Pappalardo v Hau (63/08) [2009] ZASCA 160; 2010 (2) SA 451 (SCA) ; [2010] 2 All SA 338 (SCA) (30 November 2009)

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[2009] ZASCA 160
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Pappalardo v Hau (63/08) [2009] ZASCA 160; 2010 (2) SA 451 (SCA) ; [2010] 2 All SA 338 (SCA) (30 November 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 63/08
GIANFELICE
PAPPALARDO Appellant
and
GARY
HAU Respondent
Neutral citation:
Pappalardo
v Hau
(63/08)
[2009] ZASCA 160
(30 November
2009).
Coram:
STREICHER, HEHER
JJA, HURT, LEACH
et
GRIESEL AJJA
Heard:
5 NOVEMBER 2009
Delivered:
30 NOVEMBER 2009
Summary:
Neighbour law ─
drainage of rainwater ─ rights and obligations of neighbouring
owners in urban environment ─ whether lower
owner obliged to accept
rainwater flowing onto his property from higher lying neighbour ─
judgment in
Williams v Harris
[1998] ZASCA 51
;
1998 (3) SA 970
(SCA) considered and discussed ─ lower owner only
obliged to accept 'natural flow' ie flow across boundary which would
have occurred
before development of urban erven ─ higher owner
seeking to enforce right obliged to prove what the 'natural flow'
was.
___________
___________________________________________________
ORDER
______________________________________________________________
On appeal from: South Gauteng High Court (Horn J sitting
as court of first
instance).
1. The appeal is upheld with costs.
2. The order of the court below is set aside and the
following order substituted therefor:
(a) The defendant is granted absolution from the
instance.
(b) The plaintiff is ordered to pay the defendant’s
costs, including the costs of the expert witness Korsman.
______________________________________________________________
JUDGMENT
______________________________________________________________
HURT AJA (STREICHER, HEHER JJA, LEACH et GRIESEL AJA
concurring):
[1] The respondent instituted action against the
appellant in the South Gauteng High Court, seeking a declaratory
order to the effect
that the respondent was entitled to insert
certain drainage pipes into a boundary wall erected by the appellant.
The respondent’s
complaint was that the wall was acting as a dam to
rainwater on the respondent’s property, causing flooding of a
sector of the
property. The appellant’s opposition to the claim was
unsuccessful, Horn J granting a declarator in the terms sought. The
appellant
appeals against the judgment with the leave of the high
court.
The Setting
[2] The appellant and the respondent own adjoining erven
in a township development known as Waterford Estate in the municipal
area
of Sandton. Waterford Estate is an ‘upmarket township’ which
was apparently established in about 1996. There is controlled access

to the Estate, the streets are all macadamized and reticulated
electricity, water, stormwater drainage and sewerage systems have

been installed in keeping with the customary requirements for modern
township developments. The respondent’s property, erf 945,
lies to
the south of the appellant’s, which is erf 944. The properties both
slope down from south to north so that erf 945 is
at a higher level
than erf 944, the total fall over each property being of the order of
a metre. Each property is flanked on the
east by a street called
Calleto Crescent. The common boundary is the northern boundary of erf
945 and, accordingly, the southern
one of erf 944. There is a fall of
the order of 600mm from west to east in the vicinity of the common
boundary. The area of erf
945 is approximately 800 square metres
while that of erf 944 is about 700 square metres.
[3] It is common cause that when the parties acquired
their respective properties, no building had taken place on the
Waterford
Estate. The appellant built on his property before the
respondent. In addition to his residence, the appellant constructed a
boundary
wall along his common boundary with erf 945. This wall, to
which I will refer simply as ‘the boundary wall’, was
approximately
2 metres high and traversed the length of the common
boundary from west to east. Some time after the appellant had
completed building,
and during the latter part of 2003, the
respondent constructed his residence. As well as the house itself, he
built walls on the
western and eastern sides of erf 945 and
embellished his side of the boundary wall with a series of decorative
arches. In the space
between his house and the northern boundary wall
he built a swimming pool which was surrounded by paving and which
occupied about
a third of the total distance between the eastern and
western boundaries. Judging from the scaled site plan of the
property, I
think it is safe to conclude that at least seventy
percent of the site is covered by buildings, paving and the swimming
pool. Cultivated
gardens and lawns cover the remainder.
History
[4] During December 2003, the respondent noticed that
rainwater was gathering in the north-western sector of his property
and damming
up against the boundary wall. The respondent discussed
this problem with the appellant and suggested that the boundary wall
should
be breached in some way to allow this rainwater to drain off
onto the appellant’s property. There was a conflict of fact, in the

evidence, about what transpired during this discussion but, on 27
January 2004, the appellant’s attorneys addressed a letter
to the
respondent, warning him that any attempt to breach or otherwise
interfere with the integrity of the boundary wall for the
purpose of
discharging water onto erf 944 would be resisted. The appellant’s
contention was that the respondent’s building
operations had
resulted in an increase in the flow of rainwater draining northwards
off erf 945 and that the appellant was not
obliged to accept or to
deal with it. The respondent instituted action against the appellant
in August 2004, claiming a declaratory
order to the effect that the
respondent was entitled to insert a series of drainage pipes into the
base of the boundary wall at
ground level and at sub-surface level to
allow rainwater to flow from the respondent’s property onto the
appellant’s. The respondent’s
contention was that the appellant,
as the owner of the lower-lying property, was obliged to accept such
water.
1
In his plea, the appellant denied that the water which the respondent
sought to discharge onto his property would have flowed there

naturally. He contended that considerations of practicality favoured
an arrangement whereby the respondent discharged excess rainwater

directly from erf 945 onto Calleto Crescent, referring in this regard
to s 13(2) of the Sandton Town Planning Scheme, 1980 (to
which I
shall make detailed reference later).
[5] Having heard a fairly considerable amount of
evidence (and, no doubt, argument) on the matter, the learned judge
in the lower
court stated his view of the law to be applied to this
sort of situation in explicit and unequivocal terms:
‘
It is common cause that water
will flow naturally from the [respondent’s] property to the
[appellant’s] property. The [appellant]
as the lower lying property
owner is obliged to receive natural flowing water from the
[respondent’s] property – there can
be no argument with that.
. . . .
In my view
Williams
v Harris
[1998] ZASCA 51
;
1998
(3) SA 970
(SCA) not only reiterated the common law principle that a
lower lying owner must receive excess natural water from the higher
lying
owner, it also, by implication, underlined the principle that
each case must be decided on its own facts. I also believe that plain

common sense should play a role. In a case such as this where a
person erects an obstruction which prevents the natural flow of
water
it is only fair to expect that such a person will take the necessary
steps to avoid the accumulation of water caused by such
obstruction.’
[6] If only the law was so uncomplicated! The basic
principle is, indeed, captured in the
actio
aquae pluviae arcendae
2
of Roman times. But even in those ancient
days it was found necessary to limit the lower owner’s obligation
to accept water flowing
from his more elevated neighbour by excluding
any increased flow arising as a result of ‘artificial works’ (ie
other than those
arising from ordinary agricultural activities)
carried out on his property by the latter. As the Roman Law was
adopted and modified
into its Roman Dutch form, the limitations and
qualifications to the basic rule had, perforce, to become more
detailed and sophisticated
for the purpose of making provision for
such matters as urban development and altered living conditions.
Writers such as Voet,
3
Grotius
4
and, later, Van Leeuwen
5
reported distinctions between rules for the rural (‘rustic’) and
the urban environments. They referred to a number of servitudes
that
were customarily encountered as between property owners in rural
areas and a number of different servitudes customarily encountered
as
between neighbouring owners in the urban setting. An examination of
these servitudes makes it clear that they were necessary
to regulate
the relationship between owners of neighbouring properties insofar as
coping with water flow and drainage were concerned
and that they were
used to vary or modify the common law rules which would otherwise
apply. It also appears that, in various areas,
probably the
equivalent of the municipal areas of modern times, the ‘basic rule’
that the lower owner should accept the natural
flow of water from the
higher property had been modified.
6
Judging from the nature of the ‘urban servitudes’ discussed by
Voet and Grotius, they had undoubtedly been formulated for the
purely
practical purpose of catering for the restricted space and
concentrated building development that characterised (and still

characterise) the urban environment. It is not the purpose of this
judgment to consider these early common law rules, and the water

servitudes which modified them, in any detail. It suffices for
present purposes to say that by the time Roman Dutch Law became
our
Common Law, a distinction had already been drawn between the rights
and obligations of neighbours in regard to the regulation
of water
flow between their properties in the rural context on the one hand
and the urban context on the other. There were differences
of opinion
amongst the writers as to what properties were to be treated as
‘rustic’ (or ‘rural’) as opposed to ‘urban’.
But the
proposed distinction was a subtle one, and it was generally accepted
that the so-called ‘urban servitudes’ applied
where dwellings
were involved and the rustic ones applied to agricultural or larger
tracts of cultivated property.
7
[7] The reported decisions at the end of the nineteenth
century and at the beginning of the twentieth mention this
distinction but
always as a qualification to the basic proposition
that the lower owner is obliged to accept the natural flow of water
draining
from the property of the higher neighbour.
8
[8] In
Bishop v Humphries
1919 WLD 13
, Gregorowski J adopted a practical approach to the
problem of rainwater disposal in the urban context. He pointed out
that the
very nature of the development of the urban properties with
which he was concerned would necessarily alter the natural flow of
the water from the one property to another. He described, in some
detail, the irreversible changes which development of an urban
site
would cause to the natural lie of the land, and, accordingly, to the
‘natural flow’ of water traversing it.
9
‘
The water can no longer flow
as it used to flow before buildings were erected and fences and other
obstructions interposed. It would
be perfectly impossible to restore
the surface as it was before it was interfered with, and let the
rainwater run off as it was
accustomed to do. When it was in its
natural state the surface being a slope the water never accumulated,
but ran freely off westwards
and northwards . . .. When buildings
were put up extending over about half the surface of the stands with
roofs collecting the
water, the natural arrangement for the flow of
the water was further disturbed and rendered impracticable. There
would be more
water to be got rid of than before and the water would
have been more concentrated . . . the water coming from the roof
comes in
a concentrated form, hence the general doctrine has been
that an owner cannot throw the water from his roof on to the
adjoining
neighbour’s land, whatever the levels may be, unless he
has a
servitus
stillicidii recipiendi
.
Every owner has to make some provision for the water coming from his
roof and to provide against such water falling on his neighbour’s

land and causing damage and inconvenience there. Similarly he cannot
let the water fall from his own roof on to his own land and
claim the
right to lead it through an aperture on to his neighbour’s land.
This would not be a natural flow of water, but it
would be an
artificial discharge operated by the hand of man.’
As a general proposition, the learned judge went on to
say:
10
‘
The fact is that when land is
sold in small building plots, a state of things is created and
contemplated which puts an end to a
large extent to the natural
servitude
11
which previously existed as regards the water which falls on the
plots. Each owner puts up a building which covers a substantial
part
of the plot. He places an impervious surface over the naturally
porous surface of the soil. He accumulates the water thereon.
He
alters the natural surface of the rest of the area of his plot by
paving it or by locating temporary structures thereon or digging
it
up, and thereby annihilates the natural arrangement of the soil.’
And, finally, at the passage bridging pages 17 and 18:
‘
The applicant has altered all
the old conditions existing on this stand while it was virgin soil
and in a state of nature and it
is quite impossible for him to throw
a burden on the adjoining stand which is based on the assumption that
his stand has preserved
rights which he himself has put an end to by
his own constructions on the property.’
[9] There are, in my view, two important features of the
passages which I have quoted above. The first is the emphasis on the
‘natural
flow’ as referring to the manner in which the water
would have flowed, both as to quantity and locality, from the one
property
to the other over the land in its undisturbed state. It
seems clear that, in coming to the conclusions to which I have
referred
earlier, Horn J, in the lower court, paid no heed to what
may be called the ‘original pattern of flow’ from erf 945 to erf
944. Certainly none of the witnesses who testified before him had
endeavoured to establish what this pattern of flow was or must
have
been, other than to say that the general direction of flow would have
been from south to north across the common boundary.
[10] The second aspect is the particular emphasis placed
on the consideration that the upper owner has no ‘natural right’,
merely
as upper owner, to concentrate the flow of water at a
particular point or at particular points. Although the quantity of
water
thus discharged may be equal to that which would have crossed
the boundary if the land had been undisturbed, the lower owner would

nevertheless be called upon to cope with a pattern of flow which
would not naturally have occurred. The upper owner can only impose

such a burden on his neighbour if there exists in his favour an
express servitude, whether acquired by registration, prescription
or
by agreement, entitling him to do so. Although Horn J considered the
practicality of the installation of a system of drainage
pipes in the
boundary wall, he appears to have overlooked the fact that those very
pipes would act as conduits for a concentrated
flow of water at the
points at which they emerged from the wall on the appellants side –
an arrangement which the respondent
had no right, without a
servitude, to impose on the appellant.
[11]
Bishop
was followed in 1940 by Millin J in
Green
v Borstel
1940 (2) PH M 89. The facts of that
case were on all fours with those now under consideration. The
properties involved were in the
urban area of Orange Grove,
Johannesburg. The owner of the lower property built a concrete wall
on his boundary to prevent stormwater
flowing onto his property from
the more elevated property of his neighbour. The latter sought an
order compelling the lower owner
to demolish the wall, contending
that by constructing it the lower owner had unlawfully obstructed
the natural flow of water from
the upper property. Millin J held that
when a township is created, the division of the ground into small
plots and the erection
of structures on them would ‘cause the storm
water to flow entirely differently from the way in which it would
have flowed originally’.
He dismissed the application because the
upper owner had failed to prove ‘that the water whose flow was
obstructed by the wall
was water which would have flowed on to the
[lower owner’s] land even if no buildings had been erected, and the
original contours
of the ground not interfered with.’
[12] A similar approach was adopted by Beadle J in
Barklie v Bridle
1956
(2) SA 103
(SR).
He,
too, referred to
Bishop
with
approval, although he mentioned a possibility that the law may have
been ‘too broadly’ stated in that case.
12
At page 109 he said:
‘
In my view, if the owner of
an urban tenement, by the lawful development of his stand, increases,
concentrates and alters the natural
flow of water from his stand he
is not entitled to discharge that water on to his lower neighbour’s
stand at a point which may
be most convenient to himself but most
inconvenient to his lower neighbour. He must take reasonable steps to
ensure that by the
discharge of that water no injury is done to his
lower neighbour; and if, by use of reasonable measures, he can
discharge that
water on to the adjoining street so that the water may
be harmlessly drained down that street, then I consider he should do
so.’
[13]
Barklie
was
the subject of comment by Prof. Scholtens in the 1956
Annual
Survey of South African Law.
13
The learned professor expressed the view that the decision was
correct but that it could have been arrived at more directly by

reference to Grotius.
14
‘
Direct authority is provided
by Grotius, 2.34.16, who says with regard to urban tenements (Lee’s
translation):
“
For by the common law
everyone must lead his water on his own land, or over his own land
out to the street”.
This rule exactly covers the
facts of the present case. It is submitted that the decision in
Bishop’s
case correctly states the Roman-Dutch law although a qualification is
needed where the natural situation makes it impossible to
discharge
rainwater on to a street or road.’
[14] That brings me to the decision of this court in
Williams v Harris
[1998] ZASCA 51
;
1998
(3) SA 970
(SCA) to which Horn J referred in his judgment and on
which counsel for the respondent relied heavily in support of his
argument
before us. The decision is the first, as far as I am aware,
in which this court was called upon to deal with a ‘water dispute’

between residential neighbours in the urban context. Coetzee J, who
had given the judgment in the court of first instance,
15
had, on the authority of
Bishop
,
Green
and
Barklie
,
expressed the view that the very creation of a township resulted in
an irreversible alteration of the ‘natural land’ and that
there
could be no application of the principle that higher landowners were
entitled as of right to discharge rainwater onto the
property of
their lower neighbours. In coming to this conclusion Coetzee J had
referred, also, to Grotius 2.34.16 and to the discussion
of
Barklie
by Prof. Scholtens in the 1956
Annual Survey
.
At the commencement of his judgment on appeal, Marais JA emphasised
16
that he felt constrained to embark on an analysis of the common law,
without having had the benefit of full argument. The necessity
for
doing this, he said, was to decide whether there was substance, in
law, in the dispute on the papers as to whether the lower
property
owner was obliged to tolerate any flow of water across the common
boundary onto her property.
17
[15] After a detailed investigation of the reported
cases and comments by certain writers, Marais JA concluded that the
right of
the owner of higher lying property to discharge the ‘natural
flow’ of rainwater onto the property of his lower lying neighbour

still exists even in urban environments. In coming to this conclusion
the learned judge pointed out that this right was not denied
in
Bishop, Green
and
Barklie
, but that in
each of those cases it had been held as a fact that the topography of
the ground had been interfered with in the course
of development of
the respective stands and that there was no proof that the water
which formed the subject matter of the dispute
was flowing in its
‘natural pattern’.
[16] In coming to this conclusion Marais JA made
specific reference to the comment on
Barklie
by Prof. Scholtens and the reference to
Grotius 2.34.16. In this connection he said:
18
‘
I explained earlier in this
judgment why I do not consider that
Bishop’s
case purports to
support the notion that even rainwater which would have flowed
naturally on to a lower owner’s property must
be prevented from
doing so by the upper owner. I think it is reasonably clear that
Grotius is not speaking of naturally flowing
rainwater but of water
(whether it be rainwater or not) which has been artificially
collected by the upper owner and which is sought
to be discharged on
to the lower owner’s property. Such an interpretation harmonises
the passage with another passage in Grotius,
namely 2.35.17 in which
he said:
“
By common law anyone may let
his water flow in its natural course, from which comes the old
proverb ‘if water hurts you, you may
turn it away’.”
19
(
Lee’s
translation). The competing interpretation would result in
attributing a self-contradiction to Grotius – a highly unlikely
postulate.
I am aware that the first passage cited occurs under the
rubric of urban servitudes and the second under that of rustic
servitudes
but I do not think that Grotius was confining his
observation in the latter to rural situations. If it was indeed so
that a fundamentally
different principle applied in urban situations
I would have expected Grotius to pointedly draw attention to the
contrast.’
I am unable to agree with Marais JA’s reason for
interpreting and qualifying the passage as he did. It is clear that
the whole
context of chapters 34 and 35 of book 2 is one in which the
learned writer was stating why the customary servitudes had become
necessary – ie that they were aimed at alleviating the burdens
thrust on owners by the common law.
[17] As I understand the issues formulated by Marais
JA
20
for reference to oral evidence before the court a quo, those in
respect of the water dispute contemplate the possibility that the

court hearing the evidence might effectively order the lower owner to
accept the ‘historical natural flow’ and no more. Since,
on the
basis of the decisions in
Bishop, Green
and
Barklie
the
determination of the ‘natural flow’ in the urban context is
rendered virtually impossible by the very establishment of
a modern
urban township, it is difficult to conceive of the form which a court
order could take for the fair enforcement of the
higher owner’s
right in this regard. Plainly the order could not relate to the
quantity of ‘natural flow’ only, for immediately
the cogent
objections to concentration of the theoretical natural flow mentioned
in
Bishop
21
and
Barklie
22
would apply. Furthermore, proof of the
natural flow after development has taken place would almost
invariably be a very complicated
(and prohibitively costly for that
reason) exercise.
[18] There is accordingly much to be said for the
adoption, as correctly reflecting our common law, of the judgment in
Bishop
with the
qualification suggested by Prof Scholtens in the passage quoted in
para13. However it is not necessary in this case, for
reasons which
follow, to go that far.
[19] It is common to all the decisions which I have
discussed, even that in
Williams,
that
at best for the upper owner, his right only extends so far as to
require the lower neighbour to accept the ‘natural flow’.
Where,
as in this case, the upper owner sues to enforce this right, it is
incumbent upon him, at very least, to prove the amount
of water
constituting the ‘natural flow’.
23
In this regard counsel for the respondent tried to persuade us that
the onus
was on the
appellant, who was responsible for causing the problem on the
respondent’s property, to establish the amount of the
natural flow
as the upper limit of his obligation. But there is clearly no
substance in this contention. It flies in the face of
the decision in
Green
and there is no
suggestion whatsoever in
Williams
that
the approach of Millin J might be incorrect in this respect. There
was no attempt by the respondent, in the course of the trial,
to
establish what the amount of the ‘natural flow’ was. Indeed, it
would probably have been a task beyond the capabilities
of the expert
witness called by the respondent. In the result, the facts being on
all fours with those in
Green,
the respondent’s argument must fail for the same reason as the
plaintiff’s did in that case.
[20] There remain two further aspects on which I think
it is necessary to comment. The first relates to the effect of s
13(2) of
the Sandton Town Planning Scheme on the rights and
obligations of the parties. It appears to have been common cause that
the provisions
of the Scheme applied to the properties in Waterford
Estate. Section 13(2) reads as follows:
‘
Where, in the opinion of the
local authority, it is impracticable for stormwater to be drained
from higher lying erven direct to
a public street, the owner of the
lower
24
erf shall be obliged to accept and/or permit the passage over the erf
of such stormwater:
Provided that the owner of any
higher lying erf, the stormwater from which is discharged over any
lower lying erf, shall be liable
to pay a proportionate share of the
cost of any pipeline or drain which the owner of such lower lying erf
may find necessary to
lay in order to drain stormwater from his
property.’
It is of interest to note the similarity between these
provisions and those suggested by Prof Scholtens in the
Annual
Survey
article. But apart from that, it seems
clear that what is clearly implied by the subsection is that, where
it is practicable to
drain stormwater onto the street, the owner must
do so. However, Horn J dealt with this contention in the following
terms:
‘
I fail to see how this
provision can be applied to the facts of this matter. It was after
all the [appellant] who raised this aspect
and, if anything, it was
for the [appellant], should he have felt that the proviso applied, to
prove the applicability of the town
planning provisions to this
matter.’
I have premised my reference to the Town Planning Scheme
on the basis that it was common cause between the parties that s
13(2)
applied. If it did not, then
cadit
quaestio
. In argument, counsel for the
respondent did not (as I understood him at least) try to contend that
the Scheme was not applicable.
What he submitted was that the
appellant bore the onus of proving that the local authority did not
hold the opinion referred to
in the subsection. This is an unduly
contorted way of looking at the provision. As I have already
indicated, the subsection is
based upon an assumption that water will
be drained onto the street. An owner wishing to drain it through some
other course, for
instance his neighbour’s property, must obtain
the opinion of the local authority that there is no other practical
means of coping
with the stormwater before he acquires the right to
do so. There is accordingly no substance in the assertion that, in
the absence
of any evidence of the local authority’s view on the
matter the respondent’s contention must fail. In fact it was common
cause
between the experts for both sides that the respondent could
construct a sump in the north-west sector of his property and drain

the excess water from there to Calleto Crescent. The dispute about
this arrangement was focused on its cost compared to the cost
of
inserting pipes in the boundary wall and draining the water to the
street along the appellant’s southern boundary. But the
fact that
the latter arrangement would have been cheaper than the former hardly
assists the respondent. The issue is not one of
expense but of
‘practicability’. I should mention that the experts agreed that
if the respondent had installed the sump and
necessary piping to
Calleto Crescent before building his swimming pool and paving its
surrounds, the cost of such installation
would have been far less. In
my view the provisions of the Town Planning Scheme also operate in
favour of the appellant.
[21] The last aspect concerns the case which the
respondent attempted to develop concerning alleged non-compliance by
the appellant
with the provisions of the National Building
Regulations and their subsidiary provisions in the construction of
the wall. Respondent
and his expert witness referred to certain
regulations relating to the provision of drainage through certain
walls. There was a
dispute between the experts as to whether the
appellant was, in the circumstances in which he constructed the
boundary wall before
the respondent started to develop his property,
even obliged to provide drainage holes in it. The lower court did not
consider
the question whether on the basis of these regulations
alone, it should exercise its discretion to grant respondent relief.
Nor
do I think it would have been appropriate for the court,
especially on the limited evidence before it, to exercise such a
discretion
in the respondent's favour. This appeal will certainly not
operate as a bar to the respondent approaching the local authority to

complain about any transgression of the Regulations of which the
appellant may have been guilty and the regulations and the by-laws

will provide the remedy if the respondent's allegations are well
founded.
[22] In the result the appeal must succeed. I make the
following order:
1.
The appeal is upheld with costs.
2. The order of the court below is set aside and the
following order substituted therefor:
(a) The defendant is granted absolution from the
instance.
(b) The plaintiff is ordered to pay the defendant’s
costs, including the costs of the expert witness Korsman.
_______________________
N V HURT
ACTING JUDGE OF APPEAL
Appearances:
Counsel for Appellant: A Bester
Instructed by
Kuilman Mundell & Arlow c/o Matthew Kerr-Phillips,
Johannesburg
Webbers, Bloemfontein
Counsel for Respondent: A van der Merwe
Instructed by
Vos Attorneys c/o Whalley Van Der Lith, Johannesburg
Symington & De Kok, Bloemfontein
1
The Particulars of Claim were equivocal in that
they made reference to the requirements of the National Building
Regulations as
support for the specific declaratory relief sought.
However, in his opening address at the trial, counsel for the
respondent
(plaintiff) made it clear that ‘. . . the plaintiff
relies upon the common right that the lower lying property must
receive
the higher lying property’s water.’
2
Voet 39.3.2.
3
39.3.4.
4
The Jurisprudence of Holland
(Lee), II.34 and 35, especially
II.34.15 and 16; and II.35.16 and 17.
5
Censura Forensis
2.14.22.
6
Grotius
op cit
II.34.16; Van Leeuwen
loc cit.
7
There is a detailed and interesting discussion of
this aspect in C W Decker:
Simon van
Leeuwen’s Commentaries on Roman Dutch Law
(2
ed) at 289 – 290 and 305-309.
8
Eg
Austen Bros v Standard Diamond Mining Co Ltd
(1883) 1HCG
363, esp at 377-378.
9
At pp 15-16.
10
At p 17.
11
T
his term ‘natural servitude’ was used as a
convenient manner of describing the common law rights and
obligations of neighbours.
It is not to be construed as a ‘servitude
in law’. See:
Retief v Louw
(1874)
4 SC 165
at 174-175.
12
It is not clear, from the report, in what respects it may have been
suggested that the decision of Gregorowski J was possibly
‘too
broad’.
13
At pp 134-136.
14
Op cit
footnote
4, above.
15
Sub nom Harris v Williams
1998
(2) SA 263
(W).
16
At pp 981D and 984B-C.
17
The learned judge had pointed out that there were
a number of disputes of fact on the papers and that it was necessary
to decide
whether the view of the judge
a
quo
on this aspect had been correct
for the purpose of deciding whether the dispute concerning the
quantity of water involved should
be one of the issues referred back
to the lower court for the hearing of oral evidence.
18
At p 983G-984B.
19
I must confess that the link between the
principle and the proverb escapes me. The original version in Dutch
is 'dien water deert
die water keert'. Perhaps something was lost in
the translation, but it is of no moment as far as this judgment is
concerned.
20
At p 984.
21
At pp 17 and 18.
22
At p 109.
23
I stress that this would be the very minimum
which the owner would have to establish – his onus would
ordinarily be much more
complicated than this.
24
The copy of the extract of the Scheme put up as
an exhibit omitted the word ‘lower’, but the extract quoted by
Horn J in his
judgment, and the references in the Heads of Argument
to the section both include this word. The section would be
meaningless
without it and there can be little doubt that the
section in fact reads as quoted above.