rebuttal of this evidence
by the defendant was necessary.
The failure to do so means that the
plaintiff’s criticism must stand.
[140]
The second and third aspects relate to the criticism of the size of
the drainage pipe and the fact that it was not constructed
to run to
the river. I deal with both these issues simultaneously given the
interrelated underlying facts relevant in respect of
each of the
complaints. The plaintiffs argued that had the pipe been installed to
run to the river instead of depositing water
into Mr Green’s
property in the first instance, it would have been cost effective and
the damage would not have occurred.
[141]
Even though Mr Squirra for the defendant was not involved with the
construction and design of the initial storm water drain.
Definitive
evidence of the thinking that went into the design as well as the
parameters used was not made available.   He
testified
that the defendant
was
allowed to have a sheet flow
[67]
of 150mm over an owner’s property in the event of bigger
storms. The reason why a bigger pipe that went directly to the river

was eventually constructed was to appease Mr Green who refused to
accept water flow on his property. Cost constraints had been
a factor
in the construction of the initial drainage system. His evidence was
that there had been no need for a Rolls Royce when
a Volkswagen would
do.
[142]
All the witnesses agreed that to determine the adequacy of the storm
water drainage system depended on other factors, namely,
the slope of
the road, velocity of water at the lowest point as well as the amount
of rain.  As already stated above, however,
the topography and
the gradient of the area was known. There was no dispute that the
surfacing of the roads on its own would result
in increased volumes
of water. The defendant argued that this could not be determined due
to the absence of scientific data.
[143]
The notes with regards to the update on the construction project
received and testified to by Mrs Lane reads as follows:
“
Along
P. Rd it is intended to insert three pipes under the road to carry
water towards the river. This may require disbursing water
onto
certain properties more than one property to reduce the need to
disburse water flowing from one property where there is a

servitude”.
[68]
[144]
I part ways with the defendant’s view that the absence of this
scientific data renders the issue indeterminable, therefore
puts paid
to the claim of negligence. I have already accepted the explanation
of the water flow by Dr Ofer and that the defendant
had failed to
take this to account. It seems to me that tarring of the roads
introduced with it urban features to an otherwise
zoned agricultural
area.  The impression created in the update note on the
construction project is that increased volumes
and the need to spread
the flow of water onto other properties was anticipated. There is no
evidence why a single culvert instead
of the three envisaged was not
installed.
[145]
With regards to the failure by the defendant to construct a pipe that
deposited water directly to the river, it is essential
that I deal
with the defendant’s approach to the evidence. The defendant
argues that the plaintiff’s experts had based
their opinions on
a fact they did not persist with at the trial. The SRK Consulting
report relied on by the experts stated that
water would have gone
down the access road to stand 58 to the river. The defendant also
relies on Dr Ofer’s report that it
was hydrologically possible
that some of the water could have flown via the entrance road of
plots 58 and 59 due to the absence
of an adequate storm water
drainage. In addition, the defendant submits that the plaintiffs’
witnesses had based the point
where the water was deposited on Mr
Green’s property on speculation and the plaintiff’s
witnesses had no issue with
the point where the channel daylighted
onto Mr Green’s property. This argument does not address the
fundamental question
of where the water would flow once deposited. In
my view, it is not the point of deposit alone that determines this
issue.
[146]
As stated in
Nicholson
v Road Accident Fund
[69]
expert
opinion does not usurp the role of the court in assessing the
probabilities of a case, and further that the expertise of
a witness
should not be elevated to such heights that sight is lost of the
court’s own responsibilities and capabilities
in drawing
inferences from the evidence inferences from the evidence
[70]
.In
this case, Judge Wepener stated that:
"
It is the function of the court to base its inferences and
conclusions on all the facts placed before it".
[147]
The nature of the issues required that the
defendant places its own evidence of what was considered.  The
context of the evidence
of where the pipe daylighted cannot be viewed
in isolation. This approach by the defendant fails to account for and
offer explanation
for the alleviation of the flooding that occurred
subsequent to the construction of the second drainage system. It is
also significant
to the court that the defendant did not call
witnesses who had direct knowledge of the thinking that went into the
design and the
construction of the initial drainage system.
[148]
From the evidence as a whole, the inference and conclusion that can
be drawn is that had the storm water drainage pipe of
an appropriate
size been constructed in an appropriate position to deposit water
directly to the river, the flooding was of the
plaintiff would not
have occurred.  An inference is inescapable that in the quest to
cut costs, the defendant installed a
pipe that was inadequate and or
inefficient.
[149]
The reasoning offered by Dr Ofer on the probable cause of the
flooding on the property together with the factual evidence
presented
with regards to the initial storm water drain finds favor with the
court. The plaintiffs have succeeded in establishing
on the balance
of probabilities that the initial storm water drain was inadequate,
ineffective and not efficiently constructed.
PRESCRIPTION
[150]
The last question for determination relates to the special plea and
defence of prescription on
Section 12
(3) of the
Prescription Act 68
of 1969
and a plea of non-compliance with Section of the ILPACOS
Act.  Determination was held over to the end of the trial
proceedings.
In respect of non- compliance, the defendant
submit that the plaintiff failed to give timeous notice to the
defendant. In resisting
the special plea, the plaintiffs dispute that
the claim has prescribed. The plaintiffs also resist the allegations
of non-compliance
with ILPACOS, and as an alternative, seek
condonation in thereof.
[151]
It is common cause between the parties that action commencing
proceedings was instituted on 14 November. The letter giving
notice
of the claim to the defendant was served by the Sheriff 20 September
2011. The plaintiffs submit that this is not withstanding
that the
letter was dispatched to the sheriff on 24 August 2011.
[152]
The defendant relies on the evidence of Mrs Lane and submits that the
plaintiffs had constructive knowledge of the identity
of the debtor
and with reasonable care, ought to have acquired the knowledge and
the facts from which the debt arose from at least
June 2011. The
defendant submits that the only change in the environment was the
construction of the road. The plaintiffs knew
as early as 2006 who
was responsible for this construction. The defendants also rely on
the fact that the plaintiffs had taken
the decision to demolish a
luxurious and valuable asset in 2008 which was implemented in 2009.
It argues that by an exercise of
due diligence, they would have
established the cause of waterlogging on the property.  The
defendant nevertheless accepted
that Dr Ofer on whom the plaintiffs
rely to establish the cause of the flooding and the causal link
between this and the road was
only instructed in 2013 after the
proceedings were instituted.
[153]
Based on Mrs Lane’s evidence, it was
only in January 2010 that the plaintiffs became aware that the
cosntruction of the road
might have something to do with the
waterlogging on the property.  The timeline of various steps
taken has already been dealt
with above. It was submitted on behalf
of the plaintiffs that the cause of the groundwater water was not
easily ascertainable,
and after seeking advice of lawyers, the issue
was not an easy one to explain.
[154]
Section 12(3)
of the
Prescription Act requires
states that a debt is
not deemed to be due until a creditor has knowledge of the debtor and
the minimum facts from which a debt
arose
[71]
.
Actual knowledge of the debtor means factual knowledge of the
debtor’s identity
[72]
.
The minimum facts have been held not to mean the full ambit or legal
conclusions or implications. In this regard, it is whether
the
plaintiffs had the material facts on which to institute proceedings.
In so far as the knowledge of the minimum facts
required are
concerned, the principle is that the minimum facts known must
nevertheless provide a justifiable and constitute a
complete cause of
action against a defendant.
[73]
However, not every piece of expert evidence is required to prove a
case based on negligence.
[155]
The onus lies on the debtor to show that the creditor either knew or
ought to have known about the existence of the debt by
exercising
reasonable care. With regards to constructive knowledge, this will be
imputed to a creditor who knew certain facts that
would have enabled
the creditor to establish the debtor’s identity
[74]
.
The defendants primarily rely on constructive knowledge.
[156]
The question is when it could be said that the plaintiff acquired or
had constructive justifiable knowledge of facts on which
to base a
complete cause against the defendant.
[157]
The plaintiffs were criticised for demolishing the property without
engaging experts notwithstanding that they were engaged
with their
insurers and were recorded to have also sought advice from Rand Water
Board. I have assessed their conduct against what
the witnesses
presented as a peculiar occurrence. Even though the second plaintiff
first heard that the new road might have something
to do with the
waterlogging in 2010, it could not be said that this knowledge
constituted justifiable facts. It seems to me that
for the purposes
of reckoning prescription and or non- compliance, the SRK Consulting
Report furnished to them in January 2011.
SRK Consulting undertook
investigation three (3) years after the property was demolished and a
few months after the construction
of the second storm water drain.
[158]
Mrs Lane testified that it took them time to understand the contents
and to consult with attorneys and counsel.  Both
parties agree
that the report was inconclusive as to the causal connection between
the tarring of the road, groundwater levels
and the waterlogging on
the plaintiffs’ property. It was submitted that the report
[75]
lead the plaintiff to acquire the knowledge of the potential
problems.  The plaintiff nevertheless proceeded with the action.

In my view, the defence of prescription must fail as the action was
instituted with the prescribed period when knowledge of the
facts
giving rise to the claim and the debtor were acquired.
[159]
What remains is the question of non- compliance with the ILPACOS
which requires that notice be provided within six (6) months
from the
date when the debt becomes due. Mrs Lane testified that institution
of legal proceedings was first scheduled for May 2011.
This would
have been approximately five (5) months from the date when it could
be said they had acquired requisite knowledge of
the debt and the
debtor as already found in respect of the prescription argument.
Given the principle that the minimum facts
required to give notice
and / or institute an action have been held not to mean the full
ambit or legal conclusions or implications,
it seems to me that the
decision to compute damages prior to giving the required notice
compounded the delay. This could have been
done after the requisite
notice was given. I am satisfied therefore that the notice was out of
time.
[160]
What remains is consideration of the application for condonation
which was brought in the alternative, should I determine
there was
non–compliance. The requirements are that the court must be
satisfied in terms of
Section 3(4)(b)
that the applicant relies on an
extant cause of action on the balance of probabilities.
[76]
Good cause explaining the delay as well as the absence of prejudice
to the defendant must be shown.
[160]
It is significant in my view as already held that the claim had not
prescribed. The time lapse at issue involves a short period
of no
more than one month.  Sight cannot be lost that the policy
considerations embedded in the requirements to give notice
to state
organs is the need to facilitate a proper investigation and
settlement of well-founded claims against the state in order
to limit
unwarranted litigation. It seems to me that there may be genuinely
unique cases as this one, where the defendant ought
not to lightly
rely on the formal defence as a matter of course.
[161]
In view of the time period involved, the genuinely unique
circumstances of this case and the fact that the claim had not
prescribed, a case has been made out for condoning the late filing of
the notice.
[162]
In the circumstances, the
plaintiffs have succeeded in establishing on the balance of
probability that:
[162.1]
there was a causal link between the tarring of the roads, the
construction of the initial storm water drainage system and
the water
logging on the property.
[162.2]
The defendant permitted the construction of an inadequate/
inefficient storm-water drain following the tarring of the roads
and
was therefore negligent;
[163]
In the result, I make the following order:
[163.1]
The defendant is liable to the plaintiffs’ damages to be
established in due course;
[163.2]
The plaintiff’s failure to provide timeous notice of the claim
is
condoned.
[163.3]
The defendant is ordered to pay the costs of the suit.
-------------------------------------------------------
SIWENDU
J
JUDGE OF THE
HIGH COURT
DATE
:
…………..…
Heard
on: 17 October 2016 – 21 October (part heard)
Argument
Heard on: 16 February 2017
Delivered
on:19 July 2017
Counsel
for Plaintiff: Adv. Kairinos SC
Counsel
for Defendant: Adv. Charles Thompson
[1]
Bundle C2, an aerial photograph, depicts the location and layout of
the property.
[2]
S. Road, I. Road and P. Avenue.
[3]
Notice
Bundle, p53; P 56 and Bundle D; pp45 and 46
[4]
Bundle C2
[5]
Camber of a road means that the road was raised higher at the centre
but with the side edges lower to enable the water to run
off
quickly.
[6]
A
V- Drain created from a
compacted
structural layer of the road.
[7]
Evidence of Mr Squirra and Mrs Lane in part.
[8]
Surface and tarred are used interchangeably.
[9]
Daylighting means the point where storm water pipe surfaces to
discharge water
[10]
Evidence of Squirra.
[11]
Municipality
contributed R450k; p12. I. Update 7
[12]
Bundle A p41 - 44 shows photographs of damp walls and of water on
the ground as well as water up the wall.
[13]
Bundle A p 16
[14]
Bundle A p 98
[15]
Bundle A p 73
[16]
Bundle C pp C 27, C 39 and C 34
[17]
Pages 99 - 101 documents email exchange including that of Manager
Roads Municipality
[18]
Bundle B p 101 - 131
[19]
Dr Ofer’s Report in Bundle D Expert
[19]
p 85 - 88
[20]
He had initially referred to a 350mm pipe but was corrected in
evidence
[21]
Exhibit D p 91.
[22]
Referred to as the fifth hole in his report.
[23]
Alluvium is material sediments caused by flooding of the river.
[24]
Hill-wash is when rain floods the property, it carries with it soil
which settles at the bottom.
[25]
Figure
Between
Plot 58 and 59 at the end of the brick boundary wall along the mash
fence.
[26]
Bidden is a geofabric with fine holes which block movement of soil
particles but allows water to sip through.
[27]
Geological Map; p91.
[28]
Dr Offer referred to this clay soil as K2m, alluvium material and
hill wash.
[29]
Exhibit
D
47 p91.
[30]
Exhibit F Joint Minute of Experts.
[31]
In Figure 3 he drew in pink (“Y”).
[32]
Expert Bundle D2, p134
[33]
Bundle D; p32
[34]
Para 2.8
[35]
Para 2.10, page 33
[36]
Bundle
D;
P34
Tobias Expert Report Para 3.4 and Para 3.5
[37]
Even though there was a difference in terminology as in his view, a
camber is a slope that ensures that as one drives one does
not slide
as the one side of the road slopes higher than the other side.
The
defendant is of the view that what he had described was a cross
-fall was different from that of the defendant. The witness
was
adamant that a fall across the road can mean a camber as well.
[38]
Camber according to the defendant is when a road is built with a
curve high up in the middle of the road and sloping on both
sides.
The Expert used Cross fall and camber interchangeably.
[39]
The
term d
ay-light
means the point where channel comes from underground onto the
surface so there is “daylight” for whatever
comes out of
the channel.
[40]
Manual for design of Roads and Storm Water and other Municipal
Infrastructure
[41]
Sheet flow means an over flow of water over a property after water
has filled up in road reserve or channels and/ or pipes installed.
[42]
Report
Page 106 paragraph
2.2
[43]
Report page 106 at paragraph 2.4 (a)
[44]
Measurement of saturated hydraulic conductivity at a locality with
available groundwater level in measured layer is best operated
by
using the
auger
hole.
[45]
Photograph
No
20 Fig 6.1
[46]
Conceptual
Model D2 Page 126 of the Paginated Bundle
[47]
F
igure
8.4 P 22 of Trotsky Report.
[48]
Bundle
D1 P 85 of Dr Ofer’s Report
[49]
See
H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty)
Ltd
2001 (4) SA 814
(SCA) at 820E-G para 13; Joubert, The Law
of South Africa (LAWSA), second edition, 8
part 1
at 4 and Boberg
The Law of Delict Volume 1,Juta at 24.
[50]
2010(6)
SA 83 at par 22-23
[51]
Plaintiffs Heads of Argument Paras 138 to 142
[52]
Defendant’s Heads of Argument Para 90
[53]
2000(3)
SA 1049 SCA
[54]
1967
(4) SA 527 528D
[55]
Schneider NO and others v AA and Another 2010(5) SA WCC
at
paragraph 211J-212B,
[56]
1990
(1) SA 680
(A) at 700 E-I
[57]
MBH
1976 (3) SA 352 (A) 371 G-H
[58]
Page 116 paragraph 4.4
[59]
Page 127 of Trotsky Report para 8.1.1
[60]
Page 128 at Auger Hole 5
[61]
Trial
Bundle 2;
Figure
2
[62]
Page
126 Conceptual Site Model from
Auger
hole AH2 to AH7
[63]
Page 139
[64]
200
SC(HL) 77
at 89 D-E
[65]
Linksfield
v
Michael
(??)
at
241 G - 242 B.
[66]
A
cu
lvert
is pipe installed in the road into the ground
[67]
Sheet flow means an over flow of water over a property after water
has filled up in road reserve or channels and/ or pipes installed.
[68]
Bundle A page 10 I. Update 3 from the Municipality. Para 3 regarding
“some aspects of the project”:
[69]
(11453/2007)
2012 SGHC (unreported)
[70]
S v Huma 1997(4) SA 766 and Holtzhauzen v Roodt
[71]
Fluxmans
v Levenson
[2016] ZASCA 183
Para 42
[72]
Sane J Prescription in South African Law (LexisNexis -Service Issue
19) 2012 para 2-65-3-82
[73]
Links
v Department of Health, Northern Province
2016 (4) SA 414
CC
[74]
Gericke v Sack
1978 (1) SA 821
A
[75]
Bundle D1 Page 1 to 9
[76]
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) Para
8-16