City of Johannesburg v Debbie Investments CC (601/04) [2006] ZASCA 25; [2006] SCA 29 (RSA) (23 March 2006)

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[2006] ZASCA 25
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City of Johannesburg v Debbie Investments CC (601/04) [2006] ZASCA 25; [2006] SCA 29 (RSA) (23 March 2006)

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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
Case No. 601/04
NOT REPORTABLE
In the matter between
CITY OF JOHANNESBURG
APPELLANT
and
DEBBIE INVESTMENTS CC
RESPONDENT
Coram: Howie P; Scott, Brand, Jafta JJA et Cachalia AJA
Heard: 20
February 2006
Delivered: 23 March 2006
Summary: Delictual claim for flood damage to property;
expert testimony inconclusive. Court should not venture its own
opinion.
Neutral citation: This case may be cited as
City
of Johannesburg v Debbie Investments CC
[2006] SCA 29 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
CACHALIA AJA
[1] Debbie Investments CC is a close corporation and the
respondent in this appeal. It instituted a delictual action against
the City
of Johannesburg (the appellant), a local authority, for
flood damage that was caused to a property that it owns in
Linksfield, Johannesburg.
The appellant denied liability and
simultaneously instituted an action in reconvention against the
respondent for damage that was
caused to a municipal road and wall
bordering the property. The respondent too denied liability in
respect of this claim.
[2] Having agreed to separate the merits of the claim
from the quantum of the damages, the parties requested the
Johannesburg High
Court to decide the merits only. That court
(Coetzee AJ) held that the appellant was liable for the damage caused
to the respondent’s
property. At the same time it dismissed the
appellant’s counterclaim. The appellant was however granted leave
to appeal to this
court.
[3] The property that is the subject of this appeal is
situated on the slopes of Linksfield Ridge in Johannesburg. The ridge
slopes
at a steep angle of between 30° to 34° from south to
north (from top to bottom). Access to the property is obtained from
a
road, Linksfield Drive, situated at the north end of the property.
The macadamized road was constructed by the appellant’s
predecessors
in the 1950’s and is now the responsibility of the
appellant. It snakes up the ridge, taking three sharp ‘hairpin’
bends on
its way to the top of the ridge. At the second bend, this is
at the south-eastern corner of the property, the road curves sharply
above the property at an angle of 180°. From here it continues in
a south-westerly direction to the top of the ridge. The minute
of the
inspection
in loco
records that rainwater normally flows from
the third incline at the top of the ridge around the inside corner of
the second bend
(the south side) down the road. The road therefore
acts as a natural drainage course.
[4] The portion of the road above the property is
constructed partly on cut and partly on fill. In some places the cut
is into solid,
weathered granite; in others it is into the talus
which forms a layer on the weathered granite. Fill is imported porous
and pervious
material, soil or rock, which was introduced during the
construction of the road to fill the area between the naked slope and
the
surface of the road. The porous and pervious material of fill
allows for the free flow of water through it. Granite on the other
hand, is impermeable. Talus consists of material which has been
rolled and transported by gravity down the slope of a hill or
mountain.
It contains rocks, boulders, gravel and other fractions of
soil and is permeable.
[5] Where the
respondent’s property is bounded by the road above it, a retaining
wall was constructed by the appellant’s predecessors
to hold up the
fill which supports the road. It is a substantial wall, 7 metres
high, made from stone and mortar. Before the incident
giving rise to
this action occurred, a number of vertical and horizontal cracks were
apparent across the face of the wall.
[6] Between this wall and the roadway is a concrete
kerb, 15 cm high, and between the kerb and the wall, a grass verge.
The wall is
positioned 1,5 metres away from the kerb. It rests
on a talus layer and its east and west sides are founded on weathered
granite.
The wall is founded on talus in the centre and weathered
granite on its east and west extremities. It is convenient to refer
to this
wall as the municipal wall.
[7] The municipal wall straddles a depression or gully
in the impermeable granite that is filled with talus which is
permeable, thus
allowing the infiltration of water through it. The
talus would form a natural drainage ditch in the gully. The talus
layer is between
1,5 to 2 metres thick. The evidence did not
establish the depth of the gully, how far up and under the municipal
wall it extended
and, if it did, whether it extended under the road
above the property and proceeded further up the ridge. An important
issue in this
appeal is whether a causal link exists between the flow
of water down the gully and the damage to the respondent’s
property.
[8] The talus layer within the property runs from the
foot of the municipal wall, down the slope, in a northerly direction
at the
same angle as the slope of the ridge, ie, 30° to 34°.
Eighteen metres from the foot of the wall down the slope is terrace
wall and a further 2 metres below that, a garden wall. The
garden wall is a few metres from the dwelling and was constructed
approximately 3 metres high and 15 metres in length. It had weep
holes to allow the egress of water. The dwelling on the property
was
cut into the mountain slope by between 4 to 6 metres, the cut being
retained or protected by the terrace wall. The terrace and
garden
walls were built by the original owners of the dwelling, years after
construction of the road and municipal wall.
[9] In the early hours of the morning on 10 February
2000, after unusually heavy and incessant rain for several days over
the Linksfield
area, John Halfon who resides in the dwelling on the
property was awakened by a thud. It was raining and dark. A portion
of the terrace
wall appeared to have collapsed. Approximately half an
hour later Halfon heard a further thud and discovered that his
lounge, breakfast
room and kitchen scullery were covered in rocks,
grass and boulders. The garden wall had also now collapsed. This
caused flooding
of the entire house with stones, mud and debris from
the slope below the municipal wall.
[10] The flooding resulted in damage to all the rooms in
the house. Curtains at the front of the house had to be replaced, so
too
carpets, cabinets and furniture. There was also structural damage
as evidenced by the exterior cracks to the house. However, this
damage appeared to have been caused by the subsidence on the northern
side of the house which was unrelated to the damage behind
it.
[11] The pre-existing cracks across the face of the
municipal wall had widened but the stability of the wall was not
compromised.
There had also been pre-existing cracks along the road
on Linksfield Drive. As a result of the occurrence however major
damage to
a portion of Linksfield Drive, above the municipal wall was
caused by the subsidence of an area of approximately 30 metres
in
length and a width of 3 metres. The damage to the municipal wall
and road are the subject of the counterclaim.
[12] The
parties relied on expert testimony to explain the cause of the
subsidence of the municipal road, the collapse of the terrace
and
garden walls and the concomitant surge of rock, mud and debris into
the house. The experts however presented two irreconcilable
theories.
I will refer to these as the ‘Top-down’ and ‘Bottom-up’
theories.
The
‘Top-down theory’
[13] The theory advanced by the respondent was presented
by two engineers, Dr Ofer and Professor Stephenson. It was their view
that
the heavy rainfall would not have saturated the talus slope
below the municipal wall so as to have precipitated the event. This
view
was supported by the evidence of Alan Robinson, a geotechnical
engineer, who conducted soil tests at the site after the event to
determine what impact the rainfall had had on the soil in the talus
layer within the property. On the basis of these tests he concluded
that the rainfall had penetrated the top layer of the soil only. This
was because the steep gradient and the relatively low permeability
of
the talus soil matrix caused most of the water to run rapidly off the
slope.
[14] Having excluded the
saturation of the talus as the cause of the failure of the slope from
their theory, they reasoned that the
water would have come from
another source. That source, they opined, was the road above the
property. They asserted that the road
above the property concentrated
the water which was run off from properties situated above the road,
higher up the slope.
[15] The flow of rainwater down the road was likely from
time to time to have flowed down the steep road above the
south-eastern corner
of the property in large volumes and high
velocity. The absence of an adequate storm water drainage system on
Linksfield Drive, according
to Stephenson, made the road and the kerb
in particular unable to withstand such volumes of water. As a result
during the heavy rainfalls
at the time of the incident much of the
water flowing down the road would have overtopped the kerb, flowed on
to the grass verge
between the road and the municipal wall and
infiltrated down the pervious fill material behind the wall. Some of
the water would
also have penetrated through the cracks in the road
above the property and seeped through the fill underneath the road.
[16] The water infiltrating through the fill caused
sub-surface erosion in the fill and this erosion, in turn, allowed
the free ingress
of water to the area below the wall causing
saturation of the talus under the wall. The water then exerted
hydro-static pressure
causing its movement within the talus layer
below the wall (ie to the north of the wall). It would then have
emerged a few metres
below the wall, almost like a spring, in
quantities sufficient to commence a mud slide down the slope.
[17] The terrace wall was first toppled by the mud slide
and subsequently the weight of mud and debris caused the collapse of
the
garden wall. This collapse of the garden wall caused a further
rush of mud, debris and boulders through the back of the house.
[18] The erosion of the material behind and under the
wall damaged the municipal wall over the years. This accounted for
cracks in
the wall that had been visible before the incident. During
the event, the erosion caused further damage to the wall, by washing
out
fine material from the fill. This led to a collapse of the
structure of the fill and a settling of the material above. The
settlement
created new and wider cracks in the wall and also a
subsidence in the road above the property.
[19] Briefly put, the water emanating from above the
property (the top) penetrated the verge and the cracks in the road
thereby washing
out fine material from underneath the road and the
wall. The water that escaped under the wall as a result of this
caused the material
on the slope to dislocate and slide down to the
bottom of the slope causing the terrace and garden walls to collapse.
The ‘Bottom-up
theory’
[20] The appellant, too, called three engineers who
offered expert testimony on the sequence of events. They were Messrs
Vanderstraeten,
Roux and Wardle. They hypothesized that the cause of
the failure of the respondent’s garden wall was unrelated to the
municipal
wall and road. This was because, in their view, the angle
of the slope of the road where it passes above the respondent’s
property
is such that a significant accumulation of water along it is
obviated. The water would therefore have continued down the road on
its inside (south side) without overtopping the kerb (on the north
side) and flowing on to the grass verge.
[21] In
their view the incident was initiated by the accumulation of
excessive underground water behind the terrace wall. This began
with
saturation of the talus layer on the slope above the dwelling. The
talus slope became saturated by water from three sources:
the first
was rain water which fell on the slope and infiltrated through it;
the second, water which flowed underneath the municipal
wall and
within the talus layer at the joint or connection between it and the
impervious weathered granite underneath; this water
had seeped
naturally through the depression along the contact area between the
talus and the weathered granite underneath infiltrating
from the
catchment
area on the mountain side; the third was the seepage
through the verge and cracks in the road from rainwater that fell on
this area
(not water from the overtopping of the kerb that flowed on
to the verge as contended by the respondent’s experts).
[22] The area of talus
between the municipal wall and the garden and terrace walls became
saturated. The water and saturated earth
created pressure on the
terrace wall. A combination of these pressures and the absence of any
drainage provided in the terrace wall
rendered it unstable causing it
to collapse.
[23] With the collapse of
the terrace wall, the talus layer was no longer supported. In its
saturated condition the slope had lost
its shear strength (its
resistance to movement) and failed. The water that had dammed up
behind the terrace wall, together with the
collapsed talus, was
released and flowed over the garden wall and into the house. The
garden wall collapsed thereafter.
[24] With the release of
underground water eroding the slope even further a progressive land
slip occurred going back up the slope.
The onset of the slide and
release of ground water would have washed fine material out from
behind the municipal wall, causing progressive
local subsidence of
the overlying road fill and further cracking of the road surface.
Surface water on the roadway would then have
flowed into these cracks
and immediately behind the wall into the fill, adding to the
accumulating ground water and in turn the washout
and subsidence
process.
[25] In short the collapse of the terrace and garden
walls was caused by a build-up of water and soil pressure at the
bottom of the
slope which was followed, after the collapse of the
terrace and garden walls, by the progressive backward landslip up the
slope to
the top.
[26] The parties sought to hold each other liable on the
basis of these theories. The respondent contended that the damage to
its
walls and house was caused by the failure of the appellant to
construct an adequate drainage system to prevent flooding from the
road above the property. The appellant in turn sought to hold the
respondent liable for the damage that was caused to the road and
the
municipal wall on the basis that progressive backward landslip which
precipitated the subsidence was, so it contended, the consequence
of
the failure of the respondent’s defectively constructed walls.
[27] The learned judge
a
quo
was unable to decide which of the theories was the preferable
explanation for the incident. Despite this he upheld the
respondent’s
claim and dismissed the appellant’s counterclaim. He
did so on the following basis: it was common cause that on both
versions the
catalyst for the catastrophe was the considerable volume
of water that originated higher up the ridge, ie, south of the
respondent’s
property, in the catchment area, and passed under the
municipal wall. Whether the water passed above the road and through
the verge
and the cracks in the road, or underneath the road and
through the gully, where, he assumed, it would have passed through
permeable
fill, it was, he considered, the appellant’s failure to
construct the road or properly maintain it that contributed to the
volume
of water passing under the wall that caused the damage to the
respondent’s property.
[28] The experts of the
parties were agreed that the water that had passed under the
municipal wall would have come from two sources:
the first was the
natural infiltration in the gully through the talus; the second,
seepage through the verge and the cracks in the
road. The volume of
water that passed through the gully was not investigated. There was a
disagreement concerning the volume that
would have seeped through
verge and the cracks in the road. The respondent’s experts
suggested that a large volume of water coming
down the road would
have overtopped the kerb and penetrated the verge. The appellant’s
experts on the other hand denied that his
would have happened
because, in their view, most of the water coming around the bend
above the property would have passed on the
inside, ie, the south
side of the kerb. This view is consistent with the observation that
was made at the inspection
in loco
, alluded to earlier,
that rainwater coming down the hill would flow on the inside bend of
the road above the property. Not only was
the evidence regarding the
actual volume of the water that would have seeped through the verge
and cracks in the road inconclusive,
but the evidence whether a
significant
volume would have seeped through this way was
likewise so.
[29] In this court the appellant did not seek to impugn
the court
a quo’s
dismissal of the counterclaim. Its
submission is that if the water that caused the damage came down the
gully and so under the wall
the appellant should not have succeeded
in its claim. This is, so it is contended, because the construction
of the road was not shown
to have had any bearing on the flow of this
water. There was consequently no factual link between the appellant’s
conduct in constructing
the road, and the detrimental consequences
suffered by the respondent.
1
[30] The
respondent did not seek to demonstrate that the construction of the
road in any way interfered with the natural infiltration
of water
through the gully. The thrust of its argument was that the evidence
had demonstrated that the most likely source of the
water which
passed underneath the wall was through the cracks in the road and the
verge. This being so, it was contended that the
appellant’s failure
to repair the cracks in the road and the verge was the cause of the
consequential damages that it suffered.
[31] The court
a quo
was correct in its view that
there was no evidential basis to make any finding on the volumes of
the water that would have passed
either through the cracks in the
road and the verge or down the gully. The experts had pointedly
differed on this issue. There was
no basis to prefer either of the
opinions. If anything, as I have said (see para 28), the minutes of
the inspection
in loco
support the appellant’s view that
most of the water coming down the road would have passed on the
inside bend of the road rather
than overtopping the kerb on its
opposite side. The respondent’s submission in this regard is
therefore not sustainable.
[32] But the court
a quo
was not able to accept
the appellant’s submission that if the water had passed under the
road that it was not liable for the damage
that was caused to the
respondent’s property. This was because, in its view, the
construction of the road would have changed the
natural drainage and
flow of water on to the respondent’s property, allowing the water
to ‘have passed through the fill in the
gully’. This, reasoned
the court, rendered the appellant liable for the damage. I am, with
respect, unable to agree with this finding.
[33] I made reference earlier to the fact that the
municipal wall straddles a depression or gully which is filled with
talus that
forms a natural drainage course. The wall is founded on
talus at its centre, not fill, as the court
a quo
erroneously
assumed. Fill is the material which was introduced into the area
between the talus slope and the road.
[34] The evidence did not establish either the depth of
the gully or how high up the ridge it extends. If it did extend up
the ridge
above the road as contended by the appellant’s experts,
water would have collected naturally in it from the catchment area
above
the respondent’s property and infiltrated through the talus
under the municipal wall. There is no evidence to suggest that the
construction of the road in any way modified the natural drainage and
flow of water on to the respondent’s property. The finding
by the
court
a quo
to this effect is speculative, and is based on the
erroneous assumption referred to above. Neither the appellant’s,
nor the respondent’s
experts’ testimony had any bearing on this
question.
[35] The court
a quo
correctly accepted that the
water coming under the wall must have originated in the main from
higher up the slope, ie, above the
respondent’s property in the
catchment area. But it could not, in the absence of evidence of the
volume of this water that would
have flowed down the gully naturally
and through the talus layer, find that the appellant bore any
responsibility for the damage.
This was because there was no factual
basis for it to infer that the construction of the road had any
bearing on the volume of the
natural infiltration of the water
through the gully or through the verge and the cracks in the road.
[36] Once
the learned judge had found, with respect correctly, that he was
unable to accept either of the theories advanced by the
experts on
behalf of the parties, he ought, without more, to have absolved both
from liability. By venturing into territory that
neither of the
parties’ experts had, he in effect impermissibly advanced his own
theory.
[37] In the result the appeal is upheld with costs. The
order of the court
a quo
is amended to read as follows:
‘
In
respect of the plaintiff’s claim the defendant is absolved from
the instance. The plaintiff is to pay the costs of the action.’
‘
In
respect of the defendant’s counterclaim the plaintiff is absolved
from the instance. The defendant is to pay the costs of the
counterclaim.’
____________
A
CACHALIA
ACTING
JUDGE OF APPEAL
CONCUR:
HOWIE
P
SCOTT
JA
BRAND
JA
JAFTA
JA
1
See
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700.