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[2019] ZASCA 38
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Bergrivier Municipality v Van Ryn Beck (1269/2017) [2019] ZASCA 38; 2019 (4) SA 127 (SCA) (29 March 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1269/2017
In
the matter between:
BERGRIVIER
MUNICIPALITY APPELLANT
and
RHYNARDT
VAN RYN
BECK RESPONDENT
Neutral
Citation:
Bergrivier Municipality v Van Ryn Beck
(1269/2017)
[2019] ZASCA 38
(29 March 2019)
Coram:
Navsa AP, Zondi, Mathopo and Mocumie JJA and Eksteen AJA
Heard:
28 February 2019
Delivered:
29 March 2019
Summary:
Delictual claim for damages – whether in prevailing
circumstances Municipality had a legal duty to take steps to prevent
flooding
of property – lack of evidence – negligence,
wrongfulness and causation not established.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape Town
(Saldanha, Yekiso and Savage JJ sitting as court of appeal):
1 The appeal is upheld
with costs.
2 The order of the full
bench is set aside and is substituted as follows:
‘
The
appeal is dismissed with costs.’
JUDGMENT
Navsa
AP (Zondi, Mathopo and Mocumie JJA and Eksteen AJA concurring):
[1]
When one is told, in isolation, that a rate payer and resident of a
small town, had his house flooded on three occasions encompassing
two
successive two-year intervals and sustained ostensible extensive
damage to his house, due to the municipal storm-water drainage
system
being unable to cope with heavy rainfall, one’s instinctive
reaction, is that the local municipality should be held
liable to
compensate such resident for the damage caused by the last flood.
That instinctive reaction, because of the lack of evidence
to fix the
municipality with liability, dealt with more extensively later in
this judgment, has to give way to the compelling opposite
conclusion.
[2]
The question in this appeal is whether the appellant, the Bergrivier
Municipality (the Municipality), established, in terms
of the
Local
Government Municipal Structures Act 117 of 1998
, should be held
liable for damages allegedly sustained by the respondent, Mr Rhynardt
Van Ryn Beck, as a result of the flooding,
during 2011, of his
residential property, situated at 31 Buitenkant Street, Piketberg,
Western Cape (the Property), at the foothills
of the Piketberg
Mountain. The property is situated within the jurisdiction of the
Municipality.
[3]
At the outset, the trial court (Binns-Ward J), had regard to the
issues presented by counsel on behalf of the parties for
adjudication.
They were as follows:
‘
. . . word die Hof
versoek om ‘n bevinding te maak ten aansien van die volgende:
7.1 Die nalatige
verbreking al dan nie van Verweerder se regsplig;
7.2 Indien so bevind, of
daar ‘n kousale verband is tussen die beweerde skade en
sodanige verbreking van die regsplig;
7.3 Of Eiser nalatig was
ten opsigte van sy eie skade en tot welke mate.’
[1]
In
respect of negligence and whether the respondent had established a
legal duty on the part of the Municipality, the court held
as
follows:
‘
[N]otwithstanding
the sympathy I have for the plaintiff and his family for the trauma
and financial loss that they have experienced
as a result of the
successive flooding of their home, I consider that the plaintiff has
fallen short of discharging the onus to
establish the existence of
the alleged duty in law on the part of the defendant or its negligent
breach. In the circumstances the
appropriate order would be one
absolving the defendant from the instance with costs.’
[4]
In respect of causation, the following was the comprehensive basis
for the conclusion reached by the trial court:
‘
The Plaintiff’s
counsel submitted that if the chute constructed by the defendant
after the 2011 flood had been built after
the 2009 flood the damage
to the plaintiff's property would, at the very least, have been
lessened. At first blush the argument
might appear attractive, but it
does not bear scrutiny in the context of the evidence, or rather,
lack thereof in the particular
case.
It may be accepted that
the damage to the plaintiff's property occurred as a consequence of
the inability of the catch pit and drainage
pipe at the bottom end of
De Hoek Street to divert the volume of water streaming onto De Hoek
Street. The water that was not drained
into the catch pit would be
that which would be pushed around the corner at the bottom on De Hoek
Street and into the plaintiff's
driveway off Buitenkant Street. To
ascertain whether the chute would have made any difference to the
extent of the damage to the
plaintiff’s property one would need
evidence of the maximum capacity measured in units – say cubic
feet of water per
minute – of the catch pit, an informed
estimate, measured in the same units, of the volume of water bearing
down De Hoek
Street, and also evidence of the maximum capacity of the
chute to divert water that could not be accommodated by the catch
pit.
Such evidence would establish whether the amount of water that
the combined drainage facility of the catch pit and the chute could
not accommodate was materially less than that which in fact probably
poured past the catch pit and round the bend into the plaintiff’s
property.
When I put these
considerations to the plaintiff's counsel during argument, he
submitted that it was for the defendant to have adduced
such
evidence. His submission in that regard appeared to be predicated on
an assumption that the evidence that had been led established
what he
called “
a prima facie case”
against the defendant.
It is indeed so that if a plaintiff who bears the onus establishes a
prima facie
case, an evidential burden falls on the defendant
to lead evidence to rebut it, failing which the
prima facie
case will be sufficient to establish the claim. The mere fact that
the drainage system was unable to cope with the flood in question
and
that the plaintiff's property was damaged as a result does not,
however, as I have sought to explain, amount, without more,
to a
prima facie
case. Nor does the defendant's construction of the
chute and its putting in place the related measures described
earlier, without
more, establish that the defendant could by
relatively cheap means have done something that would have
effectively averted the
harm.’
Consequently,
the following order was made:
‘
1. Subject to the
provisions of paragraph 2, below, the defendant is absolved from the
instance with costs.
2. The defendant is
ordered to pay the plaintiff's costs occasioned by its special plea
of non-compliance with the requirements
of
s 3
of the Institution of
Legal Proceedings against certain Organs of State Act 40 of 2002 and
in the associated application for condonation.’
[5]
This appeal by the Municipality, with the leave of this court, is
directed against the order of the full bench of the Western
Cape
Division of the High Court, which overturned trial court’s
order. The full bench made the following order:
‘
(1) The appeal is
upheld with costs.
(2) The respondent is
liable for the proven damages sustained by the appellant during the
2011 flooding. The quantification and
the apportionment (if any) of
such damages stands over for later determination.
(3) The respondent is
also ordered to pay the costs of the proceedings thus far in the
court
a
quo
.’
The
detailed background is set out hereafter.
[6]
The respondent had purchased the property in 2005 from a developer
who had acquired the land at the urban edge of Piketberg.
The land on
which the property is situated was subsequently zoned for housing
development. A house was built on the property, which
the respondent
took occupation of during 2006. The Municipality had provided the
respondent with a certificate of occupation in
accordance with the
provisions of s 14(1)
(a)
of the
National Building Regulations and Building Standards Act 103 of
1977.
[2]
The property is located
on the south-eastern boundary of the suburban area at its lowest
point at the corner of Buitenkant and
De Hoek Streets. These two
streets, which are material to the dispute between the parties, were
laid out before the respondent’s
property was developed.
[7]
De Hoek Street separates the residential area from farmland that
stretches all the way up the mountain slope. The street has
a steep
gradient of 45mm:122mm. It stretches down the mountainside from the
main street higher up for a distance of 250 metres
before it reaches
the respondent’s property. De Hoek and Buitenkant Streets both
slope downwards to the point where they
converge at the respondent’s
property. The Municipality had removed part of the curb of the
pavement alongside the respondent’s
property in front of his
garage to allow vehicular access to the property.
[8]
It is common cause that the respondent’s property was flooded
on three separate occasions, namely December 2007, June
2009 and
finally during April 2011.
[3]
During 2007 whilst the respondent and his family were away on
vacation, Piketberg experienced a cloudburst accompanied by gale
force winds, which led to flooding and extensive damage to residences
and businesses. He was informed of this and returned home
to deal
with the effects of the flooding. The respondent testified before the
trial court that a number of rooms of his house were
damaged as was
his furniture. His swimming pool had been flooded. He witnessed sheep
droppings in the flooded areas of his house,
ostensibly carried there
from the adjacent farmlands by floodwater.
[9]
The respondent did not take any photographs of the flood damage in
2007. He testified that in that year, shortly after the flooding
had
occurred, municipal officials inspected the property and undertook to
take the necessary steps to ensure that the drainage
system would, in
future, prevent flood damage. I shall, in due course, deal with the
Municipality’s denials of the alleged
undertaking and with the
evidence adduced on its behalf.
[10]
As recorded by the trial Judge the extent of the flooding during 2009
and 2011 was captured in photographs taken by the respondent.
It is
clear that the municipal drainage system at and near the intersection
of Buitenkant and De Hoek Streets had been completely
overwhelmed by
the sheer volume of storm-water run-off on both occasions, with the
result that the respondent’s property
had been very badly
flooded.
[11]
The trial court noted that the flooding had caused physical damage to
the building and its appurtenances on each occasion.
The respondent,
with reference to the photographs, testified to that effect. The
volume of water that entered the property in 2009
was considerable.
The water level against a wall in the backyard reached 0.75 metres
above the ground. The force of the water was
such as to cause the
garage doors to shift out of their frames. The extent of the flooding
in 2011 was severe but not as severe
as in 2009.
[12]
In respect of the flooding in 2009, the respondent described how the
water had flowed not only down De Hoek Street but also
from the
adjacent farms over the Municipal street catch pits nearest his house
and onto the gravel road next to the back of his
house and onto his
property. Water had also flowed across his driveway into the front of
his residence and garage. His backyard
was flooded as well as his
swimming pool. There was cattle dung on his property, once again
indicating that water had flowed from
the adjacent farmlands. The
photographs the respondent presented showed muddied waters gushing
over from the farmlands into De
Hoek Street and across the catch-pit
in De Hoek Street. Debris from vegetation carried over by flood
waters was visible on the
respondent’s property.
[13]
The respondent, his father and others who had assisted in an attempt
to avert further flooding, dug a trench on the adjacent
farm property
to divert the water. It proved ineffective. Another municipal
inspection followed upon the 2009 flooding. The respondent
was
adamant that municipal officials once again undertook to do what was
necessary to avert flooding in the future. This included,
so he said,
improving the storm-water drainage system and ensuring regular
maintenance of catch-pits and trenches.
[14]
According to the respondent, he had regularly contacted municipal
officials thereafter, in an attempt to persuade them to fulfil
their
‘undertakings’. In support of this assertion he produced
letters from his attorneys sent in December 2009 and
in February 2010
demanding that maintenance be undertaken. There had been no response
from the Municipality.
[15]
In relation to the flooding in 2011 the respondent testified that the
water had flowed onto his property from the upper reaches
of De Hoek
Street and the farmlands. The pattern was the same as in 2009. There
was vegetation and cattle manure that had been
carried over to his
property and there was similar damage to the property as on the prior
occasion.
[16]
As noted by the full bench, the respondent, during the trial,
tendered a set of rainfall figures which he had obtained from
Agri-Oorsig, an agricultural organisation. The total monthly rainfall
figures for the years 1999-2012 were provided as well as
daily
rainfall figures for 2012-2014. This was objected to by the
Municipality but admitted by Binns-Ward J on the basis of the
exercise of his discretion, in terms of s 3 of the Law of Evidence
Amendment Act 45 of 1998. The statistics indicated that in December
2007 the total montly rainfall was 40 mm. In May 2009 it was 47 mm
and in April 2011, 33 mm. It must be appreciated that rain can
fall
intensely in a very limited time period and that the monthly and
daily statistics must be assessed in that light. In short,
rain-fall
statistics do not provide a complete or accurate picture of the
nature and intensity of the rain that caused the flooding.
I shall
deal more fully with this aspect in due course. It was common cause
that in 2007 there had been a sudden cloudburst followed
by intense
rainfall accompanied by gale force winds within a short space of
time. In short, the storm that led to the flooding
in 2007 could
rightly, at least on the face of it, be regarded as a freak storm.
[17]
Mr Werner Simon, a qualified technical engineer who has a National
Diploma in Civil Engineering from the Cape Peninsula University
of
Technology testified at the trial on behalf of the respondent. He has
extensive practical experience and worked for the better
part of his
career as a site agent and surveyor and has experience in the
upgrading and maintenance of roads, canals, storm-water
pipelines,
paving and general construction work.
[18]
In relation to the flooding complained of, Mr Simon testified that
the Municipality’s drainage system was inadequate
to deal with
the volume of water that had fed into De Hoek Street. He stated that
blockages within the drainage system further
impeded its
effectiveness.
[19]
It is common cause that subsequent to the flooding that took place
during 2011,
the Municipality effected substantial changes
to the storm-water drainage system in the vicinity of the
respondent’s property
and particularly in relation to the
intersection of De Hoek and Buitenkant Streets. A single catchment
pit was converted into a
double catch-pit. In addition, an open
v-chute was constructed to lead water away from the property. This is
what Binns-Ward J
was referring to in the passage from the trial
court’s judgment set out in para 4 above. Mr Simon took the
view that the
improved system was now adequate to deal with
normal
rainfall, if it was not obstructed in any way. In support of his view
he pointed out that there had been no flooding during the
rainfall on
13 August 2012 (43 mm), 3 June 2013 (46 mm) and & July 2014 (38
mm). These are the total monthly figures for each
of the respective
months. These statistics accord with those recorded for the days on
which the flooding of the respondent’s
house occurred.
[20]
According to Mr Simon, when one is dealing with a steep gradient such
as that of De Hoek Street, there is a proven method of
reducing the
velocity of the flow of the water, namely, the use of dissipaters
built onto the road surface. The material parts
of Mr Simon’s
evidence, in respect of how the Municipality ought to have planned to
avoid flooding of residential properties
such as the respondent’s,
is usefully set out in para 30 of the judgment of the full
bench as follows:
‘
[T]hat is a good
question you know your design is
you actually design your roads
and your services for the one in fifty year flood supposedly. I don’t
know if they done that
I don’t know who designed it I don't
know who constructed the road at the services but that is what you
use. Obviously you
use your history of all your other roads next to
it the adjacent roads and so forth you don’t go from first
principles and
design everything again, you use what you’ve got
on your system and so forth.
. . .
[D]aar moes al vantevore
vloede gewees het, iemand moes bewus gewees het dat daar water afkom
maar nee ek sou nie. Die kundiges
wat dit ontwerp het moes 'n bietjie
hulle werk beter gedoen het . . . dink ek . . . ‘n fantastiese
idee want dit sal in die
toekoms baie skade – ek sal nie sê
daar sal nie weer skade wees nie, maar dit sal baie van die skade in
die toekoms
verhoed. That’s taking our surface water away out
of the road reserve.’
[4]
(My emphasis.)
[21]
Mr Simon’s evidence, at first blush, indicates that he was of
the view that the flooding in 2009 and 2011 depicted in
the
photographs and testified to by the respondent, could be regarded as
a one-in-fifty-year flood, which is the standard he testified
that
municipalities and development actors are obliged to adhere to and
plan for. A careful examination of the evidence, however,
reveals
that Mr Simon accepted that, where you have floodwater running down
the mountain side from different directions down a
steep gradient to
the extent testified to, the storm-water drainage system that was in
place, would be overwhelmed. He accepted
that thunderstorms could
cause a greater volume of rain to fall within a very limited period
and that too would have a severe impact
on the capacity of the
storm-water drainage system to cope. Mr Simon readily accepted that
the ability of a drainage system to
cope with a downpour has to be
seen against the intensity of the flow of the water at a given time.
So, for example, rainfall over
a shorter period with high intensity
would have greater impact on the storm-water drainage system. He
appears to have accepted
that the mountain-side fire that occurred
shortly before the last flood, would have impacted on the flow of the
water on the basis
that there would be less vegetation to decrease
the velocity of the flow of the water. The evidence adduced on behalf
of the Municipality,
referred to later in this judgment, was that
there had been such a fire. Added to that is the velocity of the
water as it made
its way down the steep gradient. Furthermore, Mr
Simon’s evidence in relation to whether the municipality
planned for a one-in-fifty
year flood referred to in para 20 above
was, at best, equivocal.
[22]
As to the planning and the steps the Municipality ought to have
taken, the following are the material parts of Mr Simon’s
evidence:
'Normale omstandighede,
ja. Maar ons het 'n – ek weet nou nie die geskiedenis van
watter datums en watter jare nie, maar jy
het twee vloede gehad, en
jou eerste vloed wat plaasgevind het in 2009, het vir jou tog 'n
aanduiding gegee daar is 'n probleem.
En twee jaar later het jy weer
nog 'n vloed gehad, wat sê daar is weer 'n probleem. So dink u
nie dat daar moes daadwerklik
werk gemaak geword het deur die
owerhede en sê, luister ons het 'n probleem in die area, kom
ons sorteer dit uit voor die
volgende vloede. Wat hulle wel gedoen
het na die tweede vloed, is daar verbeterings aangebring.'
[5]
[23]
Mr Simon could not, in the absence of more detailed available
information concerning the rainfall during the flood periods,
determine the quantity, in cubic metres or by any other measure, of
water that the storm-water drainage system, at relevant times,
had to
cope with, nor was the court afforded any insight into what the
velocity of the water was as it careered toward the respondent’s
house. In relation to what is set out in para 19 above and taking
into account what is set out at the beginning of this paragraph,
one
is unable to conclude what the true classification of the floods in
question were, nor is one any the wiser about what kind
of
storm-water drainage system or adaptations would be required to avert
floods of the kind experienced by the respondent. Even
Mr Simon’s
evidence concerning the cost of R1 million that might be incurred to
address the problem, is less than convincing.
Its viability is
affected, not only by the factors set out above but, also, by his
less than emphatic assertions in that regard,
more particularly on
whether it would be the complete answer to potential future flooding.
It also appears that at the time of
the 2011 flood, blockages in the
municipal storm-water drainage system was caused by vegetation being
swept into it from the farmlands
by the ferocity of the flow of the
water.
[24]
The Municipality tendered evidence in support of its case, that it
could not be held liable for the flooding and that to do
so in the
circumstances of the case, would be to impose too heavy a burden on
municipal authorities country-wide, which it substantiated,
our law
did not countenance. The Municipality also took the view that the
flow from the adjacent farmlands fell within the jurisdiction
of
another authority, the West Coast District Municipality, and it was
the latter’s responsibility and it could thus not
be held
responsible for the damage caused.
[25]
Mr Johannes Breunissen testified in support of the Municipality’s
case. At material times he had been the Municipality’s
manager
of civil services. He had accumulated twenty two years’
experience with the Municipality. Mr Breunissen had no involvement
in
dealing with the aftermath of the 2007 and 2009 flooding of the
respondent’s property. He did, however, inspect the
respondent’s
property after the flooding in 2011.
[26]
It was Mr Breunissen who, after the 2011 flood, had been responsible
for effecting the improvements to the drainage system
in the vicinity
of the respondent’s property. The double catch-pit and the
v-chute were his idea. He described these steps
as ‘short-term
planning’. Mr Breunissen stated that the cost of upgrading the
drainage system for the whole of Piketberg
would be in the region of
R200 million. That was beyond the Municipality’s means and
all it could do was to deal with
‘hotspots’ as best it
could, within budgetary constraints. Piketberg, he explained, was a
small municipality with a
small rates base.
[27]
According to Mr Breunissen the drainage system was well maintained.
He testified that there were other low-lying areas in Piketberg
which
were even more susceptible to flooding, because of water flowing down
the mountainside. He explained that a mountain-fire
during April 2011
had contributed to the rapidity of the water flow in that there had
been no vegetation to impede the flow of
the water. He testified that
the adjacent farmlands fell within the jurisdiction of the West Coast
District Municipality and blamed
the farmers for not cutting and
maintaining adequate contours on their farmland along the
mountainside in order to avoid flooding.
[28]
In relation to the improvements made to the drainage system in the
vicinity of the respondent’s property, Mr Breunissen
said the
following:
‘
Ek sê nie
dit is die oplossing nie, wat ek wel sê is hy kan weer
oorstroom. Daai kanaaltjie kan ook geblok word met
'n tak of iets wat
daar afkom, hy kan toemaak en hy kan weer oorspring. So dit is ‘n
sagte oplossing wat net gedoen is, dis
nie 'n permanente oplossing
nie.’
[29]
Mr Breunissen was adamant that he had given no undertakings to the
respondent, after the 2011 flooding of his property, in
respect of
improvements to be made to the drainage system. According to him, the
latest improvements were made at minimal cost
to the Municipality as
it entailed using existing municipal stock of bricks, sand and
cement.
[30]
Responding to Mr Simon’s claim that an underground pipeline
costing R1 million would go a long way to avoiding a repeat
of the
flood damage, Mr Breunissen said that the Municipality simply did not
have the money to install such a pipeline. He testified
that the
Municipality also had other priorities such as informal housing
settlements, which were even more susceptible to flooding.
[31]
Mr Breunissen testified that after the 2007 flash-floods the
Municipality had commissioned a hydrological study and that a
master
plan was then developed. The plan would lead to a more detailed
design followed by implementation. It was not executed because
of a
lack of funds. The master plan, he explained, identified problems in
the storm-water drainage system but did not provide details.
Mr
Breunissen could not say whether the storm-water drainage system in
the vicinity of the respondent’s property was mentioned
in the
master-plan. The master-plan did not form part of the Municipality’s
discovered documents.
[32]
Mr Breunissen confirmed that there had been no further flooding but
that was, so he said, because there had been no further
storm-water
that had come over the farmlands. He claimed that the West Coast
District Municipality had also effected improvements
within their
jurisdiction. They had repaired a retention wall on a farm and opened
up trenches for the water to flow towards the
N7 drainage system. It
appears from Mr Breunissen’s testimony that the total budget
for Piketberg was approximately R6 million.
Thus, the R1 million Mr
Simon testified would be required to provide a possible solution for
intense rain that might fall in Piketberg,
has to be seen against
that background.
[33]
The last witness to testify was Mr Johannes Engelbrecht, employed as
a project engineer by the Municipality. He recalled the
flood in
2007. He was informed that various buildings in the town had been
flooded and had seen the extensive damage that had been
done, with
one building's roof having been blown off. A disaster had been
declared. Additional staff and even the police were employed
to deal
with the aftermath. He visited the respondent’s property
shortly after the flooding had occurred.
[34]
Mr Engelbrecht conceded that the respondent had called at the
Municipality’s offices on several occasions to complain
about
the damage to his property. He had merely referred the respondent to
the Municipality’s insurance department. He was
emphatic in his
denial of undertakings made to the respondent about improvements to
be effected to the drainage system in the vicinity
of his house.
Under cross-examination he testified that all he had said was that
they were waiting for finance to upgrade the roads.
[35]
In relation to the flooding in 2009 Mr Engelbrecht testified that
accompanied by Mr Arthur Willemse he had visited the respondent’s
property shortly thereafter, and had traced the flow of the water.
The remnants of vegetation on the respondent’s property
indicated the flow from the adjacent farmlands. He had not visited
the property in 2011 because he had been busy elsewhere. He
had not
been involved in effecting the improvements to the drainage system in
the vicinity of the respondent’s home after
the 2011 floods. He
accepted that the Municipality had been provided with photographs by
the respondent after the 2011 flood. He
had no knowledge of
photographs having been provided in relation to the flooding in 2009.
[36]
Mr Engelbrecht testified that De Hoek Street did not feature at all
in the hydrological report referred to above. According
to him,
maintenance reports received by the Municipality indicated that
regular maintenance of the drainage system had been conducted.
[37]
The relevant and material parts of the reasoning and conclusions of
the trial court are set out in paras 3 and 4 above. The
full bench
was cognisant of the repeated warnings by this court, in cases such
as
Cape Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA)
that courts should be cautious not to expose Municipalities to
unrealistic expectations in relation to an asserted duty to
act, and
that care should be taken to ensure that plaintiffs prepared and
conducted their cases with diligence so as to discharge
the
evidentiary burden they bore. It had regard to the evidence that the
drainage system in the vicinity of the respondent’s
house was
hopelessly inadequate to deal with the floodwaters in any of the
years in question. The full bench took into account
that it must have
been clear that the water in the first two floods had emanated from
the farmlands and that this had repeatedly
been brought to the
attention of the Municipality but that nothing had been done to
address his concerns. It pointed to what is
considered to be Mr
Simon’s essentially un-contradicted evidence that the standard
to be met by Municipalities and developers
is a one-in-fifty-year
flood.
[38]
At the end of para 53 of the judgment of the full bench the following
appears:
‘
In my view, there
was sufficient evidence on record to have placed a legal duty on the
respondent municipality to have ensured that
its drainage system was
able to cater for flood waters that would have emanated from the
adjacent farmlands. It had not done so.’
[39]
The full bench went on to consider whether the trial court was
correct in concluding that there was a paucity of evidence in
relation to whether the improvements made after the 2011 flooding
would have made a material difference. It said that a properly
qualified expert could have considered the improvements against an
educated estimate of the water cascading into the drainage system
as
improved after the 2011 flood and have been of assistance to the
court. It recognised that the respondent had failed to present
such
evidence.
[40]
However, with reference to the decision of the Constitutional Court
in
Lee v Minister of Correctional Services
[2012] ZACC 301
;
2013 (2) BCLR 129
(CC);
2013 (2) SA 144
(CC) the full bench held that
there was sufficient evidence to find that there was a duty to reduce
the risk of damage. The full
bench went on to state the following:
‘
It was apparent
that given the prior incidents of flooding at the appellant's
property the respondent should have appreciated the
risk of flooding
at the property. On its own version however, it took no steps prior
to the improvements post the 2011 flood to
prevent flooding at the
appellant’s property. With regard to the adequacy of the
improvements made by the respondent in
casu
, on the
recommendation of its own senior civil engineer Breunissen, Simons'
evidence was to the effect that it would have significantly
improved
the situation in the event of the flood of a similar nature of 2009
or 2011. Despite the almost ambivalence and prevarication
of both
Breunissen and Engelbrecht, it was the very comment of Breunissen
that was significant, who accepted that the improvements
would have
“
grootendeels”
made an impact on the flood waters.
They both maintained though that the improvement had not been tested,
despite the claims by
the appellant himself that there had been heavy
rains as evidenced in the rainfall statistics since 2011. Significant
in my view
was that no expert evidence had been called by the
respondent to rebut the opinion of Simon other than the self-serving
views of
its own employees. The witnesses for the respondents also
claimed that there had been improvements made on the adjacent farms
and
that could well have contributed to the lack of further flooding
after 2011. Moreover, counsel for the appellant, correctly in my
view, pointed out that any expert evidence lead by either of the
parties with regard to the capacity of the improvements would
have
been based to a large measure on speculation as it would have
depended on the accuracy of information available with regard
to the
intensity of the flooding at the particular time and based on the
amount of rainfall over a specific period of time. The
amount of
water that flowed into De Hoek Street would also depend on the amount
of water that would have dissipated on the farmlands.
If anything,
such expert evidence would have been no more than a general
indication as to the amount of water that would have entered
De Kort
Street from the farmland. What is however also significant is the
fact that Breunissen himself had recommended that a second
catch-pit
with a deeper access to it be provided and an open v-chute which was
apparent from the photographs would have on the
basis of common sense
allowed for a greater amount of water to have been drained out of De
Kort Street to the trenches running
toward the N7. That, coupled with
a raised driveway in front of the appellant's property would in my
view and on the evidence,
have had a material impact on the amount of
water that would have flowed into the appellant's property in 2011.
Mindful too that
the flooding in 2011 was significantly less than
that of 2009 as testified to both by the appellant and Breunissen
himself.
In application of the
considerations referred to in the majority decision in Lee, I am of
the view that the concerns raised by the
court
a quo
with
regard to the nature of further expert evidence that the appellant
was required to have tendered was not entirely warranted.
The
appellant, in my view had sufficiently established with the evidence
of Simon and the very concessions by Breunissen and Engelbrecht
that
would have materially impacted on the 2011 flood. Furthermore, in
application of the requirements set out by Holmes JA in
Kruger v
Coetzee
, referred to above, I am satisfied that the conduct of
the respondent was negligent in having failed to have taken
reasonable and
the very cost effective steps such as the improvements
it made in 2011, after the flood in 2009.'
[41]
Consequently, the full bench made the order referred to at the
commencement of this judgment. It is against that order and
the
conclusions on which it was based that the present appeal is
directed. The full bench’s reliance on what it considered
to be
Mr Breunissen’s concession that the recent improvements would
‘grotendeels’ have made a difference, has
to be seen in
the light of the concluding part of his evidence under
cross-examination. The following is the material exchange
containing
that evidence:
‘
En daarom stel ek
dit aan u, as dieselfde ding gedoen is in 2007 en 2009, wat iemand sy
werk gedoen [het] soos wat u dit gedoen
het in 2011, dan mag ons dalk
nie die probleem gehad [nie], want u stelsel is definitief beter as
wat die ou stelsel was. - - -
Dit is – dis nie waar nie, dit
kan nogsteeds oorstroom het, niemand het daai stelsel getoets [soos
dit was nie].
Ek sal die res dan maar
aan argument oorlaat. U Edele, ek het geen verdere vrae nie.’
[6]
[42]
The respondent had received compensation from his insurance company
in relation to the 2007 and 2009 floods. Thereafter his
insurers were
no longer willing to provide him with insurance cover. He was, of
course, not precluded, provided there was no other
bar, from suing
the Municipality for damages.
[7]
The trial court correctly recorded that it was not entirely clear
from the respondent’s particulars of claim whether he was
claiming damages in respect of the flooding that occurred during 2007
and 2009. Before us, counsel on his behalf, submitted that
he was
claiming damages only in respect of the flooding that occurred during
2011. It bears repeating that the respondent’s
particulars of
claim alleged a breach of a legal duty by the Municipality, in that:
‘
[N]ie voldoende
dreineringstelsels te voorsien wat stormwater doeltreffend kan
verwyder nie en/of, nie die bestaande dreineringstelsels
voldoende in
stand te hou nie en/of; nie betyds maatreëls in plek te stel om
herhaling van oorstromings te voorkom nie.’
[8]
[43]
The respondent’s claim against the Municipality is essentially
one based on omission. As pointed out by J Neethling and
JM Potgieter
Neethling-Potgieter-Visser Law of Delict
7 ed (2014) at 58-59,
with reference to the decision of this court in
Minister of Safety
and Security v Geldenhuys
2004 (1) SA 515
(SCA) at 528 that, as a
general rule, liability follows only if the omission was in fact
wrongful, and this will be the case only
if (in the particular
circumstances) a
legal duty
rested on a defendant to act
positively to prevent harm from occurring and that a defendant failed
to comply with that duty.
[44]
While conceptually the inquiry as to wrongfulness might be anterior
to the enquiry as to negligence, it is equally so that
without
negligence the issue of wrongfulness does not arise, for conduct will
not be wrongful if there is no negligence. Depending
on the
circumstances, it may be convenient to assume the existence of a
legal duty and to consider, first, the issue of negligence.
It may
also be convenient when the issue of wrongfulness is considered
first, to assume negligence. So, too, in a particular case
one might
assume both wrongfulness and negligence and consider causation
first.
[9]
[45]
Before us, counsel for both parties were of the view that the case
turned on the question of wrongfulness. In my view, the
problem faced
by the respondent is that the evidence presented fell short of
establishing any one of the aforesaid elements so
as to land the
Municipality with delictual liability. The trial court was rightly
concerned about the paucity of evidence.
[46]
To begin with, no evidence was tendered to explain the concept of a
once-in-fifty-year flood, which, according to Mr Simon,
is the
standard which municipalities have to adhere to in designing and
establishing storm-water drainage systems. Mr Simon referred
to it
without explaining it. A search of internet sites for one’s own
edification, reveals that it does not translate simply
into a flood
that occurs only once in 50 years, but is one that has a two per cent
probability of occurrence in any given year.
[10]
The trial court was not provided with the legal basis for a
one-in-fifty-year flood being the standard that municipalities have
to plan for. Simply put, the trial court was not told whether it was
based in legislation or in provincial or national government
policy.
Neither do we know the key aspects of the standard, including its
scope and content.
[47]
We have no evidence to indicate the measure of the intensity of the
rainfall that would constitute such a flood, either in
cubic metres
per second or measured in any other way. On the evidence presented in
the court below, we have no way of knowing what
type or extent of
storm-water drainage system would be required in order to ward off
the damaging effects of a one-in-fifty-year
flood or of the floods in
question. From Mr Simon’s evidence, highlighted in para 21
above, one is unable to say whether
the pre or post 2011 storm-water
drainage system in front of the respondent’s house was designed
to handle a one-in-fifty-year
flood. Furthermore, on the limited
statistical and other evidence, we have no way of knowing whether the
rainfall and the consequent
flow and velocity of the water leading up
to the flood on any one of the three occasions was less or greater
than would be required
to qualify as a one-in-fifty-year flood. What
we do have, is Mr Simon’s evidence that he could not say
whether the improved
storm-water drainage system effected after the
2011 flood, would have avoided the flood damage on any one of the
three occasions.
His evidence about what would be required to avert
the damage is also unclear. We also have no idea of the likely cost
of a storm-water
drainage system in the vicinity of the respondent’s
house that would ward off damage such as that caused by the flood on
each one of the three occasions.
[48]
It is for a plaintiff to allege and prove the defendant’s
negligence.
[11]
The onus is on
a plaintiff to establish that a reasonable person in the position of
the defendant:
(a) Would foresee the
reasonable possibility that the conduct (whether an act or omission)
would injure another person’s property
and cause that person
patrimonial loss,
(b) would take reasonable
steps to guard against such occurrence, and
(c) that the defendant
failed to take such reasonable steps.
[12]
[49]
It is now well established that, whether in any particular case, the
precautions taken to guard against foreseeable harm can
be regarded
as reasonable or not depends on a consideration of all the relevant
circumstances.
[13]
As stated
above, the 2007 flood was one that everyone appears to have accepted
as having been the result of a freak storm, causing
wide-spread
devastation. In the absence of any reliable data in relation to the
nature and intensity of the storm in respect of
2011, it is difficult
to see how the respondent could discharge the onus. The obvious
questions that arise are, what in these unknown
circumstances could
reasonably be foreseen and what reasonable steps could have been
taken to prevent the flooding. These questions
were not addressed.
[50]
As to wrongfulness, it is determined objectively, taking into account
all the relevant facts and circumstances and the consequences
that
ensued.
[14]
The general norm
to be employed in determining whether a particular infringement of
interest is unlawful, is the legal convictions
of the community. In
Lee
,
the Constitutional Court referred with approval to the decision of
this court in
Minister
van Polisie v Ewels
1975 (3) SA 590
(A), where it was held that our law had reached the
stage of development where an omission is regarded as unlawful
conduct when
the circumstances of the case are of such a nature that
the legal convictions of the community demand that the omission
should
be considered wrongful.
[15]
[51]
When the circumstances presented are as vague as described above and
particularly where the Municipality is restricted by budgetary
and
sociological concerns and where it has demands in relation to
indigent, informal settlement communities, one might rightly
ask how
a court can hold that the legal convictions of the community compel
the conclusion that the Municipality should be held
liable. The trial
court, with reference to the decision of this court in
Bakkerud
,
was rightly concerned about fixing local authorities with liability
on a blanket basis and about being cautious in imposing too
onerous a
duty on such authorities. It considered the very limited budget of
the Municipality and took into account the greater
need to deal with
the plight of informal settlement communities in relation to the
consequences of flooding. In my view, the full
bench erred in being
too dismissive of such concerns.
[16]
This should not be seen as municipalities being given licence to
ignore fulfilling their obligations to residents and justifying
it by
merely asserting budgetary constraints.
[52]
It must be borne in mind that it was not the respondent’s case
that the building plans in relation to his property ought
not to have
been approved, since he lived at the confluence of two flood water
channels, at the foot of a very steep gradient,
and/or that the
developer and the Municipality ought, in light thereof, to have
conferred and agreed on design measures to avoid
flood damage of the
kind that occurred.
[17]
I
interpose to state that it does not appear that any of the
respondent’s neighbours suffered flood damage of the kind
experienced
by him. That, however, was not the case the Municipality
was called upon to meet.
[53]
Lastly, the trial court held that, on the evidence, the respondent
had failed to show that the Municipality could, by relatively
cheap
means, have brought about improvements to the storm-water drainage
system that would have averted the flood. As stated above,
the
paucity of evidence goes beyond that conclusion. One is left with no
idea of the intensity of the rain that caused the flood
and, further,
what it would take, in the circumstances, if anything, to avoid the
consequences suffered by the respondent. The
reliance by the full
bench and the respondents before us on paras 44 and 46-47 of the
majority decision of the Constitutional Court
in
Lee
is
misplaced. The Constitutional Court, in that case, was critical of
this court’s too strict adherence to logic in its approach
to
causation and postulated that certainty is not required but that a
plaintiff only had to establish that the wrongful conduct
was
probably a cause of the loss, which dictated a common sense approach.
Having regard to the paucity of evidence and what is
stated above,
the dicta referred to do not assist the respondent.
[54]
Like the trial court, we too have a degree of sympathy for the
respondent. It is likely that he was restricted in the presentation
of his case by financial considerations. However, he did employ an
expert who, judging by his qualifications and experience, ought
to
have been able, if so directed, to place sufficient evidence at the
disposal of the trial court to enable a more informed decision.
[55]
For all the reasons set out above, it follows that the appeal must
succeed. The following order is made:
1 The appeal is upheld
with costs.
2 The order of the full
bench is set aside and is substituted as follows:
‘
The
appeal is dismissed with costs.’
___________________
M
S Navsa
Acting
President
Appearances:
For
the Appellant: H E de la Rey
Instructed
by:
Visagie
Vos Attorneys, Cape Town
E
G Cooper Majiedt Inc., Bloemfontein
For
the Respondent: J A B Nel
Instructed
by:
Le
Roux Attorneys, Port Owen
Honey
Attorneys, Bloemfontein
[1]
The court is requested to make a finding in respect of the following:
7.1
Whether there was a negligent breach of a legal duty on the part of
the defendant.
7.2
If found that this is so, whether there is a causal connection
between the alleged damage sustained and such breach.
7.3
Whether the plaintiff was himself negligent in respect of the
damages he sustained and if so to what extent. (My translation.)
[2]
Section 14(1)
(a)
of the
National Building Regulations and Building Standards Act 103 of 1977
reads as follows:
‘
A
local authority shall within 14 days after the owner of a building
of which the erection has been completed, or any person having
an
interest therein, has requested it in writing to issue a certificate
of occupancy in respect of such building –
(a)
issue such certificate of occupancy if it is of the opinion that
such building has been erected in accordance with the provisions
of
this Act and the conditions on which approval was granted in terms
of section 7, and if the certificates issued in terms of
subsection
(2) and, where applicable, subsection (2A), in respect of such
building have been submitted to it.’
[3]
The property was sold by the respondent after the close of
pleadings.
[4]
There must have been floods before. Someone must have been aware
that water would come down from there, but no, I would not.
The
experts who designed it should have done their work a little
better…I think…a fantastic idea because it would
prevent such damage in future. (My translation.)
[5]
Normal conditions, yes. But we had a – I don’t know the
history on which dates and during which years, but you had
two
floods, and the first flood you had in 2009, surely must have given
you an indication that there is a problem. And two years
later you
had yet another flood, which tells you again that there is a
problem. Would you not consider that the authorities had
to make
work of it and say, listen, we have a problem in the area, let us
sort it out before more flooding. What they did do,
was to make
improvements after the occurrence of the second flood. (My
translation.)
[6]
And therefore I put it to you that if the same thing had been done
in 2007 and 2009, where someone had done his work like you
did it in
2011, then we might not have had that problem, because your system
is definitely better than the old system used to
be. – That is
– it is not true. It could still have flooded, no-one tested
that system as it was. I will leave the
reset to argument. Your
honour, I have no further questions. (My translation.)
[7]
In this regard, see the discussion on
res
inter alios acta
in J Neethling and JM Potgieter
Neethling-Potgieter-Visser
Law of Delict
7
ed (2014) at 239 para 4.8.2.
[8]
Drainage systems that could effectively remove storm-water were not
provided; and/or were not properly maintaining the existing
storm-water drainage systems; and/or precautions were not timeously
put in place to prevent repeated flooding. (My translation.)
[9]
See
Gouda
Boerdery BK v Transnet Ltd
2005 (5) SA 490
(SCA) at 499B-D,
Hawekwa
Youth Camp & another v Byrne
[2009] ZASCA 156
;
[2010] 2 All SA 312
(SCA);
2010 (6) SA 83
(SCA) at
91F and
Van
Vuuren v Ethekwini Municipality
[2017] ZASCA 124
;
2018 (1) SA 189
(SCA) para 18. See also L T C
Harms
Amler’s
Precedents of Pleadings
9
ed (2018) at 270.
[10]
A
100-year flood is a flood event that has a 1% probability of
occurring in any given year. The 100-year flood is also referred
to
as the 1% flood, since its annual exceedance probability is 1%, or
as having a return interval of 100-years. The 100 year
flood is
generally expressed as a flow rate (m³/s). Based on the
expected 100-year flood flow rate in a given stream or
river, the
flood’s water level can be mapped as an area of inundation.
The resulting floodplain map is referred to as the
100-year
floodplain, which may be very important in how close to the stream
buildings or other activities are allowed. A common
misconception
exists that a 100-year flood is likely to occur only once every 100
years. In fact, statistically, there is an
approximately
63.4
%
chance of
one
or more
100 year floods occurring in any given 100-year period. The
Probability
(
P
e
)
of one or more of a specifically sized flood occurring during any
return interval, exceeding the specifically sized flood severity,
can be expressed as:
…
where
P
e
is the probability,
T
is the return interval of a given storm (e.g. 100-year, 50-year,
20-year, etc.), and
n
is the number of years. The exceedance probability
P
e
is also described as the natural, inherent, or hydraulic risk of
failure when, e.g. when referring to dams, bridges, etc. However,
the expected value of the number of 100-year floods occurring in any
100-year period is 1. In other words, 100-year floods
have a 1%
chance of occurring in any given year (
P
e
= 0.01), 10-year floods have a 10% chance of occurring in any given
year (
P
e
= 0.1), 50-year floods have a 2% chance of occurring in any given
year (
P
e
= 0.02), etc. The percent chance of an
x-year
flood occurring in a single year can be calculated by dividing 100
by
x
.
(
http://aed.co.za/wp/flood-lines/
accessed
19 March 2019.)
See
also Zelda Els’ thesis for the degree of Master of Natural
Sciences at Stellenbosch University at 17.
(
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&ved=2ahUKEwj1vdLH5Y3hAhUqUBUIHRKbD8MQFjAKegQIARAC&url=http%3A%2F%2Fscholar.sun.ac.za%2Fbitstream%2Fhandle%2F10019.1%2F17803%2Fels_data_2011.pdf&usg=AOvVaw0mE1xTMW_44_LnIH2kZ_K3
accessed
on 19 March 2019.), and the National Oceanic and Atmospheric
Administration and the United States Geological Survey,
which are
stated to be her sources.
Of
course, none of these parameters, assuming them to be accurate and
applicable, were explored during the trial.
[11]
Eversmeyer
(Pty) Ltd v Walker & another
1963 (3) SA 384
(T) and also
Amler
op cit
fn 8.
[12]
Kruger
v Coetzee
1966 (2) SA 428
(A) and
Amler
op cit
fn 8.
[13]
Cape
Metropolitan Council v Graham
2001 (1) SA 1197
(SCA) at 1203.
[14]
See
Neethling-Potgieter
fn 6 at 33. See also
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC).
[15]
See also the discussion in
Neethling-Potgieter
fn 6
at 36-37.
[16]
As to the interplay of factors to be taken into account in defining
unlawfulness, see
Neethling
et al at 73 et seq and especially at pages 76-77. In includes a
consideration of preventative measures that could be taken and
the
probability of success of those measures and whether the public
interest would be served by imposing legal duty as well as
considering whether a multiplicity of actions could result.
[17]
In this regard, see the policy of Cape Town City Council, para 10.3
and 10.4 in relation to building plan approvals involving
steep
gradients. This too was not explored.
(https://www.westerncape.gov.za/assets/departments/transport-public-works/Documents/floodplain_and_river_corridor_management_policy.pdf
accessed 19 March 2019).