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[2017] ZAKZPHC 4
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Pietermaritzburg & District Council for the Care of the Aged (PADCA) v Redlands Development Projects (Pty) Ltd and Others (5069/13) [2017] ZAKZPHC 4 (10 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
NOT
REPORTABLE
Case
No: 5069/13
In
the matter between:
PIETERMARITZBURG
& DISTRICT COUNCIL
FOR
THE CARE OF THE AGED (PADCA)
PLAINTIFF
and
REDLANDS
DEVELOPMENT PROJECTS (PTY) LTD 1
st
DEFENDANT
GLENN
ARTHUR
HESSE 2
ND
DEFENDANT
REDLANDS
ESTATE HOMEOWNERS ASSOCIATION 3
RD
DEFENDANT
ROWEST
PROPERTIES (PTY)
LTD 4
TH
DEFENDANT
REDLANDS
ESTATE HOMEOWNERS ASSOCIATION 5
TH
DEFENDANT
BODY
CORPORATE OF THE BERKELEY SQUARE SCHEME 6
TH
DEFENDANT
BODY
CORPORATE OF THE PARKVIEW LODGE SCHEME 7
TH
DEFENDANT
BODY
CORPORATE OF THE REGENTS LODGE SCHEME 8
TH
DEFENDANT
KIBE
PROPERTY (PTY)
LTD 9
TH
DEFENDANT
BODY
CORPORATE OF THE PARKLANE LODGE 10
TH
DEFENDANT
REDLANDS
HOTEL (PTY)
LTD 11
TH
DEFENDANT
CAMMIN
INVESTMENTS
CC 12
TH
DEFENDANT
JAMES
FREDERIC CROOKES
PALMER 13
TH
DEFENDANT
JANIS
ANNE
HESSE 14
TH
DEFENDANT
TRUSTEES
OF THE LANE REYNOLDS TRUST 15
TH
DEFENDANT
ERNA
MCLAREN 16
TH
DEFENDANT
TRUSTEES
OF THE LINDSAY
TRUST 17
TH
DEFENDANT
EDMUND
NORMAN ANDERSON & PAMELA
LEONIE
ANDERSON 18
TH
DEFENDANT
BODY
CORPORATE OF THE MAHOGANY COURT SCHEME 19
TH
DEFENDANT
BODY
CORPORATE OF THE SAFIRE HOUSE SCHEME 20
TH
DEFENDANT
IFOUR
PROPERTIES THREE (PTY)
LTD 21
ST
DEFENDANT
GERALD
AUBREY KATZ & CAROLINE FAY
KATZ 22
ND
DEFENDANT
BODY
CORPORATE OF THE MEWS
SCHEME 23
RD
DEFENDANT
WILLMEG
INVESTMENTS (PTY)
LTD 24
TH
DEFENDANT
TRUSTEES
OF THE MARTIN FLAVELL TRUST 25
TH
DEFENDANT
BODY
CORPORATE OF THE HIGHGATE MEWS SCHEME 26
TH
DEFENDANT
DAVID
ALEXANDER PETER SWAN & SUSAN JANE SWAN 27
TH
DEFENDANT
BODY
CORPOPORATE OF THE 3 HIGHGATE
DRIVE
SCHEME 28
TH
DEFENDANT
TRUSTEES
OF THE BASIL BUDKE FAMILY TRUST 29
TH
DEFENDANT
BAMBANI
PROPERTIES (PTY)
LTD 30
TH
DEFENDANT
BRIAN
MAGOR & BRONWYN
MAGOR 31
ST
DEFENDANT
RODNEY
PAUL
FINLAYSON 33
RD
DEFENDANT
Coram:
Kruger J
Heard
:
15 to 27 October 2016
Delivered:
10 January 2017
ORDER
1.
The action is dismissed with
costs.
2.
The costs shall include:
2.1 The costs of two
counsel where so employed.
2.2 The costs of
Defendant’s expert, Chris Brooker, including:
2.2.1
The cost of his expert report
2.2.2
All pre-trial consultations and inspections, inclusive of:
2.2.2.1
Consultations with the Defendant(s)
2.2.2.2
Inspections of the relevant properties
2.2.2.3
Consultation with Defendants’ counsel
and
attorneys
2.2.2.4
Consultation with Plaintiff’s expert;
2.2.3
Qualifying fees
2.2.4
Reservation fees
2.2.5
Travel and accommodation
2.2.6
Days fees for attendance at trial.
JUDGMENT
KRUGER
J:
[2]
The Plaintiff seeks
primarily to interdict the Defendants from allowing unattenuated
run-off of stormwater from their properties,
in excess of the natural
flow, from the said properties when they were in a pristine
condition. By agreement between the
parties the Plaintiff’s
claim for past and future damages and the determination thereof are
to be adjourned sine die.
[3]
The Defendants’
collective properties are situate in a private estate made up of
freehold properties, the infrastructure of
which is owned by the
Redlands Homeowners Association. (hereinafter referred to as “The
Redlands Estate”). The
Redlands estate was formerly one
undeveloped property. The property was developed into a
residential estate and business
park with a boutique hotel.
Access to the estate is controlled and security protected. The
roads within the estate
are all tarred. All stormwater gathered
within the estate is reticulated into a combined stormwater
reticulation and disposal
system. The stormwater which does not
flow into this system runs off the estate onto George MacFarlane Lane
from where it
finds its way into the Municipal system.
[4]
The eastern boundary of
the Redlands Estate is bordered by George McFarlane Lane.
Further to the east of George MacFarlane
Lane is a property owned by
Shanbar Investments (Pty) Ltd – viz portion 1 of erf 647 –
commonly referred to during
the trial as the “Briar Ghylls”
property. Adjoining the Briar Ghylls property on its eastern
boundary, is the
Plaintiff’s property – erf 3344
Pietermaritzburg – commonly referred to during the trial as
“Woodgrove”.
Running almost parallel to the
southern Woodgrove boundary is a canal along and in which stormwater
is discharged. (Hereinafter
referred to as the “Woodgrove
Canal”). Situate to the east of George MacFarlane Lane
and to the south of Briar
Ghylls and Woodgrove is portion 20 of erf
837. What is immediately noticed from the aforesaid is that the
Redlands Estate
and Woodgrove do not share a common boundary.
The properties are separated from each other by George MacFarlane
Lane as well
as by the Briar Ghylls and portion 20 of erf 837
properties.
[5]
The property –
portion 20 of erf 837 – is subject to a stormwater drain
servitude 3,05m wide in favour of the local
authority. This
servitude ends at the south western corner of Woodgrove. It is
here that one finds two large municipal
pipes, each 1m in diameter,
which discharges stormwater into the Woodgrove canal.
[6]
Mr Richard Logan, one
of the Plaintiff’s expert witnesses, described the layout of
George MacFarlane Lane. He described
the gradient as being
steep at the intersection of Old Howick Road and George MacFarlane
Lane. This gradient however flattens
out as one approaches the
Redlands Estate entrance. Of particular importance was his
testimony that the highest point in
George MacFarlane Lane is the
area opposite the entrance to the Redlands Estate. The gradient
thereafter falls in a westerly
direction towards Redlands Estate
boundary. The lowest point being in an area described as a
catchpit situate immediately
past the second entrance to the Redlands
Estate.
[7]
At the first entrance
to the Redlands Estate and along George MacFarlane Lane are two
further catchpits. These three catchpits
are linked to each
other. The stormwater gathered in the Redlands Estate
reticulation system also finds its way into the
municipal pipes which
link the three catchpits. From there the stormwater is led
along a 600mm wide pipe to the south western
corner of the
Plaintiff’s property where the stormwater is also discharged
into the Woodgrove canal.
[8]
The Plaintiff’s
claim, in a nutshell, is that the stormwater which is discharged into
the Woodgrove canal via the 600mm pipe
originates from the Redlands
Estate. The Plaintiff accepts that as it is the lower lying
property, it has a duty to accept
the natural flow of stormwater from
the Redlands Estate. However, this is limited to the quantity
of water discharged from
the property in its pristine state.
The Plaintiff has further alleged that as a result of the increase
flow of water (mainly
due to the development of the Redlands Estate)
the Woodgrove canal and its property in some areas have been
damaged. It is
the plaintiff’s view that should the
stormwater flowing from the Redlands Estate be attenuated prior to a
controlled discharge
into the Woodgrove canal, it would nullify the
risk of further damage to the Plaintiff’s property and the
Woodgrove canal.
[9]
The Plaintiff’s
claim is based on the
actio
aquae pluviae arcendae
.
Mr Dickson SC, on behalf of the Plaintiff, has submitted that in
modern times it is better to consider the Plaintiff’s
claim
under the principles of neighbour law. Both bases will be
considered for it is my view that there is a slight but marked
distinction between the two.
[10]
The
actio
acquae pluviae arcendae
was developed in Roman times and applied mainly in respect of rural
land and was restricted to the natural flow of water. (Voet
39.3.2)
The owner of the lower land was obliged to accept the water
discharged or flowing from his upper neighbour.
This obligation
extended to the acceptance of an increased flow of water provided
that such increased flow was occasioned by the
upper neighbour in the
cultivation of his own land. –
Ludolph
v Wegner
(1888) 6 SC 193
(paragraph 4)
.
(Quoted in
Barklie
v Bridle
1956(2) SA 103 (SR) at 108 G)
.
[11]
In Roman Dutch law this
obligation was developed to include and regulate the relationship
between owners of neighbouring properties
in an urban environment.
“Grotius 2.34.16 states 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”.” (1956
Annual
Survey South African Law at 134 – 6.)
[11]
In
Bishop v Humphries
1919 WLD 13
, the Court
recognised the effect of and the changes brought about by urban
development. At page 17, Gregorowski J held:
“
The
fact 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 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. The rain water
can no longer flow as it used to flow.”
Further
at pages 17 to 18 – he concluded:
“
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.”
[12]
The upshot of this is
that the upper neighbour may only impose the obligation on the lower
neighbour to accept the increased flow
of water if there was a
servitude in his (upper neighbour’s) favour permitting him to
discharge this excess flow over his
lower neighbours property.
[13]
Barklie v Bridle
(supra) the Court, although not
referring to Grotius 2.34.16, held at 109 (E-G):
“
In
my view, 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 onto
to his lower neighbour’s stand at the 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 the use of
reasonable measures, he can
discharge that water onto the adjoining
street so that the water may be harmlessly drained down that street,
then I consider that
he should do so.”
[14]
This decision was
reached after the Court had found that:
“
The
effect of the development which has taken place on the Applicant’s
stand has been to disturb completely the natural
and normal
flow of water from this stand ….. the general direction of the
normal flow has further been effected by the terracing
which have
been erected on the property. It is very difficult indeed to
say today what the normal flow would have been like
when the property
was in its natural state.” (at 106 B-D).
[15]
Marais JA in
Williams
v Harris
1998(3) SA 970 (SCA)
confirmed that the
actio
aquae pluviae arcendae
applies to both rural and urban tenements. In reaching this
conclusion however he, in my opinion, incorrectly relied on a
passage
from Grotius, namely 2.35.17 which provides:
“
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”.” (at 983 I)
Although
acknowledging that the aforesaid passage applied to rural properties,
he found that it applied equally to urban properties
as he “would
have expected Grotius to pointedly draw attention to the contrast”.
(at 984 A).
[16]
In
Pappalardo
v Hau
2010(2) SA 451 (SCA)
Hurt AJA favoured the approach in
Bishop
v Humphries
(supra) subject to the qualifications suggested by Professor
Scholtens (1956 Annual Survey of South African Law) where “the
natural situation makes it impossible to discharge rainwater onto a
street or road”. He accordingly did not accept
that the
actio aquae pluviae
arcendae
applied to
neighbouring urban properties given the effect of urbanisation in the
determination of the natural flow of water.
The effect of this
judgment is that everyone has to discharge rain water onto the street
unless it is impossible or impracticable
to do so.
[17]
Mr Dickson has
submitted that the judgment of Marais JA in
Williams
v Harris
(supra) is to be applied as the relevant passage referred to above in
Pappalardo v Hau
is arbiter. This would mean that the Plaintiff is only entitled
to receive the natural flow of water from the Defendant’s
property in its pristine state. This, on my understanding would
mean that the claim is based on the
actio
aquae pluviae arcendae
.
[18]
It is common cause that
both the Redlands Estate and Woodgrove were formerly undeveloped
land. The Redlands Estate was developed
by demolishing whatever
structures were there and replacing same with a residential estate,
business park and boutique hotel with
the addition of tarred roads
with pavements and impervious parking areas.
[19]
It is also common cause
(or at least not disputed) that all the common property (roads,
drains, water disposal system) is owned
by the 5
th
Defendant (the Homeowners Association). Further it is common
cause that there is no attenuation of the stormwater within
the
Redlands Estate. Finally, it is common cause that Woodgrove is
situate below George MacFarlane Lane and is accordingly
also lower
than the Redlands Estate.
[20]
The Plaintiff has
pleaded that prior to the development of the Redlands Estate,
Woodgrove was accustomed to receiving the natural
flow of water from
the Redlands Estate onto and under George MacFarlane Lane and onto it
(Woodgrove) through a stormwater pipe
situate at its south-western
boundary. The Plaintiff further contends that post-development,
the run-off of stormwater from
Redlands Estate onto the Plaintiff’s
property exceeds the natural run off from the land in its pristine
condition and had
increased three-fold.
[21]
Mr Peter Miller, the
Plaintiff’s chairman, testified that in 2008 the Plaintiff
became aware of the stormwater problem.
As a result of heavy
rains there was serious scouring and erosion in the canal. He
thereafter commenced observing the run-off
during various rainfall
periods. He observed that there was a greater volume of water
being delivered into the canal from
what he termed the Redlands
pipe. This is the 600mm pipe referred to earlier in this
judgment. This was in comparison
to the water which was being
delivered into the canal by the two 1m pipes which collect municipal
stormwater off Old Howick Road.
He estimated the flow from the
so-called Redlands pipe to be approximately double or three or at
times four times greater than
the volume emanating from the two 1m
pipes.
[22]
He conceded that at the
time of the development of Woodgrove the two 1m pipes as well as the
so-called Redlands pipe were already
there. He also confirmed
that the Plaintiff had acknowledged (in a letter dated 18
th
September 1998) that it was obliged to accommodate stormwater run-off
from higher lying urban areas, which was artificially intercepted
and
diverted through the Woodgrove property, via the said three pipes.
Of importance was his testimony that as the canal
was unlined
(nothwithstanding expert advice to line same) it would require
more maintenance and would erode more quickly.
He agreed that
absent the Redlands Estate development there would still be scouring
and erosion in the canal.
[23]
Ms Hillary Mumford, the
previous manager and CEO of the Plaintiff confirmed the evidence of
Mr Miller. She confirmed that
in January 2008, after a huge
storm, the canal was damaged in that there was massive scouring and
the gabion baskets and matresses
had been damanged. During
October 2012 she noticed that the water flowed off George MacFarlane
Lane onto what is called the
emergency road on Woodgrove and also
flowed through the bamboo from the Briar Ghyll property. This
flooding caused serious
damage to the buildings as well as to the
embankment. She concluded her testimony by opining that the
development of Redlands
was having an adverse effect on the Woodgrove
property.
[24]
Under cross-examination
she was constrained to concede that the water which emanated from the
so-called Redlands pipe was not only
water which had accumulated from
the Redlands Estate. She also accepted that the problems
experienced in the Woodgrove canal
had its sources in more than one
water source.
[25]
The increase in the
run-off of stormwater in post-development of the Redlands Estate is
not surprising given the natural consequence
of urbanisation –
viz,
inter alia
the increase in impervious areas. The Defendants have in fact
not disputed this. The Plaintiffs and Defendants experts,
James
Morris, Graham Payne and Chris Brooker, all agree that the
development of the Redlands Estate had, in some way, increased
the
run-off into the Woodgrove canal. What is in dispute however is
the magnitude of this increase. As stated earlier,
the
Plaintiff contends that this increase is three-fold whereas the
Defendant’s expert is of the opinion that it is much
less.
The quantity of the increase is, in my opinion, immaterial. The
question to be answered is whether the Plaintiff
is obliged to
receive this increased flow of water.
[26]
The Defendant’s
expert, Mr Brooker, also confirmed that as a result of the
construction of the drain along the north-east
corner of the Redlands
Estate, the stormwater flow had been diverted from its natural
run-off. According to the topographical
maps, the natural
run-off is in a north-easterly direction, via the Briar Ghylls
property and a ultimately into the stream situate
in the northern
area of Woodgrove. As alluded to earlier in this judgment, this
stormwater is reticulated and discharged,
via the municipal system,
into the Woodgrove canal.
[27]
The Defendants’
defence is based on three grounds:
(a)
That its stormwater
system is a lawfully constructed system approved by the municipality
in which:
(i)
The discharge is
collected and diverted into the municipal system and onto George
MacFarlane Lane, from where it finds its way into
the municipal
system.
(ii) The municipal
system discharges the water so collected, together with other
undifferentiated water, through a single pipe into
the Plaintiff’s
property alongside two other municipal pipes.
[28]
Although initially denying same, the Plaintiff has conceded that the
stormwater reticulation system on the Redlands Estate
was approved by
the local authority or municipality. However, relying on the
provisions of Section 23 of the National Building
Regulations and
Building Standards Act 103 of 1977, the Plaintiffs contend that the
Defendants are not exempt from liability.
[1]
It is, in my view not necessary to consider this aspect any further
at this stage as it will become necessary when the question
of
damages, if any, is considered.
[29]
The Plaintiff has also averred that the discharge of stormwater by
the Defendant into the municipal stormwater system or road
is
unlawful as no measures have been taken to attenuate the stormwater
in excess of the natural flow on the Defendant’s property.
This brings me to the second defence – viz – that at the
time of the development of the Redlands Estate there was no
obligation for the attenuation of storm water. Absent this
obligation, the Defendant’s discharge of storm water into
the
municipal system can hardly be said to be unlawful as contended by
the Plaintiff. The Plaintiff’s own experts have
confirmed
that attenuation was not the requirement at the time. The
municipal requirements at the time were set out in paragraph
4.10 and
provides:
“
4.10
All outfalls shall be arranged
to
discharge either into the city stormwater system or a natural
recognised watercourse
.
The effect of the development on the existing stormwater system shall
be determined. Allowance shall be made for upgrading
the system
outside the limits of the sight where necessary. Alternatively
the design shall ensure that the post-development
run-off does not
exceed the pre-development run-off”. (Annexure F – page
17 – Plaintiff’s experts reports).
(my underlining)
[30]
Finally, the Defendants have averred that the
actio aquae pluviae
arcendae
does not apply as the Plaintiff and the Defendant are
not contiguous neighbours. They do not share a common boundary
and
are separated from each other by George MacFarlane Lane, the
Briar Ghylls property and portion 20 of erf 837.
[31]
A perusal of the reported cases relating to this issue reveal that
the
actio aquae pluviae arcendae
only applies if the
properties are contiguous. – See
Bishop v Humphries
;
Barklie v Bridle
;
Williams v Harris
and
Pappalardo v Hau
– supra. In all these
cases the parties’ properties to the dispute shared a common
boundary.
[32]
Relying on the judgment of
New Heriot Gold Mining Company Ltd v
Union Government
1916 AD 415
, Mr Dickson has submitted
that contiguity is not required. An examination of the judgment
however reveals that whilst the
principles of the
actio aquae
puviae arcendae
were referred to, the case was decided on the
negligence of the Defendant in failing to take appropriate measures
to prevent flooding
during a construction process.
[33]
A perusal of decisions decided internationally on the same subject
also suggest contiguity is an element. See, for example,
Gardtner v Kidman
(1962) 106 CLR 12
–
High Court of Australia
. The author D P Derham –
“Interference with surface waters by lower land holders”
(1958) 74 LQR 361
contends (at 364):
“
That
in English law the upper riperian owner had ….. a liberty …..
to discharge casual waters on his
neighbours
lower contiguous land
….”(my emphasis)
[34]
I am of the view that as the Plaintiffs and Defendants properties are
not contiguous, the Plaintiff’s action must fail.
[35]
It is not surprising that in the light of the aforesaid that the
Plaintiff has now contended that the matter be considered
and
regarded as a nuisance principle under the principles of neighbour
law. Indeed, being neighbour law, contiguity is not
required.
“With reference to contiguity, neighbour law in general and
nuisance law in particular rests on the assumption
that nuisance
usually involves two properties that are situated more or less
closely together, although they do not have to be
strictly adjacent.”
– AJ van der Walt – the Law of Neighbours – pages
240 to 241. The author is however
of the view that in some
instances “actual contiguity is essential” and cites the
example of the natural flow of water.
[36]
In my view what is required in nuisance/neighbour law is some form of
animus. This appears from the description of nuisance
law by
Derek van der Merwe: “where the occupants of fixed property, in
the course of using that property, conducts himself
in such a way in
or on such property, as to cause actual or potential damage (or
injury or discomfort) to the occupant of neighbouring
or near-by
fixed property”. – AJ van der Walt (supra) at 238.
[37]
It can hardly be said that by reticulating its stormwater into a
municipal system that the Defendant is conducting itself in
such a
way on his property so as to cause actual or potential damage to the
Plaintiff. I am accordingly not satisfied that
applying the
principles of neighbour law and/or nuisance law that the Plaintiff
has discharged the onus necessary to succeed.
[38]
The Plaintiff cannot succeed in the action based on the
actio
aquae pluviae arcendae
as the properties are not contiguous.
Two examples which immediately come to mind are instances where a
person continuously
plays his/her music at loud volumes and at all
hours of the night thereby affecting not only his contiguous
neighbours but also
the people living nearby. Another example
would be when a person deliberately burns garden refuse much to the
annoyance of
his contiguous and nearby neighbours. Clearly in
these instances there is an element of animus present. In my
view
the Plaintiff’s reliance on the judgment of Marais JA in
Williams v Harris
, is ill-founded. If one applied
the principles set out in
Bishop v Humphries
,
Barklie
v Bridle
and favoured by Hurt AJA in
Pappalardo v Hau
then it is clear that the Defendant has not done anything wrong.
The Defendant has merely done what the Roman Dutch authorities
have
provided – namely it has led its stormwater on its own land,
over its own land and out onto the street into the municipal
system.
There is accordingly no obligation on the Defendants to attenuate the
stormwater prior to its discharge into the
municipal system. As
mentioned earlier in this judgment, the Defendant has averred that
“other undifferentiated water”
is also discharged,
together with the stormwater from the Redlands Estate, via the 600mm
pipe. As I understood the evidence,
this is not in contention
(save perhaps for the volume) and further consideration, in the light
of my conclusion, is not necessary.
Given these findings, I am
of the view that the proper maintenance of the Woodgrove canal is an
obligation of the Plaintiff and
that had it followed the advice given
to it by its experts, as testified by Mr Miller, Ms Mumford and Mr
Payne, the problems experienced
by it would have been alleviated.
[39]
I accordingly grant the following order:
a.
The action is dismissed
with costs.
b.
The costs shall
include:
2.1 The costs of two
counsel where so employed.
2.2 The costs of
Defendant’s expert, Chris Brooker, including:
2.2.1
The cost of his expert report
2.2.2
All pre-trial consultations and inspections, inclusive of:
2.2.2.1
Consultations with the Defendant(s)
2.2.2.2
Inspections of the relevant properties
2.2.2.3
Consultation with Defendants’ counsel
and
attorneys
2.2.2.4
Consultation with Plaintiff’s expert;
2.2.3
Qualifying fees
2.2.4
Reservation fees
2.2.5
Travel and accommodation
2.2.6
Days fees for attendance at trial.
_______________________
KRUGER J
DATE OF
HEARING:
15 to 27 October 2016.
DATE
OF JUDGMENT:
10 January 2017.
FOR
THE PLAINTIFF:
A J Dickson
SC instructed by J Leslie Smith & Co.
FOR
THE DEFENDANTS:
A J Troskie SC and P J Broster instructed by Venns.
[1]
Section 23
Exemption
from liability
No
approval, permission, report, certificate or act granted, issued or
performed in terms of this Act by or on behalf of any local
authority or the board in connection with a building or the design,
erection, demolition or alteration thereof, shall have the
effect
that –
(a) such local authority or the
Board be liable to any person for any loss, damage, injury or death
resulting from or arising
out of or in any way connected with the
manner in which such building was designed, erected, demolished or
altered or the material
used in the erection of such building or the
quality of workmanship in the erection, demolition or alteration of
such building;
(b) the owner of such building
be exempted from the duty to take care and to ensure that such
building be designed, erected, completed,
occupied and used or
demolished or altered in accordance with the provisions of this Act
and any other applicable law;
(c) any person be exempted from
the provisions of any other law applicable in the area of
jurisdiction of such local authority.”