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[2020] ZASCA 53
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Petropulos and Another v Dias (1055/2018) [2020] ZASCA 53; [2020] 3 All SA 358 (SCA); 2020 (5) SA 63 (SCA) (21 May 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1055/2018
In the matter between:
MARINA
PETROPULOS FIRST
APPELLANT
NIK
MOROFF & ASSOCIATES
CC SECOND
APPELLANT
and
ARTUR
FERNANDO PERREIRA
DIAS RESPONDENT
Neutral
citation:
Petropulos & Another v Dias
(Case no
1055/2018)
[2020] ZASCA 53
(21 May 2020)
Coram:
PONNAN, SALDULKER, VAN DER MERWE,
MAKGOKA AND MOKGOHLOA JJA
Heard:
3 March 2020
Delivered:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, and by publication on
the Supreme Court of Appeal website
and release to SAFLII. The time and date for hand down is deemed to
be 10h00 on the 21
st
day of May 2020.
Summary:
Neighbour law – duty of lateral support –
owed to land and buildings on it – English principle of lateral
support,
although influential, not part of our law – strict
liability – available in principle for breach of lateral
support.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Bozalek J sitting as court of first
instance):
judgment reported
sub nom
Dias v
Petropulos and Another
[2018] ZAWCHC 93
;
2018 (6) SA 149
(WCC);
[2018] 4 All SA 153
(WCC).
The
appeal is dismissed with costs, such costs to be paid by the
appellants jointly and severally, the one paying the other to be
absolved.
JUDGMENT
Makgoka
JA (
Ponnan, Saldulker, Van Der Merwe, and
Mokgohloa JJA
concurring)
[1]
This appeal concerns the nature, scope and ambit of the duty of
lateral support owed in respect of contiguous properties. The
court a
quo, the Western Cape Division of the High Court, Cape Town (Bozalek
J), concluded that the duty of lateral support is
owed not only in
respect of land but also buildings constructed on the land, save
where such land has been ‘unreasonably
loaded so as to place a
disproportionate or unreasonable burden on the neighbouring land.’
The appeal is with leave of the
court a quo.
[2]
The facts are comprehensively set out in the judgment of the court a
quo, which has been reported
sub nom
Dias v Petropulos and
Another
[2018] ZAWCHC 93
;
2018 (6) SA 149
WCC;
[2018] 4 All SA 153
(WCC). Briefly stated, the facts are: The
first appellant, Ms Petropulos, the respondent, Mr Dias, and Mr Dawid
Venter (Mr Venter),
Mr Kenneth Wentzel (Mr Wentzel) and Mr Peter
Babrow (Mr Babrow), owned adjoining properties in Camps Bay, Cape
Town, on a steeply
sloping mountainside. The land on which the
properties are situated, is bound by Theresa Avenue, on the upper end
of the mountain,
and Barbara Road, on the lower end. The respondent’s
property is situated in Theresa Avenue. It shares a boundary with the
properties of the first appellant and Mr Venter, both of which are
situated downhill in Barbara Road. At the relevant time, being
March
to August 2008, all of the properties, except for the first
appellant’s, which was still an undeveloped erf, had houses
built on them. The respondent’s house had been completed in
1994.
[3]
During March 2008 the first appellant and Mr Venter each undertook
excavations on their respective properties, near the respective
boundaries with the respondent’s property. The excavation on
the first appellant’s property was in preparation for
the
building of a house, while Mr Venter was preparing to build an
additional garage. The building works on Mr Venter’s property
were uneventful, and were completed in April 2008. The excavation on
the first appellant’s property, on the other hand, involved
fairly substantial excavations to produce three tiers, and for a lift
shaft. To provide lateral support, the three levels were
each secured
by a retaining wall. Mr Naumann, the first appellant’s husband,
an experienced builder, undertook the building
works on the property.
[4]
From May 2008, problems became evident on the respondent’s
property. A dip appeared in the garden; furrows appeared in
the
garden between the respondent’s property and the first
appellant’s; the respondent’s terra-force wall, and
the
ground under it, collapsed during the course of the construction of
the top retaining wall. Between 23 July and 1 August 2008,
there was
a major movement in the underlying ground. The entire slope on which
respondent’s property is situated, subsided.
The respondent’s
property moved laterally and downwards towards the excavation on the
first appellant’s property, resulting
in extensive structural
damage to the property. Cracks appeared in the walls, tiles, floor
slabs, the boundary wall as well as
the driveway adjacent to Theresa
Road. The pool rail detached from the house and a hairline crack
appeared in it. There were problems
on Mr Venter’s property,
too. The property subsided and cracks appeared thereon. On 23 July
2008 Mr Venter, because of safety
concerns, was forced to abandon the
property.
[5]
The respondent attributed the damage to his property to the
excavations undertaken by the first appellant and Mr Venter on their
respective properties. He instituted a claim for damages against
both, based on strict liability, for breach of the duty to provide
lateral support. It was alleged, among others, that the slope
mobilised through the mechanism of ‘a shallow slip circle with
uplift at the toe, resulting in vertical upward bulging of the ground
surface between Barbara Road and the structures facing onto
it; and
lateral movement towards Barbara Road.’ This allegation became
the focal point of the first appellant’s case
during the trial,
as will be clear later. The first appellant and Mr Venter each
defended the action and denied liability. The
first appellant also
joined the second appellant, Nik Moroff & Associates, the project
engineer for the works on her property,
as a third party to the
proceedings.
[6]
Before the trial commenced, an order was made, by a different judge,
to adjudicate the following issues separately in terms
of Rule 33(4)
of the Uniform Rules of Court:
(a)
Whether a common law duty to provide
lateral support to the respondent’s property was owed by each
of the first appellant
and Mr Venter properties;
(b)
Whether the excavations carried out on each
of the above properties in May or June 2008 breached this duty to
provide lateral support;
(c)
If so, whether as a result of the
respondent’s property being so deprived of such lateral support
by such excavations the
scree slope on which respondent’s
property was situated mobilised and subsided in June 2008.
[7]
The trial commenced before the court a quo on 21 November 2016.
During the course of the trial, Mr Venter reached an agreement
with
the respondent and ceased participation in the action, hence he takes
no part in this appeal. On 30 July 2018 the court
a quo
delivered its judgment. It declared that: the first appellant and Mr
Venter owed the respondent a duty to provide lateral
support to his
property; the excavations undertaken on their respective properties
breached that duty, as a result of which the
slope on which the
respondent’s property is situated, mobilised and subsided. No
substantive order was made against the second
appellant, except that
it was ordered to pay the respondent’s costs, jointly and
severally with the first appellant.
[8]
In this court, it was contended on behalf of the appellants that:
First, the first appellant did not owe a duty to provide lateral
support to the respondent’s property, inasmuch as the latter’s
property was no longer in its natural state. Second,
that the
excavations on the first appellant’s property did not breach
the duty to provide lateral support. Third, that the
excavation on
the first appellant’s property was not linked sufficiently
closely to the harm suffered by the respondent for
legal liability to
ensue (causation). And, fourth, that on the facts of this case, it is
inconceivable that the first appellant
should be held liable to the
respond in the absence of a finding of fault. Each of these
contentions will be considered in turn.
Is
the duty of support owed only in respect of land in its natural
state?
[9]
In answering this question, the learned judge undertook an extensive
analysis of the various authorities. This included
East London
Municipality v South African Railways and Harbours
1951 (4) SA
466
(E). There, it was held that our law of lateral support was the
same as English law, in terms of which the right is confined to
land
in its natural state and does not extend to constructions such as
buildings on it.
[10]
The court a
quo also considered the decision of this court in
Anglo
Operations Ltd v Sandhurst Estates (Pty) Ltd
[2006] ZASCA 118
;
2007 (2) SA 363
(SCA);
[2007] 2 All SA 567
(SCA).
The court a quo declined to follow
East
London Municipality
,
and concluded (at para 59)
[1]
that in our law, the duty of lateral support is owed to neighbouring
or contiguous pieces of land as well as the buildings on it.
However,
at para 60,
[2]
the court
expressed the following caveat to that general principle:
‘
However, too broad
a formulation of the right or duty of lateral support could lead to
conceptual and equitable difficulties, particularly
where the
contiguous parcels of land are situated on a slope. Where a property
has been unduly or unreasonably loaded through the
erection of
disproportionately large or heavy structures, it would seem unfair in
my view that a neighbouring piece of land should
attract an
equivalently onerous duty of lateral support’.
Later,
at (para 63)
[3]
the learned
judge summarised the position as follows:
‘
In the result, I
consider that the appropriate approach is to hold that a duty of
lateral support extends not only to land but also
to buildings, save
where such land has been unreasonably loaded so as to place a
disproportionate or unreasonable burden on the
neighbouring land’.
[11]
The appellants submitted that the court a quo was wrong by not
concluding that the duty of lateral support in our law is similar
to
English law, in terms of which the duty is owed to land only in its
natural state, and does not extend to artificial structures
such as
the buildings on it. Further, in English law, support for buildings
can only be obtained by means of a servitude, which
is obtainable by
a user of a building after at least 20 years or by agreement. This
principle of English law was enunciated more
than a century ago in
Dalton v Henry Angus & Co
(1881) 6 App Cas 740
and is best
expressed in the oft-quoted passage of Lord Penzance’s speech
at 804:
‘
[I]t is the law, I
believe I may say without question, that at any time within twenty
years after the house is built the owner of
the adjacent soil may
with perfect legality dig that soil away and allow his neighbour’s
house, if supported by it, to fall
in ruins to the ground.’
[12]
It is
necessary to examine the development of our own law in this regard.
The duty of lateral support owed to an adjacent landowner
corresponds
with the neighbour’s entitlement to such support. This means
that the right to lateral support is reciprocal
between neighbouring
landowners. That principle was first accepted into South African law
as a principle of neighbour law in
London
and SA Exploration Co v Rouliot
(1890-1891)
8 SC 74.
There it was held (at 93) that the right of lateral support
is a ‘well established natural right’, incidental to the
ownership of the property and not servitudal in nature.
Rouliot
was followed, albeit on different grounds, in
Johannesburg
Board of Executors and Trust Company Limited v Victoria Building
Company Limited
(1894)
1
OR
43
.
[13]
However,
the application of the principle to situations where land has been
improved with buildings or structures on it, and where
excavation
causes subsidence and damage to buildings, has given rise to two
contrasting views. Van der Walt
[4]
explains the divergent underlying philosophies thus:
‘
Milton argues that
the right of lateral support is explained in terms of two theories.
According to the one theory, the right of
lateral support is a
servitude arising from the natural situation of land (as opposed to
servitudes created by grant or prescription).
According to this
theory, the right would be restricted to the land in its natural
state and would not apply to buildings on the
land. Furthermore, any
infringement of the right would arise from the mere withdrawal of
lateral support and not only from damage
caused by such withdrawal,
with the implication that prospective damages could be awarded. The
second theory explains the right
of lateral support as a natural
right of property that is based on the principle
sic utere tuo
alienum non laedas
and protected by nuisance law. Seen in this
way, the right pertains to mutual respect for normal use of land and
there is no reason
why it should not apply to buildings as well.
Furthermore, liability for infringements of the right would arise
from actual damage
and not simply from withdrawal of the support, and
consequently prospective damages could not be claimed. Liability
would be strict.’
As
I have shown,
Rouliot
grounded the introduction of these
principles in our law on the second basis.
[14]
In
Victoria
and in
Phillips v South African Independent
Order of Mechanics and Fidelity Benefit Lodge and Brice
1916 CPD
61
it was held that Roman and Roman-Dutch law recognised a right of
lateral support for land and buildings. Consequently the defendants
were held liable for the collapsing of buildings caused by the
excavation of land on the boundary between two tenements. See also
Demont v Akals’ Investments (Pty) Ltd and Another
1955
(2) SA 312
(N), where Selke J (at 316B-E) said:
‘
An owner of land
is normally entitled to expect and to require from land contiguous to
his own such lateral support as would suffice
to maintain his land in
a condition of stability if it were in its natural state. A landowner
can, of course, alter the condition
of his land, for example by
excavating or building on it, but he cannot normally, by the mere
fact of doing that, acquire greater
or different rights to lateral
support. His basic rights … remain the same whatever he may
choose to do with his land. They
are rights ancillary to his
ownership, and they are enjoyed reciprocally by him and by all owners
of contiguous land; and, while
they exist unimpaired, any
infringement of them by the withdrawal or disturbance of lateral
support furnishes him with a cause
of action’.
[15]
However, a
different path was followed in
Douglas
Colliery Ltd v Bothma and Another
1947 (3) SA 602
(T) and in
East
London Municipality.
[5]
Those
cases relied heavily on English law and consequently concluded that
lateral support is owed only to land in its natural state,
and not to
artificial structures on it.
Douglas
concerned mining law. Neser J held (at 612) that there is no natural
right of support for that which is artificially constructed
on land.
The learned judge relied on a passage in Halsbury
Laws
of England
(Hailsham ed, vol 22 under the title
Mines
)
in which the following is stated at para 1341:
‘
There is no
natural right of support for that which is artificially constructed
on land: such a right cannot exist
ex jure naturae
for the
thing itself did not so exist. Therefore any right to the support of
such an artificial burden must in each case be acquired
by grant, or
by some means equivalent in law to a grant. Thus it may be acquired
by express grant, or implied grant, or by prescription,
or it may be
created by statute.’
[16]
In
East London Municipality
, a landowner had granted to the
municipality and the public in general a public road over his
property. The municipality laid high
tension electric cables along
the road. The defendant, in carrying out his quarrying operations,
removed the lateral support and
caused a subsidence. Reynolds J held
that in regard to artificial constructions on land our law was the
same as English law. Accordingly
he concluded, in line with English
authorities, that the right of lateral support extends only to land
in its natural state and
not to constructions such as buildings on
it.
[17]
Reynolds J (at 482H-484E) expressly declined to follow
Victoria
on
the basis that the Roman law authorities relied on by Morice J in
Victoria
were no authority for the conclusion that lateral
support was owed not only to neighbouring land but also to buildings
on it
.
The learned judge then referred to Halsbury Laws of
England (Hailsham ed (vol 11, para 640) in which the following is
said:
‘
The mere fact,
however, that there are buildings on his land does not preclude an
owner from his right against a neighbour or subjacent
owner who acts
in such a manner as to deprive the land of support, so long as the
presence of the buildings does not materially
affect the question, or
their additional weight did not cause the subsidence which followed
the withdrawal of the support.’
[18]
Over 50 years after the decision in
East London Municipality
,
this court in
Anglo Operations
had to consider whether the
principle of neighbour law should be extended to govern the
relationship between mineral rights holders
and owners of the same
land. It was held that the principle should be restricted to the
right of lateral support as between neighbouring
landowners, and that
the relationship between the landowner and the holder of mineral
rights in the same land is regulated by the
principle of servitude.
In the course of its judgment, the court considered the effect
of
Rouliot,
in respect of which it was pointed out (in para 8)
that the gravamen of the decision was that ‘a rule, similar in
content
to the English rule of lateral support, which provides
landowners, as an intrinsic element of their ownership, with the
right of
adjacent support of their land, should be incorporated into
our law’. The court took the view that the origin of the
principle was unimportant.
[19]
After dealing with the conceptual differences between English law and
our law, Brand JA cautioned (at para 17) with reference
to
Rouliot
:
‘
Equally erroneous,
in my view, is the statement that De Villiers CJ decided to
incorporate the English doctrine of lateral and subjacent
support,
with all its ramifications, into our law. On the contrary, I agree
with the statement by the Court a quo (at 366B) that
what had
happened in
Rouliot
was that:
“
De Villiers CJ and
Smith J simply introduced, as Judge-made law, a rule which they
regarded as common to all civilised systems of
law because, as they
perceived it, a lacuna existed. The Judges did not concern themselves
with the exact pedigree of the rule.
. . . The rule was introduced
because it was regarded as just and equitable.”’
[20]
It would thus seem that one of the ‘ramifications’ of the
English doctrine of lateral support, which Brand JA cautioned
against, is the slavish adoption of the restriction of lateral
support being owed to neighbouring land only, and not extending
the duty to buildings constructed thereon. This is surely
understandable. English law on this aspect is rigid, and results in
anomalies, as demonstrated in the passage from
Dalton
.
Therefore, the significance of
Anglo Operations
is two-fold.
First, it affirmed
Rouliot
as the correct statement of our law
on lateral support. Second, it qualified
Roulio
t, and brought
the principle of lateral support within the sphere of our neighbour
law.
[21]
In our
neighbour law, fairness and equity are important considerations. As
Hoexter JA explained in
Regal
v African Superslate (Pty) Ltd
1963
(1) SA 102
(A) at 114G those considerations are the basis of the law
between neighbours. Furthermore, in our constitutional context, the
principle
of lateral support must find expression in the
constitutional value of Ubuntu, which ‘
carries
in it the ideas of humaneness, social justice and fairness’.
[6]
The
English
law principle of lateral support in all its rigidity may well be
inimical to all these.
[22]
It is significant that in at least one common law jurisdiction,
Singapore, this principle has been jettisoned. In
Xpress Print Pte
Ltd v Monocrafts Pte Ltd and Another
[2000] SGCA 37
;
[2000]
3 SLR 545
, the appellant and the first respondent were neighbouring
landowners. As a result of excavation work done by the first
respondent
on his land for the purposes of construction, the building
on the appellant’s land suffered massive damage. The appellant
sued for, among others, wrongful interference of support, which was
dismissed by the trial judge on the basis of English law as
set
out in para 11 above.
[23]
On appeal to it, the Court of Appeal of Singapore held that the right
of support enjoyed by a neighbouring landowner extended
beyond the
land in its natural state to the buildings erected thereon. In
arriving at this conclusion, the court took the view
that the right
of support must have its roots in ‘the principles of
reciprocity and mutual respect for each other’s
property (at
para 43). With regard to English law, the court observed (at
paras 33 and 37):
‘
English law on the
subject of the right of support … contains a number of curious
propositions. If my neighbour’s land
is in its natural state, I
may not remove the soil on my land without providing alternative
support for his land; but if my neighbour
expends money and effort in
building a bungalow on his land, then I may excavate with impunity,
even though his bungalow may crumble
to the ground. Yet, my liberty
to ignore the support required by his house is not perpetual, but
lasts only for 20 years, at which
time any indolence in pursuing my
right to remove my soil is transformed into a positive right of
support in respect of his dwelling.
. . .
Perhaps only lawyers can
understand and appreciate how a simple issue such as this, through
the process of law, comes to be governed
by a mass of convoluted and
irreconcilable rules; surely only the bravest among them would
attempt to explain it to the average
citizen. For our part, we fail
to see any legal principle capable of supporting the distinctions
drawn by the cases. Further, we
are of the view that the proposition
that a landowner may excavate his land with impunity, sending his
neighbour`s building and
everything in it crashing to the ground, is
a proposition inimical to a society which respects each citizen`s
property rights,
and we cannot assent to it’.
[24]
These remarks are apposite, and accord with the principles of our own
neighbour law. So viewed, and in the light of this court’s
exposition in
Anglo Operations
, it is clear that the courts in
Douglas
and
East London Municipality
erred. It follows
that those decisions are not to be taken as correctly reflecting the
position of our law. The court a quo was
accordingly correct in
holding that the duty of lateral support was not limited to land in
its natural state, but extends to buildings
on the land.
[25]
However, as stated earlier, the court a quo articulated an exception
to that general principle. The court said that a duty
of lateral
support extends not only to land but also to buildings, save where
such land has been ‘unreasonably loaded so
as to place a
disproportionate or unreasonable burden on the neighbouring land’.
What exactly the court a quo intended to
convey by the quoted
expression is unclear. The exception is not without practical
difficulties. A typical example is that of a
landowner who builds his
or her home in full compliance with town planning and building
regulations and in accordance with architectural
plans. In terms of
the exception, such an owner bears the onus to prove that the
building had not ‘unduly or unreasonably
loaded’ the
land, or that it is not ‘disproportionately large’ or ‘a
heavy structure’. That is untenable.
[26]
Furthermore, the philosophical foundation of the exception seems,
with respect, doubtful. The learned judge relied heavily
on the views
of Professor Milton for the conclusion that the English principle of
lateral support is not part of our law. The learned
judge, said:
‘
Professor Milton
argues that the exception whereby the English law does not apply to
all artificial erections on land “so
long as the presence of
the buildings does not materially affect the question, or the
additional weight did not cause the subsidence
which followed the
withdrawal of support” was doubtfully of any real value.’
However,
in the same article, the learned author stated:
‘
It is an
inevitable tendency of modern life for more and more people to
gravitate to cities. As a result larger buildings must be
erected to
accommodate them and provide employment. The larger the buildings,
the greater the pressure on the soil and the less
the duty of lateral
support owed by neighbouring land. This, it is submitted, is an
illogical and unrealistic approach and, on
principle, it should not
be preserved’.
[7]
[27]
The approach of the court a quo therefore appears incongruous.
Furthermore, it unwittingly introduces a feature of the English
principle of lateral support, referred to in
East London
Municipality
, as set out in para 17 above. This is the very
principle which the court a quo had correctly declined to follow. It
follows that
the exception the court a quo sought to introduce cannot
be supported. As I demonstrate later in the judgment, there are
sufficient
safeguards in our law to meet the concerns sought to be
addressed by this exception.
Did
the excavations on the first appellant’s property breach the
duty of lateral support owed to the respondent?
[28]
Seven witnesses testified on behalf of the respondent, two for the
first appellant. The second appellant did not call any witnesses.
For
purposes of this appeal, only the evidence of the two geo-technical
experts, Dr McStay and Dr Day is relevant. The reason for
this is
that it is no longer in dispute that the respondent’s property
was damaged by the slope failure in July and August
2008. Both
appellants have, in their respective heads of argument in this court,
conceded that aspect. Implicit in this, is the
acceptance that there
was no prior damage or structural defects on the respondent’s
property before the slope failure. That
issue is one in respect of
which the respondent, his wife, Mr Wentzel, Mr Babrow and Mr Naumann
all testified. The other witness
was Ms Valentia Papanicolaou, whose
evidence related to the measurements of the ground movement from the
end of July. Nothing turns
on her evidence in the appeal.
[29]
About the geo-technical experts, Dr McStay, for the respondent, is an
engineering and environmental geologist, and a director
in charge of
a geo-sciences unit of an international engineering consultancy firm.
Dr Day is a practising specialist geo-technical
engineering
consultant and an adjunct professor of geo-technical engineering at
the University of Stellenbosch.
[30]
The court a quo gave a commendably detailed exposition of their
evidence. I would therefore focus on what I consider the salient
features of their respective opinions. It was common cause between
them that there was a slope failure which caused ground movement
on
the affected properties. However, they differed on the cause and
mechanism of the slope failure. I find it convenient to commence
with
Dr Day’s evidence.
[31]
The defining theme of Dr Day’s evidence was his distinction
between mechanisms of slope failure – one as a result
of the
removal of lateral support, and the other, slope instability. He went
on to explain how each of them manifested. In respect
of lateral
support failure, the primary cause of both ground movement and
failure is a reduction in the lateral (horizontal) pressure
exerted
on the face of the excavation. Here, the ground movement is confined
to the area of excavation. Regarding the failure due
to slope
instability, Dr Day explained that it is normally characterised by a
rotational or translational movement on the ground
above the failure
surface. In the event of a rotational failure, a scarp may develop at
the top of the failing mass and bulging
may occur at the toe. Unlike
in the failure caused by lateral support, here the area of slope
instability is generally not confined
to a particular property, but
may pervade a general area.
[32]
Applying these suppositions to this case, Dr Day testified that the
failure was caused by the removal of the weight of material
from the
toe of an already compromised slope, the mechanism of which is a deep
seated circular slip failure. On this mechanism,
according to Dr Day,
the failure would not be through the removal of lateral support, but
attributable to the general instability
of the hillslope, which, in
turn, was caused by a multiplicity of historical factors, including
the earlier excavations and loading
of the affected properties when
houses were built thereon, starting from the early 1980s.
[33]
According to Dr Day, the movement of the slope was triggered by a
combination of the excavation at the toe of the slope on
the
properties of the first appellant and Mr Venter, and the added weight
at the top of the slope on the properties of the respondent
and Mr
Babrow
.
He explained further that the excavation at the
toe of the slope had two effects. Firstly, it reduced the weight of
the soil at
the toe. Secondly, it reduced the shearing resistance of
the soil over the part of the failure plane, below the excavated
area.
When that happened, given the already compromised slope,
according to him, the excavation resulted in slope failure.
[34]
In line with his mechanism distinction theory, Dr Day went on to
explain that if the ground movement was only as a result of
the
removal of lateral support, it would have been confined to the area
immediately above the retaining wall, ie it would have
a localised
effect. As there was no sign of ground failure in the area
immediately above the retaining walls, Dr Day postulated
that the
ground movement was caused by general instability of the slope rather
than the removal of lateral support. This, as stated
earlier, was one
of the ways in which failure due to slope instability manifested
itself, ie it generally pervades a general area,
rather than
confinement to a particular property. Dr Day also thought it
significant that when the slope mobilised, neither the
excavation
itself nor the retaining walls built by Mr Naumann failed, but
continued to support the face of the excavation. This
included the
portion of the respondent’s land that fell inside the failure
zone. According to Dr Day, this further supported
his view that the
lateral support afforded to the respondent’s property had not
been compromised.
[35]
I turn now to the evidence of Dr McStay. The essence of his evidence
was that the deep-seated movement, which occurred under
the
properties of the first appellant and the respondent, was a slope
failure triggered by the removal of lateral support due to
the
excavation on the first appellant’s property. According to him,
the mechanism of the failure was a progressive one, ie
a series of
smaller slip planes immediately above the face of the excavation. In
Dr McStay’s opinion, both his ‘progressive’
failure
and Dr Day’s deep- seated circular slip failure theories
resulted from the removal of lateral support because the
mechanism in
each case was the same, namely the excavation on the first
appellant’s property, which was the main triggering
mechanism
for the slope instability. Thus, explained Dr McStay, it was largely
irrelevant whether there was a series of small progressive
failures
or the existence of a deep slip circle.
[36]
Dr McStay further testified that the respondent’s house itself
did not appear to have undergone extreme lateral movement
but rather
relatively small scale vertical settlement. This suggested that the
original foundation of the house was largely below
the active slip
circle causing the lateral movement. According to him, there was a
vertical down movement rather than just uplift,
as suggested by Dr
Day. To support this view, he had regard to the crack in the paving
between the respondent’s garage and
Theresa Avenue, which
movement straddled two properties. Dr McStay also explained why the
excavations on the first appellant’s
property stood for some
time before they affected the respondent’s property. According
to him, this was not unusual, as a
slope failure normally occurred
over a period of time, and not immediately, especially on a
deep-seated circle such as the one
in the present case.
[37]
That summarises the evidence of the two experts. To consider their
competing contentions, one has to bear in mind, the objective
facts.
Key among those is that the respondent’s property was damaged
when it moved laterally and downwards towards the excavation
on the
first appellant’s property. This happened because lateral
support, previously provided by the first appellant’s
property
to the respondent’s property, had been removed. Given these
considerations, the exact mechanism which caused the
removal of
lateral support is unimportant. The distinction by Dr Day in this
regard is artificial, has neither a factual nor legal
basis, and is
not borne out by the objective facts. It was rightly rejected by the
court a quo.
[38]
A further
string to the first appellant’s bow was this: as the
respondent’s property was contiguously situated on a
slope with
other properties, the weight of the first appellant and Mr Venter’s
properties was meant to support the entire
slope, and not only the
respondent’s property. Accordingly, so went the argument,
following the slope mobilisation and damage
to his property, the
respondent does not, as a matter of law, have a cause of action for
breach of lateral support. The court a
quo rejected this submission
as follows (at para 111):
[8]
‘
[O]ne reason is
the inherent illogicality of the proposition that if an excavation is
of such large proportions that it causes not
simply a localised
subsidence or failure but also one which undermines an entire slope
comprising multiple properties, then the
owner of a contiguous
property cannot sustain an action based on a breach of the duty of
lateral support. To accept this reasoning
would mean that a landowner
whose excavation or breach causes far-reaching damage affecting a
number of properties escapes liability
whilst land owners, the
consequences of whose breach are much more modest, are saddled with
strict liability’.
I
cannot fault this reasoning.
[39]
What is more, it became necessary for Mr Naumann to implement
remedial measures to arrest further slope failure, including
having
experts install anchors and to reinstate the lateral support
previously provided by the ground excavated from the first
appellant’s property. It is common cause that the bulk of these
measures were implemented on the first appellant’s
property,
where the major excavation took place. The significance of this, as
correctly pointed out by counsel for the respondent,
is that if the
lateral movement of the respondent’s property was caused by the
excavations on the first appellant’s
property, it is on that
property that the remedial measures had to be implemented. And it was
common cause that these remedial
measures in fact arrested the
movement of the slope.
[40]
Counsel for the appellants made much of the averment in the
respondent’s particulars of claim that the slope mobilised
through the mechanism of ‘a shallow slip circle with uplift at
the toe’ which had resulted in vertical upward bulging
of the
ground surface at the bottom of the first appellant and Mr Venter’s
properties. It was suggested that there was evidence
of such uplift
and bulging. This, according to the first appellant, was fatal to the
respondent’s case because the pleaded
mechanism fitted in with
the opinion of Dr Day that the slope mobilisation occurred when an
uplift took place at the toe of the
excavation and the slip circle,
thus excluding the removal of lateral support.
[41]
There is no merit in this contention. In
Gijzen v Verrinder
1965 (1) SA 806
(D) at 810D-F, it was pointed out that, in most
instances, the complaint of a plaintiff suing for deprivation of
lateral
support arises from a subsidence that was caused by the
removal of such support. Nevertheless, such a subsidence (ie one
caused
by the removal of lateral support) is not required for
a successful plaintiff action. By way of analogy, I conclude that is
not
required for a plaintiff in an action based on the removal of
lateral support to plead a particular mechanism through which such
removal of lateral support manifests.
[42]
The respondent’s averment as to the mechanism of the slope
failure was thus totally superfluous. Even in its absence,
the thrust
of his claim was clear: as a result of the excavation on the first
appellant’s property, lateral support owed
to his property was
removed; the slope mobilised in the process of which extensive damage
was caused to his property. It is therefore
patently opportunistic
for the appellants to seek to tie the respondent to a superfluous
averment in his particulars of claim.
[43]
In any event, the two mechanisms were fully explored during the trial
and it became clear that they overlapped; and that, in
essence, as
the court a quo correctly observed, they were variations of the same
mechanism. The position is analogous to the converse
situation, where
an issue not pleaded is fully traversed during the trial. As
explained in
Van Mentz v Provident Assurance Corporation of Africa
Ltd
1961 (1) SA 115
(A) at 122:
‘
In a case where it
is clear that the appellate tribunal has all the material before it
on which to form an opinion upon the real
issue emerging during the
course of the trial it will be proper to treat the issues as enlarged
(
Collen v Rietfontein Engineering Works
1948 (1) SA 413
(AD) at 433), where this can be done without prejudice to the party
against whom the enlargement is to be used (
Robinson v Randfontein
Estates, GM Co Ltd
,
1925 AD 173
at 198).’
See
also
Marine & Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26
(A) at 44H-45C).
[44]
In the
final analysis, the court a quo was faced with conflicting evidence
of a very technical nature. Where this is the case, the
resolution of
the dispute ‘must depend on an analysis of the cogency of the
underlying reasoning which led the experts to
their conflicting
opinions’ (
Buthelezi
v Ndaba
[2013] ZASCA 72
;
2013 (5) SA 437
(SCA) para 14). The court a quo
preferred Dr McStay’s evidence to that of Dr Day, and observed
as follows (paras 127-128):
[9]
‘
The opinions which
he [Dr McStay] expressed were rational and backed by consistent
reasons. What came through in his reports and
evidence was a
practical and common sense approach which demonstrated his wide
experience in the field…
As far as Dr Day is
concerned there is no doubting his expertise as a geo-technical civil
engineer and his evidence was very helpful
in understanding the
geological aspects of what took place on the site from March 2008
until the remedial measures were completed.
Although I do not doubt
Dr Day’s sincerity or his professional integrity, I gained the
distinct impression that he became
overly wedded to his client’s
case, including the notion that the geological event was not a
failure of lateral support.
Dr Day’s unwillingness to
accept that the Dias dwelling was in excellent condition prior to
2008, based on speculative
or weak evidence indicating the contrary,
suggested that he fell into the trap of approaching some of the
issues in the matter
in a less than balanced manner’.
[45]
Having carefully considered the totality of the evidence of the two
experts, the court a quo cannot be faulted for preferring
that of Dr
McStay. Of the two experts, it is Dr McStay’s evidence which
provided the most reasoned and cogent explanation
for what had
happened. His evidence closely matches the objective facts. It
follows that the respondent succeeded in establishing
that the slope
mobilisation had resulted from a breach of the duty to provide
lateral support due to the excavation on the first
appellant’s
property. Given the objective facts in this case, it would indeed
defy all logic for a court to hold that the
excavations by the first
appellant did not destabilise the respondent’s property and
thus breached the duty to provide lateral
support to it.
Causation
[46]
I turn now to causation. As explained in
Minister of Police v
Skosana
1977 (1) SA 31
(A) at 34E-35D, there are two distinct
questions in the causation enquiry. The first is a factual one and
relates to the question
whether the relevant conduct caused or
materially contributed to the harm giving rise to the claim. If it
did not, then no legal
liability can arise. If it did, then the
second question becomes relevant, namely whether the conduct is
linked to the harm sufficiently
closely or directly for legal
liability to ensue, or stated differently, whether the harm is too
remote from the conduct.
[47]
The
causa sine qua non
(the ‘but for’ test) is
ordinarily applied to determine factual causation. The central theme
of the first appellant’s
case was that the slope mobilisation
was a result of a multiplicity of factors, of which the excavation on
her property was but
one. In
Minister of Safety and Security v
Van Duivenboden
2002 (6) SA 431
;
[2002] 3 All SA 741
(SCA)
(para 25) it was explained:
‘
A plaintiff is not
required to establish the causal link with certainty, but only to
establish that the wrongful conduct was probably
a cause of the loss,
which calls for a sensible retrospective analysis of what would
probably have occurred, based upon the evidence
and what can be
expected to occur in the ordinary course of human affairs rather than
metaphysics.’
And
in
Minister of Finance and Others v Gore NO
[2006] ZASCA 98
;
2007 (1) SA 111
(SCA);
[2007] 1 All SA 309
(SCA):
‘
The legal mind
enquires: What is more likely? The issue is one of persuasion, which
is ill-reflected in formulaic quantification
… Application of
the ‘but for’ test is not based on mathematics, pure
science or philosophy. It is a matter
of common sense, based on
the practical way in which the ordinary person’s mind works
against the background of everyday-life
experiences.
[10]
The
test set out in
Van Duivenboden
and
Gore
received the
imprimatur of the Constitutional Court in
Lee v Minister for
Correctional Services
[2012] ZACC 30
;
2013 (2) SA 144
(CC) para
47.
[48]
Applying the above test to the facts of this case, it must be asked
whether, but for the excavation, the slope would have mobilised.
In
this regard, the excavation was extensive, involving the removal of
5413m³ of earth, 57 blasting shots as well as the removal
of
many large boulders. The lift shaft excavation was 13m in length,
5.5m in width and 9.5m deep. It was excavated up to about
6m from the
respondent’s property and done without any bracing or support.
It involved blasting at least one large boulder
and many others which
needed to be broken and removed. In these circumstances, it is hard
not to accept Dr McStay’s opinion
that there was a clear nexus
between the excavation and the slope failure.
[49]
There must be a logical explanation as to why, after standing
unaffected for 16 years, the respondent’s property mobilised
shortly after the major excavation on the first appellant’s
property in 2008 and why the movement ceased when the remedial
measures were effected. During his testimony, Dr Day utilised a
model to demonstrate the slip circle failure. After a demonstration
with reference to four blocks, the court a quo pointed out that in
terms of the model he used, a necessary condition of the slip
circle
was the removal of an excavation block, to which proposition Dr Day
agreed. He explained the role of excavation as follows:
‘
It was a
contributing element. There is no doubt about it. It’s no
coincidence that this failure occurred when excavation
was formed. So
the formation of the excavation contributed to the instability of the
slope, that is correct. But it contributed
to the instability of the
slope as opposed to a lateral support failure’.
[50]
It is also common cause that the excavation on Mr Venter’s
property stopped in April 2008. In answer to a direct question
during
cross-examination as to what event, thereafter, could have caused the
distress on the entire hill slope, Dr Day was constrained
to concede
that ‘the major event was the removal of ground which then set
the process of slope instability in motion ….’
After
suggesting that the rainfall was a contributing factor, he conceded
that the excavation was ‘a necessary condition’
for the
failure. The following excerpt from the evidence of Dr Day’s
cross-examination is illustrative of the centrality
of the excavation
to the slope failure and eventually the damage to the respondent’s
property:
‘
MR BEY: So Dr, it
is not clear that but for the Naumann [first appellant] excavation
the land on the Dias [respondent] property
behind the [Mr] Venter
property would not have failed? ---M’Lord, if the excavations
had not been formed we wouldn’t
be here today’.
I take that as a yes---
Yes’
[51]
The appellants emphasised that the role of the other factors such as
the innate instability of the slope, the excavation on
Mr Venter’s
property, and the winter rainfalls, should not be discounted. Of
course they should not. But, as shown above,
given the nature and
extent thereof, the excavation was central to the slope mobilisation.
As pointed out in
Van
Duivenboden
para 25 the
respondent was not required to establish the causal link between the
excavation and the damage to his property with
certainty. All that
was expected from him was to establish that the excavation was
probably the cause of the damage to his property.
[52]
In
Regal
, Ogilvie Thompson JA (at 116A-C) referred with
approval to the
American Restatement of the Law of Torts
, vol
IV at 277, where, dealing with factual causation, the learned authors
say:
‘
In some cases the
physical condition is not, of itself, harmful, but becomes so upon
the intervention of some other force –
the act of another
person, or force of nature. In such cases the liability of the person
whose activity created the physical condition
depends upon the
determination that his activity was a substantial factor in causing
the harm, and that the intervening force was
not a superseding
cause.’
[53]
Applying these tests to the facts of the present case, the excavation
on the first appellant’s property must be regarded
as a
‘substantial factor’ or a proximate cause of the slope
mobilisation. In the circumstances, it is safe to conclude
that but
for the excavation on the first appellant’s property, the slip
circle failure would most probably not have occurred.
I thus find a
direct and probable chain of causation between the excavation and the
slope mobilisation which caused damage to the
respondent’s
property. Factual causation was accordingly established.
[54]
With regard to legal causation, the court a quo expressed doubt
whether it was necessary to enquire into legal causation, since
liability was strict in the present case and ‘the question of
reasonable foreseeability does not arise’. With respect,
the
court a quo overlooked the fact that there has to be a measure by
which it is determined whether the conduct that factually
caused the
harm suffered, is too remote from the harm. The test provided by the
law for this part of the enquiry is a flexible
one, in which
reasonable foreseeability is but only one factor, among several.
Other factors include directness, the absence or
presence of a
novus
actus interveniens
, legal policy, reasonableness, fairness and
justice, as explained in
S v Mokgethi and Others
1990 (1) SA
32
(A);
[1990] 1 All SA 320
(A) at 40I-41D
.
It could well be
that in a particular case, such as the present, one or more or all of
reasonable foreseeability, directness, or
the absence or presence of
a
novus actus interveniens
, play a subsidiary role, or no role
at all. But it is difficult to imagine a case where legal
policy, reasonableness, fairness
and justice would play no role at
all.
[55]
Viewed in
this light, legal causation is necessary, irrespective of whether
liability is strict or not. As explained by the Constitutional
Court
in
Mashongwa
:
[11]
‘
No legal system
permits liability without bounds. It is universally accepted
that a way must be found to impose limitations
on the wrongdoer’s
liability. The imputation of liability to the wrongdoer depends
on whether the harmful conduct is
too remotely connected to the harm
caused or closely connected to it. When proximity has been
established, then liability
ought to be imputed to the wrongdoer
provided policy considerations based on the norms and values of our
Constitution and justice
also point to the reasonableness of imputing
liability to the defendant.’
[56]
In
International Shipping Co (Pty) v Bentley (Pty) Ltd
1990 (1) SA 680
(A) at 700H-J Corbett CJ neatly summed up the
position with regard to legal causation as follows:
‘
[D]emonstration
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 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”.’
[57]
In determining the presence of legal causation, the question is
whether, having regard to the considerations alluded to, the
harm is
too remote from the conduct or whether, it is fair, reasonable and
just that the first appellant be burdened with liability.
In my view,
the question should be answered against the first appellant.
No
fault liability
[58]
As stated already, none of the affected properties were in their
natural state. They had all been developed for the building
of
houses. It was submitted on behalf of the appellants that for that
reason, our law does not permit a claim under strict liability
for
breach of the duty of lateral support. The respondent’s claim,
it was submitted, should have been brought as an Aquilian
action, so
that negligence and wrongfulness on the part of the first appellant
could be established. In their heads of argument,
counsel submitted:
‘
The imposition of
strict liability can only be justified in principle where prospect of
direct harm is so obvious that there can
be no question of a lack of
foreseeability and where there is clear and obvious single cause. By
contrast, where potential for
harm, as in this instance where
mechanism of failure is more complicated, or obscure, and hence not
readily foreseeable, or involves
more than one cause, including a
contribution by the claimant, and the conduct may be neither
negligent nor unlawful, the entire
blame for the earth movement
should not be visited on one neighbour by virtue of a rule of strict
liability.’
[59]
Broadly stated, every landowner has a right to the lateral support
and where subsidence or other destabilisation occurs, as
a result of
excavations on an adjacent property, the owner of the adjacent
property will be liable in an action for damages irrespective
of
whether she was negligent or not. That is not to suggest that an
adjacent property owner is not entitled to excavate. His or
her
entitlement to do so, is limited by the duty not to withdraw the
lateral support which is afforded to the adjacent property.
The right
is reciprocal. Neither culpa nor dolus is a requirement for liability
for damage caused by the withdrawal of lateral
support. Of course, if
an aggrieved property owner can prove that he or she suffered
pecuniary loss through dolus or culpa, she
can likewise sue in delict
by virtue of the lex Aquilia.
[60]
It is now settled that liability in subsidence cases is strict.
In
D&D Deliveries (Pty) Ltd v Pinetown Borough
1991 (3) SA 250
(D) it was explained (at 253H-I) that:
‘
In
subsidence cases it is unnecessary to prove an unlawful act or
negligence; the cause of action is simply damage following upon
deprivation of lateral support. The action lies only against the
owner of the adjoining property, and each successive subsidence
gives
rise to a fresh cause of action’.
See
also
Gijzen
at 811E.
[61]
Prof JC van
Der Walt
[12]
offers the
following justification for strict liability:
‘
Liability based on
risk is usually created - either by legislation or by the courts - in
cases where a particular activity normally
entails an extra·
ordinary increase in the risk of harm to the community. Fleming
states it thus: “Certain types of
activity which involve
extraordinary risks to others, either in the seriousness of the harm
threatened or, more often, in its high
degree of probability, are
charged with responsibility for ensuing harm, even if the most
diligent care has been exercised to obviate
its occurrence. In these
situations, it is widely felt that he for whose benefit the risk is
created should bear the loss unavoidably
entailed rather than the
random victim.”
…
The most common
defences at the disposal of a defendant in cases of strict liability
are “act of God” (vis maior) and
fault on the part of the
injured party.’
[62]
There is sufficient safeguard in our law to meet the appellants’
concerns, in the form of legal causation, which, inter
alia, rests on
policy considerations. The elastic approach to legal causation
adopted by this court in
Mokgethi
is ‘sensitive to
public policy considerations and aims to keep liability within the
bounds of reasonableness, fairness, and
justice’. (See
De
Klerk v Minister of Police
[2019] ZACC 32
;
2020 (1) SACR 1
(CC)
para 19, referring to
Mokgethi
at 40I-41D).
[63]
Also, a cause of action based on strict liability in cases such as
this, serves to ensure that those who suffer damage are
not
non-suited because of the absence of fault or because of their
inability to prove the presence of fault. As is evident in this
case,
the respondent simply did not know exactly what was happening on the
first appellant’s property, other than that his
property was
damaged. Importantly, there is no attack on the strict liability
action as being contra bonos mores, or unconstitutional.
There are
therefore no policy considerations for our law to,
a priori
,
set itself against an action based on strict liability for breach of
lateral support, as cases always turn on their own facts.
[64]
In sum, the
answer to counsel’s submission is, first, that culpa or dolus
is not required for liability because the right
of support is a
natural right of ownership. Second, there are sufficient safeguards
and flexibility in our law so as to ensure
that one is not
unjustifiably punished at the expense of others. Third, liability
without fault here is usually restricted to damage
to life, limb and
property. On the facts the court a quo correctly held that the first
appellant is liable to the respondent. Although
there is no unanimity
among scholars on a theoretical justification for strict liability,
the authors of
Neethling-Potgieter-Visser
Law of Delict
[13]
observe:
‘
[w]here a person’s
activities create a considerable increase in the risk or danger of
causing damage, that is, an increased
potential for harm, there is
sufficient justification for holding him liable for damage even in
the absence of fault . . . Van
der Walt, however, points out that the
question whether or not the potential of risk has been increased
enough, will depend largely
on the legal convictions of the
community, as reflected in legislation or case law. This theory
[the risk or danger theory]
provides a satisfactory explanation for
most of the instances of strict liability which are recognised in our
law.
Nonetheless, a
satisfactory and universally accepted scientific basis for every
instance of liability without fault has not yet
been found, and will
probably never be found. A flexible approach is therefore necessary
so that each specific case may be valued
on its own merits and judged
accordingly.’
[65]
It remains to sum up the position of our law on the right of lateral
support owed between contiguous properties. First, it
is a natural
right incidental to the ownership of the property and not servitudal
in nature, as enunciated in
Rouliot
. Second, it is a principle
of neighbour law as explained in
Anglo Operations
, which rests
on justice and fairness, as articulated in
Regal.
Lastly, it
is owed to land not only in its natural state, but extends to
buildings upon it. Although influential in the acceptance
of the
right of lateral support into our law, English law was not slavishly
implanted into our law.
[66]
Before I conclude, something needs to be said about the manner in
which this litigation has been conducted. The order of separation
followed on an application by the appellants, which was opposed by
the respondent. The costs of that application were reserved.
The
trial of the separated issues was lengthy, taking place over a total
of 27 days. In this court, the record spans 4248 pages,
which
includes the court a quo’s judgment 129 pages. It is thus
disquieting that despite this circuitous journey, in terms
of the
separation order, the judgment of this court would not result in a
final determination of the dispute between the parties.
It was with
this in mind that it was enquired of counsel during the hearing of
the appeal whether the parties would be prepared
to accept the order
of this court as a final word on the liability dispute between the
parties. Counsel for the parties accepted
that this judgment will
finally dispose of all the disputes between the parties, as far as
liability is concerned.
[67]
It is
regrettable that this court has, once again, to express disquiet on
how rule 33(4) is often not properly considered.
[14]
As it was stated in
Denel
(Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) para 3:
‘
Rule 33(4) of the
Uniform Rules ─ which entitles a Court to try issues
separately in appropriate circumstances ─
is aimed at
facilitating the convenient and expeditious disposal of litigation.
It should not be assumed that that result
is always achieved by
separating the issues. In many cases, once properly considered, the
issues will be found to be inextricably
linked, even though, at first
sight, they might appear to be discrete. And even where the issues
are discrete, the expeditious
disposal of the litigation is often
best served by ventilating all the issues at one hearing,
particularly where there is
more than one issue that might be
readily dispositive of the matter. It is only after careful thought
has been given to the anticipated
course of the litigation as a whole
that it will be possible properly to determine whether it is
convenient to try an issue separately.
But, where the trial Court is
satisfied that it is proper to make such an order ─ and,
in all cases, it must be so satisfied
before it does so ─ it is
the duty of that Court to ensure that the issues to be tried are
clearly circumscribed in its order
so as to avoid confusion.’
See
also
ABSA Bank Ltd v Bernert
[2010] ZASCA 36
;
2011 (3) SA 74
(SCA) para 21.
[68]
In
Consolidated News Agencies (Pty) Ltd
(in liquidation) v Mobile Telephone Networks and Another
[2009]
ZASCA 130
;
2010 (3) SA 382
(SCA), this court cautioned against
piece-meal litigation:
‘
Piece-meal
litigation is not to be encouraged. Sometimes it is desirable to have
a single issue decided separately either by way
of a stated case or
otherwise. If a decision on a discrete issue disposes of a major part
of a case, or will in some way lead to
expedition it might well be
desirable to have that issue decided first.
This court has warned
that in many cases, once properly considered, issues initially
thought to be discrete are found to be inextricably
linked. And even
where the issues are discrete, the expeditious disposal of the
litigation is often best served by ventilating
all the issues at one
hearing. A trial court must be satisfied that it is convenient and
proper to try an issue separately.’
[15]
[69]
It is by no means clear that these principles informed the decision
to separate issues in this matter. In my view, the issues
raised in
the separated order are inextricably linked to the rest of the issues
in the pleadings. They could conveniently have
been ventilated in one
hearing. This should have been clear to the parties and the judge who
granted the separation order.
[70]
In all the circumstances the appeal has to fail. The following order
is made:
The
appeal is dismissed with costs, such costs to be paid by the
appellants jointly and severally, the one paying the other to be
absolved.
____________________
T
M Makgoka
Judge
of Appeal
APPEARANCES:
For
Appellants: M Seale SC (with him M Steenkamp)
Instructed
by: Mellows & De Swardt Attorneys, Cape Town
Symington
& De Kok Attorneys, Bloemfontein
For
Respondent: RWF MacWilliamson SC
Instructed
by: Smith Tabata Buchanan Boyes, Cape Town
Honey
Attorneys, Bloemfontein
[1]
Para 152 in the original text.
[2]
Para 153 in the original text.
[3]
Para 156 in the original text.
[4]
AJ van der Walt
The
Law of Neighbours
(2010) at 96 para 3 2 1.
[5]
East
London Municipality
was
uncritically followed in
Gordon
v Durban City Council
1955
(1) SA 634
(N) and in
John
Newmark & Co (Pty) Ltd v Durban City Council
1959 (1) SA 169
(N).
[6]
Per Madala J in
S
v Makwanyane
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (2) SACR 1
(CC)
para
236.
[7]
Quoted in para 144 of the judgment of the court a quo (Footnote
omitted.)
[8]
Para 207 in the original text.
[9]
Paras 222-223 in the original text.
[10]
Minister
of Finance and Others v Gore NO
[2006]
ZASCA 98
;
2007 (1) SA 111
(SCA);
[2007] 1 All SA 309
(SCA) para 33
(Citations omitted.)
[11]
Mashongwa
v Passenger Rail Agency of South Africa
[2015] ZACC 36
;
2016 (3) SA 528
(CC);
2016 (2) BCLR 204
(CC) para
68. (Citations omitted.)
[12]
JC
van Der Walt ‘Strict liability in the South African law of
delict’ (1968) 1
CILSA
at
63.
[13]
J Neethling & JM Potgieter
Neethling-Potgieter-Visser
Law of Delict
7ed (2014) 379-80.
[14]
See,
for example,
Firstrand
Bank Ltd v Clear Creek Trading 12 (Pty) Ltd and Another
[2015]
ZASCA 6
;
2018 (5) SA 300
(SCA) paras 9-10;
Feedpro
Animal Nutrition (Pty) Ltd v Nienaber NO and Another
[2016]
ZASCA 32
para 15;
Cilliers
NO and Others v Ellis and Another
[2017]
ZASCA 13
paras 12-14; and
Transalloys
(Pty) Ltd v Mineral-Loy (Pty) Ltd
[2017]
ZASCA 95
para 6.
[15]
Consolidated
News Agencies (Pty) Ltd (in liquidation) v Mobile Telephone Networks
and Another
[2009]
ZASCA 130
;
2010 (3) SA 382
(SCA) paras 89-90. (Citations omitted.)