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[2011] ZANCHC 38
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Van Wyk v Umsombovu Municipality (1633/2007) [2011] ZANCHC 38 (19 December 2011)

21
Reportable:
YES / NO
Circulate
to Judges: YES / NO
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to Magistrates: YES / NO
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT, KIMBERLEY)
Case No: 1633/2007
Heard on: 10/05/2010-14/05/2010; 20/09/2010-23/09/2010;
27/09/2010-30/09/2010; 23/05/2011-25/05/2011; 11/08/2010-12/08/2011
Delivered
on: 19/12/2011
In
the matter between:
PIET
VAN WYK
…......................................................................
PLAINTIFF
AND
UMSOMBOMVU
MUNICIPALITY
…......................................
DEFENDANT
JUDGMENT
PHATSHOANE J:
Mr Piet Van
Wyk, the plaintiff, instituted a delictual claim for damages against
Umsombomvu Municipality, the defendant, following
the torrential
rains and catastrophic floods of February 2006 which left destroyed
the lucerne on his farm, Buffelsvlei, situated
between the N1
National road and the R717 road at Colesburg, Northern Cape
Province. The claim is in respect of 9 000 hectares
of the
circular-shaped arable or pivot land which was so prepared in 1985.
The
merits and quantum were separated. Therefore the trial proceeded
solely in respect of the former.
The
plaintiff has farmed on Buffelsvlei since 1971. Adjacent to his farm
are the defendant’s eight oxidation ponds or sewerage

works/dams. Most of these dams were built in 1975. The ninth dam is
referred to as the ‘tydelike val’/the catchment
dam
built in 2000, probably to increase the capacity of the oxidation
ponds. It is located approximately 200 meters from the
border of the
plaintiff’s land. These dams are central to the dispute
between the parties. The ‘Trappiesdam’
stream flows
through the town of Colesburg and passes close to these oxidation
ponds. Its natural course is towards the plaintiff’s
pivot
land
situated in the waterway of the stream. The stream
splits into two creating an island at the pivot area and rejoins at
the lower
lying part of this land. A soil embankment is built around
the pivot land to a height of approximately 750 mm.
At
the lower part of the ponds towards the plaintiffs land the stream
is perennial. The plaintiff started experiencing problems
with the
overflow of the stream in 2002 due to what he termed a sewerage
crisis. The stream became polluted because of the overflowing
of the
oxidation ponds. His ‘weir’ built closer to the sewerage
ponds has been filled with sewerage water since 2002
and gives off a
foul smell. He called the Municipal officials and the department of
water affairs to his farm at a couple of
occasions to observe the
situation.
Once
established the lucerne would remain in production for about ten
years with approximately five cuttings/harvests in the summer
season
after which period it should be re-established. In this case the
production went beyond the ten-year period from 1985
when it was
established until around 2003 when it was re-established. Following
its re-establishment the plaintiff continued
to reap the fruits of
his labour until December 2005. Over the years his lucerne
production has been excellent and he made good
profit out of it. Mr
Neels
Snaayman states that he bought first grade lucerne from
the plaintiff on a regular basis. In May 2005 when he visited the
plaintiff,
his lucerne fields were an oasis.
In mid January 2006 the lucerne
was still very good and ready for harvest but the plaintiff could
not harvest because of the threatening
bad weather. The plaintiff
testified that the defendant’s catchment dam was constantly
leaking and discharging its contents
into the Trappiesdam stream. In
February 2006 all living creatures in his weir such as fish, craps,
frogs and the like died of
apparent poisoning.
At least
once yearly, there is a flood in the area where the plaintiff’s
land is situated. With a heavy rain fall around
06 February 2006 in
Colesburg heavy floods hit his land carrying with it the sewerage
effluent. This happened for a period of
a week. With the floods gone
the water still dammed on the pivot land. The floods deposited foul
filth such as foam, yellowish
debris, condoms, toilet paper, “little
something of everything on the land” as he puts it. The
lucerne was immersed in water for at least two weeks.
What
was noticeable was something he never experienced before. He heard
the odd sounds similar to the symphony orchestra in the
area
covering the pivot land as the water bubbled/ battled to infiltrate
the soil. The lucerne was flattened like hair combed
backwards. In a
matter of three weeks the lucerne changed colour to yellow and
disintegrated. Thereafter what was on the land
turned white (a white
paper-like material). After this episode the plaintiff did not
re-establish his lucerne for fear of being
in quandary once more
because the defendant had done nothing about its sewerage works.
To dispel
the Municipality’s suggestion that the plaintiff had been
negligent in that,
inter alia
,
he applied bad irrigation practises and cultivation methods or used
inappropriate fertilizers that posed a high risk to the
drowned
lucerne pastures the plaintiff intimated that he does not use the
pivot for irrigation. He irrigates once upon the establishment
of
the lucerne. His lucerne depends entirely on the rain water or its
long root system draws underground water. Chemicals such
as calcium
sulphate and superphosphate were only added to the soil in 1985 and
2003 when establishing and re-establishing his
lucerne.
This trial
was preceded by an inspection
in loco
which was conducted at the defendant’s
Colesburg sewerage treatment works and on the plaintiff’s farm
Buffelsvlei.
Mr Barend Rossouw, a health inspector of the
defendant, who also headed its sewerage unit, testified that no
chemicals are added
to the sewerage water or system. The oxidation
ponds depend on bacteria to function properly. During
this
inspection at the sewerage plant it was observed that the raw
sewerage passes through a grid which strains the plastic bags
and
other foreign material. The sewerage water without foreign material
passes through a pipe
into a chamber and discharges into two
anaerobic sewage dams which are approximately five meters in depth
built in 2002. The small
quantities of foreign materials in the
anaerobic dams are digested in time.
Rossouw explained that the
contents of the anaerobic dam would not discharge into the
Trappiesdam stream. The sewerage water in
the anaerobic dams flows
through the primary dams which are two meters in depth. No foreign
material flows through the chamber
to the primary dams. From the
primary dams, the water flows to the secondary dams which are also
two meters in depth. Below this
are tertiary dams. Water reaching
the tertiary dams is apparently treated or clean. Below the tertiary
dams are the irrigation
dams. Rossouw testified that the clean water
from the irrigation dams is pumped back into the primary dams and is
utilized by
Dr Rous for irrigation. Dr Rous’s father also used
the water for the same purpose since 1975. That much was confirmed
by
Dr Gavin Rous who nevertheless stated that he tries to irrigate
as little as possible with the sewerage water as it has some

negative effect on in his plants particularly lucerne which is the
first crop to wither and die.
Rossouw states that there are
no unbroken human solids and it is not possible that the solids can
end up in the irrigation dams.
His testimony on this score was
corroborated by that of Mr Bertus Jacobus Kapp, an official of the
defendant since 1995, who
added that the defendant has erected the
catchment dam to prevent treated sewerage water from flowing into
other water courses.
Kapp further states that it has been an ongoing
process for the defendant to upgrade its waste water treatment works
and had
to go through many obstacles in an attempt to secure funding
for the project, to no avail.
The plaintiff’s dilemma
with the defendant’s sewerage treatment plant has a history of
its own. On 7 June 1996 his
attorneys wrote a letter to the
Municipality complaining about the over-flow of the effluent which
led to the plaintiff having
to move his cattle elsewhere and
requested the Municipality to deal with the problem. On 6 August
1996 the Municipality received
a letter from the Department of Water
Affairs and Forestry which reads:
“
EFFLUENT OVERFLOWING FROM THE OXIDATION
PONDS
The visit on 24 June 1996 has reference.
We appreciate your efforts of trying to prevent
the effluent from flowing randomly in the veld by constructing an
informal dam.
We however wish to remind you that overflow of effluent
in the veld is an offence according to section 21 (1) and 23 (1) of
the
Water Act of 1956.
Furthermore, we are afraid we cannot allow
disposal of effluent into the Oranje River as proposed by the Health
Inspector, Mr F.
Van Der Berg. The reason the municipality was issued
with an exemption to section 21(1) (no. 522B) is because the quality
of effluent
from oxidation ponds does not meet Department of Water
Affairs and Forestry standards (regardless of whether E.coli in the
effluent
is 19).
If the effluent is too much for the present user,
alternative irrigation should be sought for the surplus effluent.
The ponds, especially the irrigation dam, is
thickly overgrown with long reeds and grass. This should be removed.
We wish to arrange a meeting between the
Municipality, Meatlands abattoir and Department of Water Affairs and
Forestry with regard
to the salt water pollution effected by
Meatlands.
We propose a date from 2 – 6 September 1996.
Let us know which date would be suitable for you.”
In responding to the
aforementioned letter the Municipality writes:
“
EFFLUENT: OXIDATION PONDS: COLESBERG
Your letter in respect of the above-mentioned ref
16\2\7 D341\D1 dated 7 August 1996 has reference.
Please take herewith notice that the 6
th
September 1996 suits us best for discussions with yourselves and
Meatlands in respect of the alleged saline pollution. (Please
arrange
with Meatlands).
Regarding the overflow from oxidation ponds, we
once again would like to bring under you attention that an
application for the creation
of two additional dams was lodged with
the Department of Housing and Local Government, of which a copy was
forwarded to you office.
Mr Van Der Berg mentioned to you that the excess
water was disposed in a dry river system. After complaints from the
adjacent farmer,
the effluent was dammed in. The Orange River is
approximately 35 km from the sewerage works.
A contract has been entered into with the
farmer to use the effluent for irrigational purposes which would
solve the problem
.”
On 12
October 2004 the plaintiff directed a letter to the Municipality
complaining about
“
afloop
rioolwater”
and received a
response from the municipal manager dated 11 April 2005 which reads:
“
RIOOL AFLOOP WATER VANAF
RIOOSTELSEL
Hiermee erken ek ontvangs van u
skrywe van 12 Oktober 2004 in verband met bogenoemde aangeleentheid.
Eerstens wil ek hiermee verskoning
aanbied dat daar nou eers
gereageer word op u skrywe.
Die v
ertraging
is egter verooksaak deur ń administratiewe fout.
Daar word kennis geneem van die inhoud van u
skrywe. Die nodige water monster resultate soos in u teenwoordigheid
geneem, word dan
ook hierby aangeheg. U moet ook kennis neem van die
aanbevelings soos wat deur die Nasionale Departement van Landbou
voorgestel
word. Die Raad het dan ook onmiddelik hul raadgewende
ingeniers, Mnre.
Kwezi V3 opdrag gegee om die
nodige besigheidsplanne op te stel om die problem aan te spreek.
Die besigheidsplanne is reeds voltooi en die
nodige aansoek om befondsing is ook reeds ingedien. Sodra die nodige
fondse bekom is,
sal die riooldamme onmiddelik opgegradeer word.
In die lig van bogenoemde kan u ook sien dat die
Raad werklik ernistig is, om die problem so spoedig as moontlik op te
los.
U kan verseker wees dat voorsorg maatreëls te
alle tye getref work om die problem te prober voorkom.”
Looking at the ditch-water
(‘slootwater’) sample results dated 08 October 2004
forwarded to him by the Municipality
the plaintiff testified that
the water was very salty and dangerous for irrigation. He does not
use this water for irrigation
but has no control over it flowing
into his farm.
The consulting engineers
compiled a report in February 2005. This report highlighted for
example that the area below the irrigation
dam was soggy and a small
stream had formed rendering the land marshy. That it was suspected
that insufficient irrigation was
taking place resulting in the
overflowing of the final lap of effluent from the irrigation pond to
the lower lying areas. The
report further records:
“
However, the inflow
exceeds the design capacity resulting in substandard final effluent.
A high dissolved solid content is noted
in the sample results
attached in annexure A. It is presumed that the high levels originate
from the abattoir. This should be investigated
and preventative steps
taken by the municipality...
In addition to the above, sufficient pasture for
irrigation should be incorporated into the planning of the extensions
to ensure
that an end is made to the uncontrolled discharge....
Urgent attention needs to be given to the required
present and future irrigation pastures as uncontrolled disposal is
causing ponding,
uncontrolled streams and unhappiness of neighbouring
property owners. This is also a health hazard and is in contravention
of DWAF
regulations.”
On 25 January 2006, the
Municipality wrote a letter to its consulting engineers which reads:
“
UPGRADING OF THE COLESBERG WASTEWATER
TREATMENT WORKS: MIG APPLICATION
We refer to the abovementioned MIG applications as
submitted to your Department.
The upgrading of the Wastewater Treatment Works is
a high priority project for the Umsombomvu Municipality because of
the following:
700 buckets to be eradicated in the near future.
More waterborne sewage connections will also be
implemented.
Contamination of the downstream boreholes takes
place because of substandard sewage overflow.
The
neighbouring
famers
suffer lucerne losses because of the uncontrolled, high salt content
overflow from the Wastewater Treatment Works.
Acreage of farmlands became waterlogged and can
therefore not be utilized for farming.
The abovementioned foresee several problems in the
near future and thus need urgent attention to avoid possible lawsuits
against
the Umsombomvu Municipality.”
Rossouw stated that he wrote the
aforementioned letter to the Municipality’s service provider in
order to bring to their attention
the seriousness of the situation.
Section 19 of the
National
Water Act
, 36 of 1998, provides:
“
19  Prevention and remedying effects
of pollution:
An owner of land, a person in control of land or
a person who occupies or uses the land on which-
(a)   any
activity or process is or was performed or undertaken; or
(b)   any other
situation exists,
which causes, has caused or is likely to cause
pollution of a water resource, must take all reasonable measures to
prevent any such
pollution from occurring, continuing or recurring.”
The historical setback of the
discharge of the Municipality’s final effluent into the lower
lying areas of Colesburg and
other water courses painted above is
disquieting. This problem, it appears, dates back as far as 1996 and
to this date the Municipality
has not found a solution to the health
hazard posed. Nonetheless what is at issue here is whether its
conduct resulted in the
demise of the plaintiff’s lucerne
pastures.
In his particulars of claim the
plaintiff avers that the Municipality allowed the Trappiesdam stream
to be contaminated. The pollution
was caused by untreated solids
and/or human waste with accompanying chemicals, amongst others,
sodium, lead, chlorides and nitrates.
The polluted water with its
concomitant foreign substances was carried down the stream and
settled on his pivot land. The pollutants
caused the compaction of
the soil which led to the drowning of the lucerne during February
2006.
The plaintiff further avers
that the Municipality was negligent in that it allowed or did not
prevent the Trappiesdam stream from
being polluted with the
aforementioned pollutants from the sewerage works or from landing in
the Trappiesdam stream or failed
to clean or rid the stream of these
pollutants. That it did not take preventative measures against the
contamination. That it
did not exercise a duty of care and
remediation of environmental damage as set out in s 28 of National
Environmental Management
Act, 1998 (Act 107 of 1998). That there was
a duty of care on the Municipality to ensure that the plaintiff does
not suffer damage
due to pollution of the Trappiesdam stream. In
acting as it did, the plaintiff alleges, the Municipality infringed
his entrenched
environmental and property rights as envisaged in s
24 and 25 of the
Constitution of the Republic of South Africa
Act
, 108 of 1996.
The Municipality denies that
its action or failure to act led to the destruction of the
plaintiff’s crop or his damages.
It denies negligence and in
the alternative if found to have been negligent it denies that same
contributed to the damages suffered
by the plaintiff. It pleads,
inter alia
, contributory negligence on the part of the
plaintiff in this way:
“
Die verweerder pleit dat die vrekte en/of
versuiping van die eiser se lusernplante plaasgevind het as gevolg
van die uitsluitlike
nalatigheid van die eiser wie nalatig was in een
of meer van die volgende opsigte:
10.1 Deur die lusernland te vestig in/op
vleivlakte.
10.2 Deur nie te voorsien dat die samestelling en
gehalte van die grond waarop die lusernland gevestig word/is sodanig
is dat dit
nie geskik is vir die verbouing van lusern nie.
10.3 Deur die lusernland te vestig langs die
Trappiesdam spruit, welwetende dat die spruit van tyd tot tyd sy
walle oorstroom en
ook die lusernland sal oorstroom.
10.4 Deur nie te voorsien dat die oorstroming van
die lusernland die lusern nadelig kan beïnvloed nie
10.5 Deur ‘n wal aan te bring om die
vloedwater van die Trappiesdam spruit op die lusernland te vergader.
10.6 Deur die lusernland te vestig op grond wat
nie geskik is vir die verbouing van lusern nie.
10.7 Deur nie te voorsien dat die bewerking van
die grond van die vleiland die risiko van versuiping van die lusern
sal verhoog
nie.
10.8 Deur nie stappe te neem om te verhoed dat die
risiko van versuiping van die lusern verhoog word tydens die
bewerking van die
grond van die vleiland nie.
10.9 Deur nie voor en tydens die versuiping die
verbouing van lusern op die lusernland die grondsamestelling te
monitor en stappe
te neem ten einde die versuiping van die lusern te
voorkom nie.
10.10 Deur bemesting- en bewerkingsmetodes op die
lusernland toe te pas wat die risiko van die versuiping van die
lusern verhoog
het.
10.11 Deur nie stappe te neem om te verhoed dat
water uit die Trappiesdam spruit die lusernland oorstroom nie.
10.12 Deur die lusernland te besproei op so ‘n
wyse dat dit die risiko van verdigting van die grond en versuiping
van die
lusern verhoog het.
10.13 Deur toe te laat dat die chemiese
samestelling van die grond verander en verswak word deur die
bewerking en bemestig van die
lusernland
10.14 Deur nie voldoende voorsiening te maak vir
dreinering van die lusernland nie en sodaning die risiko van
versuiping te voorkom”
Section 24 of the Constitution
guarantees everyone a right to an environment that is not harmful to
their health or well-being;
and to have the environment protected,
for the benefit of present and future generations, through
reasonable legislative and
other measures that prevent pollution and
ecological degradation; promote conservation; and secure
ecologically sustainable development
and use of natural resources
while promoting justifiable economic and social development.
The essential elements of a
delictual claim in general 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).
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.
In order to succeed with his
claim the plaintiff should prove that the lucerne died due to soil
compaction caused by the settling
thereon of the untreated solids
and/or human waste and accompanying chemicals emanating from the
sewerage works. Therefore the
onus remains with the plaintiff to
prove the wrongful conduct, the harm suffered and the causal
connection between the wrongful
conduct and the harm.
In The Law of Delict, Volume 1,
Aquilian Liability, Juta, at 30 Boberg commences the topic on a
wrongful act or omission by stating
that:
“
Wrongfulness or unlawfulness is that
quality of damage producing activity which makes it an actionable
delict. We could dispense
with it if we were prepared to say that all
harm caused culpably (i.e. intentionally or negligently) is
actionable, thus making
culpability the sole key to compensation. But
this attractive simplification accords neither with reality nor with
policy. Nor
should it do so. The net of liability would be cast too
widely if all harm caused culpability were shifted to the shoulders
of
him who caused it: social policy requires that some remain where
it falls.”
It is trite that negligent
conduct which manifests itself in the form of a positive act causing
physical damage to the property
or person of another is prima facie
wrongful. See
Cape Town Municipality v Paine
1923 AD 207
;
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA)
at 156 para 12. In
Hawekwa Youth
Camp and Another v Byrne
2010 (6) SA 83
(SCA)
at 90 para
22-23 Brand JA states:
“
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. Its 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).
The separate test for the determination of
negligence is the one formulated by Holmes JA in Kruger v Coetzee
1966 (2) SA 428
(A) at 430E - H. According to this test, negligence
will be established if –
'(a) 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; and
(ii) would take reasonable steps to guard against
such occurrence; and
the defendant failed to take such steps.”
The enquiry into the
aforementioned elements of the delictual claim or the liability on
the part of the defendant
in casu
cannot commence prior to
the determination of the issue of what caused the plaintiff’s
lucerne to wither and die. To unravel
the conundrum behind the
bubbling waterlogged lucerne crop and its eventual withering
the
plaintiff called three expert witnesses: Mr
Jacobus Johannes
Pieter Swanepoel,
Mr
Gerhardus De
Kock
and
Professor Christiaan Gruywagen. On the other hand the
Municipality
called to the stand Dr
Wayne
Frederick Truter
. From these experts’ joint
report it is common cause that the lucerne would take two weeks to
drown if it stood in 25mm-50mm
of water for this extended period.
They are all of the view that the lucerne on the pivot land drowned.
They differ on the underlying
cause for the death of the fodder, the
quality of the soil and whether the sewerage water caused the
drowning of the lucerne.
Mr Swanepoel, an agricultural
assessor who has handled public liability claims in the field of
agriculture for the past 15 years
holds several degrees in
agriculture. He worked extensively with lucerne in many areas of his
employment under different types
of irrigation such as flood and
pivot irrigation since 1973. He conducted an investigation on the
pivot land in July 2007, almost
a year following the destruction of
the lucerne. He avers that the 10-15 cm top soil of the lucerne land
was contaminated. Negating
Dr Wayne Truter’s report he
intimated that there was no chemical buildup, compaction or
saturated conditions on the land
or bad irrigation practices which
could have drowned the lucerne. In his view ‘all appeared to
have been normal on the
pivot land until February 2006 when
something occurred which brought a high level of sodium into the
soil resulting in the sudden
death of the lucerne pastures’.
He relied on a report of the Institute of the Soil, Climate and
Water, Pretoria, by Mr
Wessel Van Wyk attached to his report.
Mr Swanepoel further attaches
in his report the four sentence findings of Ms Mariette Truter of
the Agricultural research Council,
Biosystematics division, Mycology
Unit, Pretoria, who concludes that “the type of plant death
can be ascribed to chemical
toxicity, especially sodium toxicity”.
Swanepoel explained that a high level of sodium in the soil became
hazardous to
the plants. His evidence became somewhat less
convincing when both Mr De Kock called by the plaintiff as an
expert, and Dr Wayne
Truter refuted that the sodium level found in
the pivot land was of such a degree that it could pulverize the
plants. In any
event the plaintiff’s case is not that his
Lucerne died due to sodium toxicity.
There are certain aspects of Mr
Swanepoel’s testimony that are not satisfactory. He was very
evasive on a number of issues
raised with him under
cross-examination and gave long-winded responses which did not
answer the questions posed. The methods
he used during his
assessment of the pivot land were also not scientifically sound.
When conducting his assessment on the pivot
land he did not use the
Global Positioning System (GPS) to mark the locations he collected
the samples from. He did not specify
the location where he counted
the dead lucerne plants neither did he specify locations he drew the
soil samples representative
of the pivot land. Though he suggested
that there were suspended solids in the water that passed through
the pivot land this
does not feature in his report. Under
cross-examination he confirmed that he is not an expert on suspended
solids in water or
on plants. He also conceded that he made an
assumption on this score. While he intimates that there was soil
compaction on the
pivot land he says it was not necessary to check
the level of compaction as the plants’ roots ‘told it
all’.
He did not assess if the water pollution could have been
on the Trappiesdam stream before it reached the Municipality’s
oxidation ponds.
Mr De Kock holds a degree in
Agriculture and an
honours
degree in
Agronomy and Genetics. He has issued numerous publications, 30 of
which are on lucerne. He knew the plaintiff before
1985. He also
assisted and gave advice to the plaintiff on the establishment of
lucerne on the pivot land in 1985 and signed
authorization for him
to setup the pivot land where it is currently located. He
recommended that the pivot land be built on 4%
slope and that a soil
embankment (a brim) be erected around it. On 25 April 2009 he
conducted an investigation on the pivot land.
He maintained that
lucerne would not die from normal floods.
In the case at hand Mr De Kock
could not find any lucerne root deceases. The root relics had a pale
yellowish colour which in
his view is prominent in the case of
drowned lucerne. He found that the soil was dispersed on the surface
and filled with organic
substances which he attributed to effluent
from the sewerage works. In his opinion the probable cause of the
lucerne’s
death was lack of oxygen in the soil caused by the
clogging of the soil pores as result of material such as paper,
other organic
substances and a buildup of carbon dioxide within the
soil profile. Contrary to Mr Swanepoel’s conclusion he could
not
find any sodium toxicity in the soil profile. To this end he
indicated that there are fields in which the sodium level is higher

than that found on the pivot land which yields good Lucerne. Like
Swanepoel he counteracted Dr Wayne Truter’s report.
Professor Gruywagen, of the
University of Stellenbosch, holds numerous degrees in Agriculture
(animal science and animal nutrition).
Around September 2010 he
received the white paper-like material for testing from Mr
Swanepoel. He had to determine if the amorphous
piece of material
received was of plant or animal origin. He took a toilet paper as a
reference point to compare with the unknown
sample under various
magnifications (15x and 120x magnifications) and found them to be
identical. He concluded that the material
was not of an animal
origin but toilet paper (soft tissue paper).
Dr Wayne Truter, a senior
lecturer at the University of Pretoria holds degrees in Agriculture.
His thesis in Msc Agric focused
on the agricultural utilization of
waste products such as the sewerage sludge. He also holds a PhD in
environmental science.
He conducted an assessment on the pivot land
with his assistant. He selected three sites to conduct the analysis.
On the property
he had 10 observation points selected randomly
across the land to acquire a reflective data referencing each point
with a GPS
for later identification. He took five samples at each
point at two depths to eliminate errors. He took the top-soil at
0-30cm
depth to give an indication of what was happening in the root
zone and the sub-soil at 30 cm downwards which serves as a memory

bank of historical cropping and natural impacts. Naturally nutrients
would wash downwards and accumulate at the sub-soil, he
stated.
Samples taken from the top soil were mixed together and those taken
of the sub soil were also separately grouped together.
Dr Truter opined that the soil
pH (an indication of the acidity or the alkalinity of the soil) does
not change overnight. Overall
the pH levels of the soils were higher
than acceptable for lucerne production. The pH increased over time
due to applied land
management practices pre-flooding occurrence.
The values of phosphorus were below what is optimally required for
crop production.
Potassium is an important micro-nutrient required
for crop production. The values thereof on the land were very high
and this
could be toxic to the plants. Nevertheless potassium is
mobile and would leach to the deeper level. Calcium is also an
important
micro-nutrient. Its values were very high for both the top
and the subsoil although this would not be negative for the plant

growth. He intimated that such high values would not happen
overnight but was buildup over time. He also found magnesium to be

also on a high side.
Dr Truter proceeded to explain
that the value of the sodium was high for all the sites and this
would affect the normal growth
of the plants. This was a result of
long term chemical buildup which did not happen in the space of a
month. He added that agricultural
practices puts pressure on the
soil and increases its changes of chemical degradation. The soil
compaction on the pivot land
was still acceptable for plant growth.
Dr Truter had regard to the
rainfall pattern evinced in Mr Swanepoel’s report which ranged
between 164mm and 151mm in January
and February 2006. He also had
regard to the fact that the lucerne stood in the water for two weeks
and concluded that the water
table must have been above the soil
surface and that lucerne died due to the excessive amount of water.
High water tables leads
to soil saturating much quicker. The soil
has over the years become severely degraded chemically. He records
that a reduced yield
can be expected on a degraded land which cannot
only be ascribed to nutrient toxicities but possible physical
impedances caused
by the degradation of the soil structure through
soil chemical build up and occasional disturbances of sensitive soil
through
cultivation in conjunction with vast amounts of water not
draining away but subduing the vegetation for unusual extended
periods
of time.
Dr Truter disagreed with Mr De
Kock that the soil compaction led to the death of the lucerne. The
lucerne was not established
at an appropriate area but on a natural
waterway low lying area. The property is on a flat plane. A typical
wetland formation.
He opined that soil embankment also contributed
to the water remaining on the pivot land. He stated that if the
domestic sewage
sludge was contaminated by industrial processes
heavy metal pollution becomes of concern and there was no evidence
to this effect
on this score.
Dr Truter further explained
that the white paper-like material was sent to the laboratory of
microscopy and microanalysis at the
University of Pretoria. The
material was analyzed by a microscopicsts under different
magnification. The laboratory determined
that it was a high carbon
source typical of a plant origin and not synthetic. They could not
say if it was toilet paper. He however
opined that the paper-like
material would not kill lucerne at its prime growth.
The unchallenged evidence of
Rossauw was that the oxidation ponds were constructed in a way that
would make it impossible for
storm water in its natural cause to
overflow even on tempestuous weather conditions and descend to the
plaintiff’s lucerne
land. This much was conceded by Mr Benade
who in his address contended that the plaintiff’s case is
based on the substandard
final effluent flowing out of the last of
these oxidation ponds (the irrigation dam) into the catchment dam
and discharging its
contents into the Trappiesdam stream. Mr De Kock
and Dr Truter are
ad idem
that the sewerage effluent has in
general beneficial plants growth elements.
It is common cause that the
Municipality’s final effluent is used for irrigation by Dr
Rous. During the inspection
in loco
the flotsam and jetsam
(plastic bags, bottles and other material) could be noticed along
the stream from the town of Colesburg
before the stream reaches the
Municipality’s oxidation ponds area. Therefore a strong
likelihood exists that the foreign
material that the plaintiff saw
on his land may have come from the town of Colesburg. The plaintiff
nearly gave his case away
under cross-examination when he intimated:
“
Mnr Botha:
Die vraag is wat is binne in die stroom?
Mnr Van Wyk:
Ja u sien dit nie op die film
daarso nie, maar wanneer daar nou ‘n vloed kom, dan-kyk u moet
onthou hierdie is ‘n deel
van die vloed wat daar afkom as dit
kom vloed. Dan kom hierdie goed saam in Trappiesdam algeheel af,
spruit- dan kom ‘n klomp
goed af. U het gesien hoe lyk dit toe
u daar besoek het nou onlangs, toe uself daar was, het u gesien daar
langs die weir waar
ons gestaan het daar bo. Het u gesien hoe lyk
bottles en ander klomp goed, daar is menige klomp goed, dooie honde
ook, u het dit
gesien. Tot dooie goed, bokke, allerhande goed.
Daar
kom ‘n magdom goed van die dorp se kant af.
Mnr Botha:
Maar dis juis die punt-
Mnr Van Wyk:
maar nou juis, en ek het reeds
met Mnr Rossouw ook geskakel dat ons moet die goed probeer skoon
maak.
Mnr Botha
: dit is juis die punt daar kom
magdom goed van die dorp af.
Mnr Van Wyk:
Right, right, right, nou goed
wat is die vraag verder?”
The evidence of the plaintiff
to the effect that following the flood there were plastic bags,
bottles, toilet papers, condoms
and other filth which originated
from the sewerage works is irreconcilable with what he said above
and with the further evidence
which suggests that the debris does
not land in the irrigation dam.
Although not specifically
pleaded the plaintiff’s case is that not only was the lucerne
killed by untreated solids and/or
human waste with accompanying
chemicals but also the suspended white paper-like material. As
already alluded to Mr De Kock’s
observation was that the
lucerne drowned in 2006 due the lack of oxygen through the
accumulation of material (organic substances
which he attributed to
effluent of the sewerage works) on its surface which sealed the
ground off. That the dispersive action
of the soil particles (i.e.
the soil particles not in its structural condition) closed the whole
soil profile resulting in a
buildup of carbon-dioxide. He could not
identify what the white film or deposit on the soil structure was.
Neither did he take
the soil samples nor of the white film observed
on the soil for testing. He similarly did not take pictures or
record any reading.
He was content that there was ‘
something
there that caused the sealing of the soil surface.’
In
my view this cannot be enough. Be that as it may, the value of his
evidence became debased when he intimated that this white
film could
have settled on the soil at any period between 2006 and April 2009.
Only the plaintiff testified
that there was a white paper-like material on his pivot land
following the floods of February 2006.
On the photo bundle,
particularly on pictures taken around 24 July 2007, almost a year
after the death of Lucerne, the plaintiff
is depicted picking up the
white paper-like material in the stream path leading to the weir. Mr
Botha, for the Municipality,
argued that on this aspect and on
numerous others the plaintiff is a single witness who had every
reason to gild the lily where
necessary, therefore, his evidence had
to be approached with caution. In examination-in-chief the plaintiff
testified that in
2006 he kept the white paper-like material he
picked up on pivot land. Under cross–examination he states
that the white
paper-like material were picked up in 2007. He
states: “
Ek wil nie graag vat aan die goed persoonlik nie.
Mnr Swanepoel het al die monsters en al die goed, die grond en al
die ander
gevat, die plantery in die grond. Hierdie was ook ‘n
deel van die goed wat op die land was.”
On occasion the
plaintiff would say that in 2007 when he took the pictures there
were no paper-like material on the pivot land
and later would change
to say there may have been some.
Mr Swanepoel testified that
when conducting an investigation in July 2007 he did not observe the
remnants of the white-paper like
material on the pivot land.
It needs to be mentioned that
Mr Swanepoel tried to demonstrate that the final effluent may have
contained suspended toilet paper
through an illustration he made in
Court of how a toilet paper would dissolve or disintegrate in water.
Mr Botha challenged this
form of an illustration as lacking any
scientific basis or value. Mr Benade conceded that Mr Swanepoel was
not an expert on suspended
material in water but merely made an
illustration to the Court for better understanding. Save the
plaintiff’s evidence
to the effect that he noticed toilet
paper on the lucerne field following the floods there is no
scientific or expert evidence
suggesting that the lucerne field was
infested for an extended period with suspended paper-like material.
The water sample taken
in 1985 does not show any quantity of
suspended material content. Neither is there evidence linking the
alleged suspended white
paper-like material to the Municipality’s
sewerage works. The plaintiff makes the following statement under
cross-examination
which is inimical to his case:
“
Mnr Botha:
Gee
u nou toe dat daardie papieragtige stof wat u nou daar so na beduie
in die boks, dat dit wel in die Trappiesdam spruit kon gewees
het bo
die rioolwerke? Is dit nou wat u besig is om te sê?......
So u is nie nou meer so oortuig dat daai
definitief uit die rioolwerke uitkom nie. U gee nou toe dit kon dalk
uit die spruit bokant
die rioolwerke ook gekom het
Mnr Van Wyk:
Kom
ons sê so. Die sloot wat deur die dorp loop, ja. Dit kon dalk.
Kom ons sê so.”
Mr De Kock advanced the
argument that according to studies conducted in the USA 22, 4 gram
of paper pulp per square meter would
be adequate to kill lucerne.
There is no evidence indicative of the fact that the flood water
that passed over the lucerne land
contained any paper pulp and if so
in what quantities. If regard is had to Prof Cruywagen’s
conclusion that the white paper-like
material is toilet paper the
question still remains that there is clearly no nexus established
that it originated from the final
effluent discharged from the
irrigation pond.
Although an expert is called by
a particular litigant he should remain dispassionate, neutral and
objective.
He should not
be influenced as to form or content by the exigencies of litigation.
An expert witness is there to assist the Court
in arriving at the
just decision. See in this regard
Schneider
No and others v AA and another
2010 (5) SA 203
(WCC)
at 211J - 212B;
Stock
v Stock
1981 (3) SA 1280
(A)
at
1296E-F;
Diners
Club SA (Pty) Ltd v Singh and another
2004 (3) SA 630
(D)
at 660F-H.
The following dictum appears in
Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A)
at
371G - H:
“
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.”
Mr Swanepoel tried hard to
rescue the plaintiff’s case. While the plaintiff’s case
was that his lucerne was waterlogged
for two weeks Mr Swanepoel
contradicted him. He confirmed on several occasions that the
difference between the highest to the
lowest point of the pivot land
was 1, 2503 m. He even went to the extent of saying that the
plaintiff may have been mistaken
with his 12 m difference. When
realizing that his version was deadly to the plaintiff’s case
he changed course to say that
the slope of the lucerne field was at
12 m elevation from the highest to the lowest point of the land. He
also signed the joint
expert report wherein he agreed that the
Lucerne drowned. However, strangely, under cross examination he was
adamant that the
lucerne did not drown. He states for example:
“
And I was satisfied that water was coming
over on that land, it is normal, it is absolutely normal for rain
water, for floods whatever,
there is no problem with that. But it
never versuip [drown], because it can’t stand for more than two
weeks under water,
so they didn’t ‘versuip’
.
Mr Swanepoel’s concerted
attempt at assisting the plaintiff as opposed to giving objective
evidence does not bode well.
LH Hoffmann
et
DT Zeffertt
The
South African Law of Evidence
4
th
addition at 102
states: ‘
If an expert’s opinion is to carry any
weight, it is essential for him to state his reasons. As we have
seen, the Court
should not ordinarily accept a bald statement of
opinion on the very point which it has to decide”.
It is
axiomatic that Swanepoel’s proposition that lucerne died due
to sodium toxicity without laying any basis for this
stands to be
rejected.
Mr De Kock’s independence
and objectivity must be seen in the light that in 1985 he assisted
the plaintiff to establish
his lucerne on what appears to be a
natural waterway. The perception that he was therefore contributory
negligent must have been
ever present in his mind causing him to
adopt a self-preservation or defensive stance. Hence while the
plaintiff’s testimony
had always been that the lucerne
pastures was waterlogged for two weeks, like Mr Swanepoel he refuted
the statement. In my view
he was not in a position to disagree as he
had not witnessed the waterlogged field whereas the plaintiff did.
None of the experts
visited the property when it was turned into
wetland or soon thereafter. They only did so a year or two following
the disastrous
incident. I do not blame them for the delayed
observation or tests because they only reacted to the invitation to
perform their
expert duty.
I am not swayed that Dr
Truter’s evidence could be merely regarded as theoretical as
Mr Benade, for the plaintiff, sought
to suggest. Dr Truter visited
the pivot land and its surrounding areas and made assessments based
on what he found. I am satisfied
that the methods he employed in
collecting the data and conducting the analysis were sound. I have
no reason to doubt the veracity
of his scientific investigation and
the credibility of his testimony.
Dr Truter suggested that the
general slope of the pivot land was nowhere near the 1.2 meters as
Mr Swanepoel initially sought
to point out or 4% gradient (12 m
gradient from one side to the other). He found the lowest point to
be 1,301m above the sea
level while the highest point was at 1,304
m. There were areas lower than this as a result of the soil
depressions. The field
was a lot uneven. To exacerbate matters the
plaintiff built the soil embankment thereon on the recommendations
of Mr De Kock.
This created a dam situation on the field and made
the water drainage on the land difficult. When the land became
flooded the
plaintiff did not open the sluice gate for the soil
embankment to ease the high water levels because in his words :
“
Die substance is hierdie klomp gemors, wat
sal dit nou help ek maak oop daar? En daai gemors, wil u gaan werk in
daai klomp gemors.
Dit stink man. Dit is ‘n gemors daarso. Ek
gaan nie in ekskuus tog ek gaan nie werk in daai tipe goeters nie.”
In the final analysis, and
having regard to the rainfall pattern at the time the probabilities
are such that the water-table must
have been very high. There is no
question that the lucerne would die if it stood in 50mm of the water
for a period of two weeks.
As the experts suggest, it does not take
polluted water to kill the lucern. If the lucerne is submerged in
the clean water for
weeks it would still die.
The following dictum appears in
International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A)
at
700E - I.
'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.”
The plaintiff who bore the onus
failed to establish that the wrongful conduct on the part of the
Municipality led to the eventual
end of his lucerne crop. Even if
the Municipality’s conduct was not what one would expect from
such a responsible organ
of state, I am nevertheless satisfied that
no nexus has been established between the poor management of the
municipal sewerage
plant or oxidation ponds and the damage, if any,
suffered by the plaintiff. In the light of my finding it follows
that the issue
of the plaintiff’s contributory negligence
should fall away.
In the result the plaintiff’s
action must be dismissed with costs, which must follow the outcome.
ORDER:
The plaintiff’s claim
is dismissed with costs which must be taxed on a party and party
scale, such costs to include the qualifying
fees of the expert
witness, Dr Wayne Frederick Truter.
_____________________________________
MV PHATSHOANE
JUDGE
NORTHERN CAPE HIGH COURT
On
behalf of the plaintiff
Adv
H Benade
Instructed
by
Duncan
& Rothman
On
behalf of the Defendant
Adv
CH Botha
Instructed
by
Du
toit -Bomela