Brief Summary

Delict — Negligence — Flood damage — City Council of Johannesburg (JCC) appealed against a ruling in favour of Television and Electrical Distributors (Pty) Ltd (Tedelex) for damages resulting from flooding caused by inadequate drainage capacity of a newly constructed canal system. Tedelex's property was damaged when stormwater overflowed due to the design and construction flaws in the drainage system. The JCC's defence relied on statutory authority for the construction, arguing no negligence occurred. The court held that statutory immunity does not protect against negligence in execution or design, and the JCC was liable for damages as it failed to implement reasonably practicable measures to prevent the flooding.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings concerned an appeal to the Supreme Court of South Africa (Appellate Division) against a judgment of the Witwatersrand Local Division (Schutz J) in a delictual damages action. The litigation arose from flood damage allegedly caused by a municipal stormwater drainage scheme.

The appellant was the City Council of Johannesburg (the municipal authority responsible for the relevant drainage and road works). The first respondent was Television & Electrical Distributors (Pty) Ltd (“Tedelex”), a tenant which claimed damages for harm to property stored in the basement of the premises it occupied. The second respondent was Tedelex Properties (Andrea Road) (Pty) Ltd (“Tedelex Properties”), the owner of the building, which had been joined by the City Council as a third party in the court of first instance.

In the trial court, the issues of merits and quantum were separated, and the merits were determined first. After a lengthy trial, Schutz J found in favour of Tedelex on the merits, found no liability on the part of Tedelex Properties, and granted a special (punitive) costs order in respect of time taken up by what the trial court regarded as an ill-founded defence. The City Council appealed against the findings on liability, the rejection of its case against Tedelex Properties, and the special costs order.

The general subject-matter of the dispute was whether the municipality, in designing and constructing a stormwater canal and culvert system (and in deciding not to enlarge an existing “bridge”/opening under Booysens Road), negligently caused flooding of the basement of a nearby commercial building during a rainstorm, and whether any defences (including statutory authority, causation arguments, contributory negligence, or an exclusionary clause linked to building plan approval) defeated or reduced its liability.

2. Material Facts

A natural watercourse in the West Turffontein Valley had by about 1934 been channelled into an open canal running northwards to a T-junction where Klip River Road met Booysens Road. Booysens Road sat on an embankment, and the canal passed through an opening beneath the road at the junction; this opening was described in evidence as a “bridge”.

In 1978 the City Council decided to replace Klip River Road with a new high-capacity road, Klip River Drive, and to construct a new drainage system. Construction occurred in 1980–1981. The drainage works comprised an open concrete canal running alongside the new road which, about 230 metres from the bridge, converted into an underground conduit/culvert. Immediately before the bridge the culvert narrowed over a 15-metre transition section, tapering from 8 m × 2 m to 4 m × 3.5 m at the bridge, after which the water again flowed in an open canal.

Tedelex Properties owned land in the Reuven area near the culvert inlet, and its building plans were approved by the City Council in September 1981. The building was completed in 1983, and Tedelex became the tenant. The land sloped markedly from east to west and the elevated Klip River Drive impeded natural westward flow.

On Sunday 7 December 1986, 54 mm of rain fell in about 56 minutes. The parties agreed that the storm had a Recurrence Interval (RI) of 13 years, and it was described as heavy but not exceptional. The installed drainage system’s discharge capacity, due to its design and construction, was no more than 62.5 cubic metres per second. During the storm, water overflowed at the point where the open canal converted to the culvert (the culvert inlet). Turbulent water forced entry into the basement of the building by breaking an outer concrete panel wall and buckling a steel roller door. Tedelex alleged that goods stored in the basement were damaged.

The court accepted that the system’s inability to cope was primarily due to the constriction of flow in the transition section and, secondarily, because at a bend before the culvert inlet the outer retaining wall was not high enough to contain floodwater entering the culvert. The court also accepted that, had the old open-canal system remained, overflow would have tended to dam up against Booysens Road and Klip River Drive and, unless exceptional, would not have reached the Tedelex property.

It was common cause that the design engineer, Mr Green, had planned for a system accommodating at least a 1:50 flood RI and a peak discharge of about 130 cumecs, and that constructing a system with that capacity would have been reasonable and appropriate for the locality. However, the system as built was limited to the 52.5–62.5 cumec range because the design made no provision for alteration/enlargement of the bridge. The defect was attributable to Green failing to take into account the hydraulic/energy effects and increased velocity associated with a closed culvert, an omission conceded by one municipal expert witness as “an inexcusable mistake”.

Municipal officials raised concerns in internal minutes during June and July 1980 that the bridge was undersized and that the capacity was inadequate for anticipated flows, and suggested alterations should be made while contractors were on site. The decision not to reconstruct the bridge was taken by Mr Grant, the Chief Roads Engineer.

The plaintiff’s pleaded claim was delictual (lex Aquilia), relying on negligence. The municipality’s main pleaded defence was a denial of negligence, and it later raised additional contentions during the course of the litigation, including a causation argument (“it would have happened anyway”), contributory negligence, and an exclusionary clause associated with building plan approval documentation.

3. Legal Issues

The central legal questions the Appellate Division was required to determine were whether the City Council was delictually liable for the flooding damage and whether the trial court was correct to reject the City Council’s defences and its case implicating Tedelex Properties.

The dispute involved a combination of questions of law (the scope of statutory authority/immunity, the legal requirements for delictual wrongfulness and negligence, the treatment of exclusionary clauses in a statutory approval context, and principles governing punitive costs) and questions of application of law to fact (foreseeability, causation, and contributory negligence in the circumstances of a municipal drainage scheme and subsequent building development). The causation contention (“it would have happened anyway”) also turned on the evaluation of expert evidence and the adequacy of proof in a necessarily speculative counterfactual inquiry.

A further issue concerned the propriety of the trial court’s special costs order, which required an evaluative assessment of whether the conduct of the City Council in pursuing a particular defence justified attorney-and-client costs for time wasted.

4. Court’s Reasoning

The court located the plaintiff’s cause of action in the lex Aquilia, under which liability depends on (among other elements) wrongfulness, fault (negligence), and causation. Although wrongfulness had not been expressly pleaded, the court treated it as capable of being inferred from the pleaded facts in accordance with authority referenced in the judgment.

A substantial part of the reasoning addressed the extent to which a public authority may claim statutory authority as an implicit justification for interference with private rights. Drawing on precedent, the court explained that statutory authority to construct public works can excuse liability for resulting harm only within limits and subject to requirements. The court identified at least two requirements for successful reliance on such immunity: (a) that reasonably practicable measures must be selected for the exercise of the statutory power or duty, and (b) that the work must be executed and maintained without negligence. The court emphasised that statutory authority does not sanction negligent conduct that causes harm.

On the facts, the court held that the municipality was negligent in more than one respect. The canal system had been intended to cope with a 1:50 flood RI and a peak discharge of about 130 cumecs, which was accepted as reasonable for the area. However, the system constructed had a much lower discharge capacity because the design failed to account for the hydraulic implications of the culvert and did not provide for enlarging the bridge. This was compounded by the municipality’s failure to remedy, or properly investigate and address, the defect after it had been raised internally by officials in mid-1980 minutes. The court rejected the submission that negligence was “in the air” because damage was not foreseeable: it held that development adjacent to the canal was known and envisaged, and the drainage system was intended to serve an urban environment where buildings would exist in its vicinity. It also rejected an attempt to narrow foreseeability to the precise type or extent of damage suffered, relying on authority that it is sufficient that harm in general was foreseeable, not the exact form it took.

The court dealt with an argument seeking to link foreseeability to a town planning provision concerning basement use. It held that this line of reasoning was flawed because foreseeability is assessed at the time of the act or omission, when no one could have known the eventual configuration of a future building, its basement, or permissions relating to its use.

Because the municipality had failed requirement (b) (non-negligent execution/design and follow-through), the court concluded that the statutory authority defence failed. On that basis, the court held that wrongfulness and fault were established for purposes of Aquilian liability.

The court then addressed the municipality’s causation defence, described as an “it would have happened anyway” contention: namely, that even if the new system caused flooding, the old system would in any event have caused similar flooding and damage. The court treated this defence as speculative and akin to confession-and-avoidance in circumstances where the municipality’s conduct manifestly caused the flooding that occurred. It held that, at the very least, the municipality bore a duty to place reliable evidence before the court to support the counterfactual proposition, and the municipality’s attempt to prove a specific peak flow intensity was not persuasive.

The court gave two principal reasons for rejecting the causation defence. First, the appropriate counterfactual for assessing foreseeability and causation in this context was the scenario without negligence, meaning the new system as properly designed (with the intended capacity), not a reversion to the old system; on that premise, the flooding would not have occurred. Second, even if the old system had remained, the court considered it at least as likely as not that the building would have been designed differently or precautions taken if a risk of flooding had existed; this further undermined the municipality’s attempt to establish that the same damage would have eventuated.

On contributory negligence, the municipality contended that the owner, tenant, or architect should have foreseen flooding risk and avoided including a basement or should have taken other protective measures. The court held that this plea failed because it depended on the proposition that those parties should have anticipated that a newly constructed, sophisticated municipal drainage system would be unable to cope with a rainfall event of RI approximately 1:13, which was inconsistent with the agreed reasonable expectation that such systems should cope with storms of much lower frequency (such as 1:50). The court rejected as unrealistic the notion that lay owners should have foreseen the technical shortcomings of the system. It also rejected the contention that the architect should have investigated the discharge capacity to detect a latent design error, holding that the architect was entitled to assume the canal conformed to reasonable urban drainage standards. Further, the court rejected an attempt to attribute alleged professional omissions to Tedelex on the basis of “inherent danger”, applying the principles stated in Langley Fox Building Partnership (Pty) Ltd v De Valence and concluding that erecting the building near the canal could not realistically have been regarded as inherently dangerous in the manner required.

The court also rejected the municipality’s reliance on an exclusionary clause contained in notes accompanying building plan approval documentation, which stated that the council did not accept responsibility for damage caused to property by stormwater or infiltration through cellar walls. While the trial court had given four reasons for rejecting the argument, the Appellate Division considered particularly decisive the conclusions that any such clause could not bind the tenant (Tedelex) because the approval process was between the council and the owner applicant, and that the council, acting under a statutory duty to approve compliant plans, could not impose a condition that effectively required an applicant to accept an exemption from municipal liability as a prerequisite for approval.

Finally, the court considered the punitive costs awarded by the trial court in relation to time devoted to the unsuccessful causation defence. It accepted that a litigant may be mulcted in attorney-and-client costs where conduct is “vexatious” in the extended sense of causing unnecessary trouble and expense the other side ought not to bear. While cautioning against using hindsight to punish an unsuccessful litigation strategy, the court held that the trial court had not misdirected itself: the municipality pursued an ambitious attempt to prove an exact peak flow figure notwithstanding the acknowledged imprecision of hydrology, and persisted despite evidence signalling the difficulty of proving both the asserted peak intensity and a consequential damaging water level in the basement under the hypothesised old-system scenario. The court therefore upheld the exercise of discretion to grant the special costs order.

5. Outcome and Relief

The appeal was dismissed. The Appellate Division upheld the trial court’s findings that the City Council was liable to Tedelex on the merits, that Tedelex Properties bore no liability, and that the special costs order was justified.

The City Council was ordered to pay the costs of the appeal, including the costs of two counsel for Tedelex and two counsel for Tedelex Properties.

Cases Cited

Cornation Brick (Pty) Ltd v Strachan Construction Company (Pty) Ltd 1982(4) SA 371 (D).

Lillicrap, Wassenaar and Partners v Pilkington Brothers SA (Pty) Ltd 1985(1) SA 475 (A).

New Heriot Gold Mining Company Limited v Union Government (Minister of Railways and Harbour) 1916 AD 415.

Halliwell v Johannesburg Municipality 1912 AD 669.

Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163.

Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal 1994(3) SA 336 (A).

Simon's Town Municipality v Dews and Another 1993(1) SA 191 (A).

Johannesburg City Council v Vucinovich 1940 AD 365.

Bloemfontein Town Council v Richter 1938 AD 195.

Kruger v Coetzee 1966(2) SA 428 (A).

S v Bernardus 1965(3) SA 287 (A).

Botes v Van Deventer 1966(3) SA 182 (A).

Kruger v Van der Merwe and Another 1966(2) SA 266 (A).

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977(3) SA 534 (A).

Langley Fox Building Partnership (Pty) Ltd v De Valence 1991(1) SA 1 (A).

Fernwood Estates, Ltd v Cape Town Municipal Council 1933 CPD 399.

In re Alluvial Creek 1929 CPD 532.

Phase Electric (Pty) Ltd v Zinman's Electronic Sales (Pty) Ltd 1973(3) SA 914 (W).

Hyperchemicals International (Pty) Ltd and Another v Maybaker Agrichem (Pty) Ltd and Another 1992(1) SA 89 (W).

Legislation Cited

Forest Act 122 of 1984.

National Building Regulations and Building Standards Act 103 of 1977.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that the City Council’s design and implementation of the stormwater drainage system were negligent, and that this negligence caused the overflow and flooding that damaged Tedelex’s goods. The court held further that the City Council could not rely on statutory authority to avoid liability because statutory immunity does not extend to harm caused by negligent execution of authorised works.

The court rejected the City Council’s “it would have happened anyway” causation defence as unproven and speculative in the circumstances, and rejected contributory negligence on the basis that neither the owner, tenant, nor architect could reasonably have been expected to foresee that a newly installed municipal drainage system would fail to handle a non-exceptional storm of the relevant recurrence interval. The court also rejected reliance on the asserted exclusionary clause tied to building plan approval documentation, holding inter alia that it could not bind the tenant and that it was not competent to impose such an exemption as part of a statutory approval process.

The court upheld the special attorney-and-client costs order relating to wasted time occasioned by the unsuccessful causation defence and dismissed the appeal with costs, including the costs of two counsel for each respondent.

LEGAL PRINCIPLES

Statutory authority may implicitly justify interference with private rights only within limits; it does not provide immunity where the authority fails to select reasonably practicable measures for executing the authorised work or where the work is negligently designed, executed, or maintained, and harm results.

In assessing negligence and foreseeability in delict, it is not necessary that the defendant should have foreseen the precise form or extent of the harm that occurred; it is sufficient that harm of a general kind was reasonably foreseeable. Foreseeability is assessed with reference to the time of the act or omission.

A causation contention that damage would have occurred in any event under a counterfactual scenario (“it would have happened anyway”) is inherently speculative and, when raised in circumstances where the defendant’s conduct factually caused the harm, requires reliable evidential support; courts may reject such a defence where the asserted counterfactual cannot be established on the evidence.

A plea of contributory negligence must be anchored to what the relevant party could reasonably have foreseen and guarded against in the circumstances; where persons are entitled to assume a recently constructed municipal drainage system meets reasonable urban standards, they are not required, without more, to anticipate latent engineering defects.

A local authority performing a statutory function to approve building plans may not make approval contingent on the applicant’s acceptance of an exemption from liability that would operate as a contractual renunciation of rights, and any such purported condition, in any event, does not readily extend to third parties such as tenants.

Attorney-and-client costs may be awarded where litigation conduct is vexatious in the extended sense of causing unnecessary trouble and expense that the other side ought not to bear, provided the discretion is exercised judicially and not merely on hindsight dissatisfaction with an unsuccessful case.

City Council of Johannesburg v Television & Electrical Distributors (Pty) Ltd. and Another (371/93) [1996] ZASCA 97; [1997] 1 All SA 455 (A) (20 September 1996)