Humphrys N.O. v Barnes (A1236/02) [2003] ZAWCHC 76; 2004 (2) SA 577 (C) (3 December 2003)

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[2003] ZAWCHC 76
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Humphrys N.O. v Barnes (A1236/02) [2003] ZAWCHC 76; 2004 (2) SA 577 (C) (3 December 2003)

reportable
in the high court of South Africa
(cape of good hope provincial division)
Case No A1236/02
In the matter between:
paul leatham humphrys N.o. Appellant
and
henry john barnes Respondent
judgment: delivered 3 December 2003
Griesel
J:
On
22 May 1997 the appellant (plaintiff
a quo
), in his capacity
as trustee of the P & L Trust, bought an im­movable
property, erf 2297 Plattekloof, situated
at 3 Fuschia Close,
Plattekloof (
the property
), from the respon­dent
(defendant
a quo
). I will refer to the parties as they were
in the court
a quo
. Almost exactly a year later, a wall
between the property and the lower neighbouring property collapsed,
giving rise to fairly
extensive damages. The plaintiff
unsuccessfully sought to recover those damages from the defendant in
the magistrate’s court,
thus giving rise to the present appeal.
By
agreement between the parties the trial in the lower court was
confined to the question of liability, with the question of
quantum
standing over for later deter­mination.
Factual Background
During 1996 the
defendant bought the property, which was vacant at the time. The
property is situated on a steep slope on the Tygerberg,
overlooking
the Cape Peninsula. The defendant designed and built a dwelling
thereon. On the southern boundary between the property
and the lower
adjoining property was a pre-existing retaining wall, approximately
two meters high and erected some five years earlier
by the owner of
the adjoining property, one Newman (
Newman
). The defendant
obtained permission from Newman to increase the height of the
existing retaining wall by building on top of it.
Shortly after
com­pletion of the dwelling, the defendant sold the property to
the plaintiff, as mentioned earlier.
The
deed of sale contained
inter alia
the following provisions:
‘
3. On transfer, possession of the property and all
the risks and benefits of ownership shall pass to the purchaser.
…
9. WARRANTIES AND
UNDERTAKINGS
9.1 The property is hereby sold
voetstoots
and
subject to all existing servitudes and title deed conditions.
9.2 The parties hereto agree that this agreement
con­stitutes the entire agreement between them and that no
warranties or representations
other than those con­tained herein
have been made by any of the parties, or their agents. No variation
of this agreement shall
affect the terms hereof, unless such
variation has been reduced to writing and signed by both parties.’
On 7 May 1998,
after heavy rain, the wall in question collapsed, resulting in
fairly extensive damage to both properties. The plaintiff
alleged
that this was due to a latent defect
‘in that the side of the
property bordering on the adjacent property was not ade­quately
and/or properly retained and/or supported’.
Faced with the
voetstoots
clause quoted above, the plaintiff pleaded that
the defendant was aware of the defect and had a duty to disclose it
to the plaintiff,
but intentionally concealed the existence of such
defect. The plaintiff did not, however, persist in this claim –
either at the
trial before the magistrate or on appeal – and
nothing further needs to be said in this regard.
The
plaintiff’s alternative cause of action was based squarely on the
actio legis Aquiliae:
the plaintiff pleaded that the damage
was caused by the defendant’s alleged negligent conduct in various
respects, most importantly,
in that the defendant constructed the
retaining wall without the necessary structural integrity; he failed
to construct the wall
in accordance with the National Building
Regulations; and he failed to obtain the services of a structural
engineer or other form
of suitably qualified assistance to attend to
the struc­tural design of the wall.
At
the trial in the court
a quo
, the plaintiff adduced the
evidence,
inter alia
, of a structural engineer, Mr Lee. It
appeared from his evi­dence that the defendant extended the
retaining wall and built
a free-standing wall of at least 1,2m on
top of it. The end result was a wall without the necessary
structural integrity. As Mr
Lee explained, the retaining portion, as
extended, was too high and of inadequate width and should not have
carried any ‘
sur­charge
’. The free-standing wall
increased the wall’s ‘
bending moment
’ by adding wind as
an additional aggravating factor.
The
defendant also filled the area immediately behind the extended
retaining portion, which fill amounted to approximately one third
of
the total soil level supported. As Mr Lee explained, the extension
of the retaining portion and the additional fill dramatically
increased the bending moment of the wall. In addition, the defendant
paved the filled area immediately behind the extended retaining
portion and utilised it as a driveway for motor vehicles. According
to Mr Lee, this too acted as a force increasing the bending
moment
of the wall.
The
defendant also failed to provide adequate drainage for the filled
and paved area. Mr Lee testified that at least a soil drain
and weep
holes were required for adequate drainage. The lack of drainage
caused the soil to become saturated, which exerted a pressure
almost
double that of dry sand.
In
summary (according to Mr Lee), the defendant – without
professional assistance or design – extended the wall and altered
its immediate vicinity in such a manner as to introduce or increase
all the aggravating factors which would add to the bending
moment of
– and thus tend to topple – the wall.
The exact nature
and dimensions of the wall – both the portion constructed by the
defendant and the original wall built by Newman
– were heavily
disputed at the trial, as was the exact cause of its eventual
collapse. In the view I take of the matter, it is
not necessary to
resolve these disputes. The fact of the matter is that the
magistrate found – and this finding was accepted
by both sides on
appeal before us – that
‘neither the original retaining wall
nor the extension to it was constructed with the necessary integrity
and in accordance with
National Building Regulations’
. The
magistrate’s judgment proceeds as follows:
‘
Both owners, Mr Newman and Mr Barnes, had a duty
of care to ensure the integrity of the structure. Neither of them
complied with this
duty of care. Both building operations showed that
there were contributary [sic] factors relating to both building
projects and with
the evidence presently before this Court, it is not
possible to quantify the extent of the cause of collapse and
consequently attribute
liability to a particular party.’
The magistrate
accordingly granted absolution from the instance with costs against
the plaintiff on the narrow basis that he had
failed to prove that
it was the negligence of the defendant – rather than the
negligence of Newman – which had caused the wall
to collapse.
Discussion
As
I read the judgment of the court
a quo
, the magistrate was
satisfied –
that
the defendant had been negligent in respect of his construction of
the wall,
and
that
such negligence was a contributory cause of the collapse of the
wall.
However,
the fact that Newman’s negligent construction was
also
a
contributory cause of the collapse, and the fact that the extent of
each contribution could not be deter­mined, meant that
legal
liability could not be attributed to the defen­dant.
On
appeal before us, neither party attacked the magistrate’s
find­ings numbered (a) and (b) above. Instead, the argument was
focused purely on the third finding, namely the question of
causation.
In
my respectful view, the magistrate’s approach on the question of
causation runs counter to established authority. The correct
approach to a situation such as the present is to be found in the
judg­ment of Schreiner JA in
Kakamas Bestuursraad v Louw,
1
where the learned Judge expressed approval of the Anglo-American
principle â€“
‘
that a plaintiff can hold a defendant liable whose
negligence has materially contributed to a totality of loss resulting
partly also
from the acts of other persons or from the forces of
nature, even though no precise allocation of portions of the loss to
the contributing
factors can be made.’
Boberg
2
explains the significance of the whole passage from which the above
extract is taken as follows:
‘
This passage is important because it places the
onus of proof in its proper perspective. As Schreiner JA said, it is
not for the
plaintiff
to prove
which part
of the loss
the defendant caused. But the learned judge might have added (though
in the circumstances before him it was unnecessary
to do so) that the
defendant
can escape liability for the whole loss by proving
which part
he caused. In short, the harm is presumed to be
indivisible, and the plaintiff need prove only that the defendant
contributed materially
to the totality of it. The onus is then on the
defendant to rebut the presumption by proving that the harm is in
fact divisible and
that he did not cause all of it – which he does
by proving which part he
did
cause.’ [Author’s emphasis.]
The
learned author continues:
3
‘
Turning next to the situation where the
plaintiff’s damage was caused partly by the negligent conduct of A
and partly by the negligent
conduct of B, we apply the same
presumption of indivisibility of the damage to hold both A and B
liable for the loss. They are in
fact “joint wrongdoers” in terms
of s 2 of the Apportionment of Damages Act, which makes them jointly
and severally liable for
the whole damage with a right of recourse
inter se
. But the application of the Act presupposes that A
and B caused “the same damage” (as s 2(1) expressly states) –
i.e. that
the plaintiff’s damage is one and indivisible. It is
presumed that the damage is indivisible, but a defendant who can
discharge
the onus of proving that he caused only a distinct part of
the plaintiff’s harm is liable only for that part which he caused.”
In
the present instance it was therefore incumbent upon the plaintiff
to prove only a material factual link between the defendant’s
negligent conduct and the collapse of the wall. He was not required
to quantify the extent of its causal contribution. On the evidence
as a whole, I am satisfied that the plaintiff had discharged that
onus. It was then for the defendant to discharge the onus of
proving
that he caused only a distinct part of the plaintiff’s harm, which
he failed to do. It follows, therefore, that the magistrate’s
order cannot stand.
Concurrence of actions
Before
concluding this judgment, it is necessary to refer briefly to a
separate and more fundamental issue that was not raised directly
in
the judgment of the court
a quo
or counsel’s arguments. It
concerns the concurrence of contractual and delictual claims in the
present factual matrix. Given
the fact that there was a direct
contractual relationship between the present parties, which contract
included
inter alia
the
voetstoots
clause that I have
quoted above, counsel were requested to submit further argument on
the question whether the plaintiff in these
circumstances has in
principle a delictual claim against the defendant.
Counsel
on both sides responded to this request with com­mend­able
diligence, both coming to the conclusion that the plaintiff
does
indeed, in principle, enjoy a delictual claim in circumstances such
as the present. In view of this mutual concession, and
because it
played no role in the
ratio
of the judgment of the court
a
quo
, I shall only very briefly state my reasons for coming to
the same conclusion.
It
is well established that contractual and delictual liability can
exist side by side in the same factual scenario, depending on
the
facts of each case. In the present case, the plaintiff’s claim
arises from physical damage to property (the collapsed wall,
subsided soil and paving). Even in the absence of the agreement of
sale, the defendant’s conduct and resultant damage could still
have constituted a delict committed against the plaintiff. If, for
example, the plaintiff had not been the immediate, but a subsequent
purchaser of the property, the defendant would have remained
delictually liable towards him, as he would be within a foreseeable
class of victims.
4
Parties to a
contract are free to either limit or exclude liability in respect of
certain types of actions. Some of these provisions
may in­deed
be applicable to the delictual liability of a party. In each case it
will merely be a question of which type of
liability has been
excluded and, in a situation of concurrence, the exclusion of a
specific action may still allow the retention
of an alternative one.
It is thus important to give effect to the intention of the parties
to the contract so as to determine the
precise field of application
of these stipulations.
It
is clear that a
voet­stoots
clause only limits the
contractual
liability of a seller for latent defects in the
article sold. It does not exclude liability for anything else, such
as for negligence
or misrepre­sen­tation. Thus in
Cockroft
v Baxter,
5
the court (per Ogilvie Thompson J) held that there appears to
be –
‘…
no sufficient warrant for expanding the ambit
of a mere agreement to buy
voetstoots
(without more) beyond
its recognised sphere of relieving the vendor from liability for
latent defects to the extent of precluding
the buyer from relying
upon any misrepresentation whatever as to the condition of the
article sold. If a vendor wishes to guard himself
against all
liability for all representations as well as for all defects he
should, in my opinion, incorporate into the sale an appropriate
condition in that behalf.’
6
In
order to exclude liability for non-fraudulent representations, a
contractual clause such as Clause 9.2
supra
7
is frequently employed. Similarly, exclusionary or indemnity clauses
excluding delictual liability are, of course, an everyday
occurrence.
8
No such clause appears in the deed of sale between the present
parties, with the result that the plaintiff is not precluded from
claiming damages in delict from the defendant in the present
circumstances.
Conclusion
For
the reasons set out above, I would accordingly issue the following
order:
The appeal is upheld with costs.
The order of the magistrate is set aside and replaced with the
following:
‘
(a) It is declared that the plaintiff is
entitled to recover damages from the defendant as a result of the
collapse of the wall in
question in an amount to be determined by the
court or agreed between the parties.
(b) The defendant is ordered to pay the costs of
suit.’
The matter is remitted to the magistrate for deter­mination
of the question of
quantum
.
B M Griesel
Mlonzi
AJ
:
I
agree.
R N Mlonzi
1
1960
(2) SA 202
(A) at 222A – C. See also
Silva’s
Fishing Corporation (Pty) Ltd v Maweza
1957 (2) SA 256
(A) at 264A – B;
Norris
v R A F
[2001]
4 All SA 321
(SCA) para [16] at
325h
– i
.
2
The
Law of Delict
(1984) 404 – 405
.
3
Op
cit
405.
4
Compare
Tsimatakopoulus
v Hemmingway Isaacs & Coetzee CC and Another
1993 (4) SA 428
(C) at 435C – H.
5
1955
(4) SA 93
(C) at 98B – C.
6
See
also
Fitt
v Louw
1970 (3) SA 73
(T)
at
77E – F:
‘
The
term “voetstoots” means no more than that the non-fraudulent
seller is relieved from liability for latent defects…’
7
Para
supra
.
8
See e.g.
Durban
Water Wonderland (Pty) Limited v Botha and Another
1999
(1) SA 982
(SCA) 991C – D.