THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
R E P O R T A B L E
Case number: 302/2004
In the matter between:
THE LOCAL TRANSITIONAL
COUNCIL OF DELMAS FIRST APPELLANT
THE MEMBER OF THE EXECUTIVE
COUNCIL FOR LOCAL
GOVERNMENT: MPUMALANGA
PROVINCE SECOND APPELLANT
and
WILHELM ABRAHAM BOSHOFF RESPONDENT
CORAM: MPATI DP, SCOTT, BRAND, NUGENT et
CLOETE JJA
HEARD: 10 MAY 2005
DELIVERED: 31 MAY 2005
Summary: Informal township establ ished by the predecessors of the
appellants under Act 13 of 1991 on the respon dent's neighbouring
property – claim for loss suffered through conduct of inhabitants of
township – alleged omission by the appellants' predecessors to protect
the respondent against such loss – separation of issues not properly
circumscribed – confusion of wro ngfulness and fault resulting in
inadequate consideration of real issues involved.
_________________________________________________________
JUDGMENT
BRAND JA/
2
BRAND JA:
[1] In the previous political disp ensation the black inhabitants of
Delmas lived on the outskirts of th e town in the township of Botleng.
The local government re sponsible for Botleng wa s not the Municipality
of Delmas but a separate entity ca lled the Botleng town committee.
When Botleng became hugely over-populated, the town committee
found a locality for the establishment of a new township, six kilometres
outside Delmas on a property know n as division 4 of the farm
Middelburg.
[2] With the approval and active assistance of the then Transvaal
Provincial Administration, the town committee acquired the farm and
proceeded to utilise it for the estab lishment of a township pursuant to
the provisions of the Less Formal Township Establis hment Act 13 of
1991 ('the Act'). The township later became known as Botleng
Extension 3, or Botleng 3 for short. In October 1993 the town
committee, again with the approval and assistance of the Transvaal
Provincial Administration, commenced allocating erven in Botleng 3 to
approved occupiers and permitted them to erect their informal dwellings
on these erven.
[3] The respondent ('plaintiff') is the owner of the remainder of the
farm Middelburg in the district of De lmas. It borders on division 4 of the
farm Middelburg which eventually became Botleng 3. The boundary
3
between the two properties is over 2 kilometres long and the nearest
informal structures in Botleng 3 are only 300 metres from the boundary.
The plaintiff acquired his farm in 1988. After that, he conducted his
agricultural activities on the farm wher e he also lived with his family. All
this came to an end, the plainti ff alleged, when in June 1994 he was
effectively driven from his farm, toge ther with his family, through the
conduct of some of the inhabitants of Botleng 3.
[4] Based on these allegations, the plaintiff instituted action against
the two appellants in the Pretoria Hi gh Court for the damage that he
suffered through the loss of his farm. The first appellant was sued in its
capacity as the statutory successor to the rights and obligations of the
former Botleng town committee wh ile the case against the second
appellant was based on its succession to the rights and obligations of
the erstwhile Provincial Administrati on of Transvaal. For the sake of
convenience I will refer to the first appellant and its predecessor as 'the
town committee'; to the second appe llant and its predecessor as 'the
province'; and to the two appellants jointly as 'the defendants'.
[5] At the commencement of the trial, the court a quo (Southwood J),
at the behest of the parties, ordered a separation of issues in terms of
rule 33(4). It was accordingly ordered that the merits of the defendants'
liability for the plaintiff's damages were to be decided first while all other
issues, including those pertaining to the quan tum of such damages,
4
were to stand over for determination at a later stage. Though this
formulation of the separated issues may sound simple enough, it will
soon transpire that no-one actually appreciated what it meant. At the
end of the separate proceedings, the court a quo held that the
defendants were liable for the plainti ff's damages in the amount that he
could prove in the next stage of the proceeding s. The appe al against
that judgment is with the leave of this court.
[6] The facts are largely common cause. The plaintiff's own
testimony was that, prior to October 1993, the agri cultural activities on
his farm consisted of cultivatin g wheat crops and grazing for his
livestock, including cattle and sheep. He also sold timber from the trees
on the farm. After October 1993 wh en the inhabitants of Botleng 3
started moving in, the plaintiff testifie d, life gradually became intolerable
for him and his family. First, there was the smoke pollution from many
open fires. Then the contamination of his water – both underground and
in the river on his farm – with raw sewerage. His livestock was stolen
and died from consuming plastic bags originatin g from Botleng 3 so
that, in the end, he wa s compelled to sell all his cattle and sheep. His
crops were destroyed by livestock straying from Botleng 3 while the
trees which he formerly sold we re cut down for firewood. His
outbuildings were burnt down and other improvements on the farm
either removed or dest royed. Eventually he and his family were
subjected to threats of violence an d even of death. As a consequence
5
of all this, he was forced, together wi th his family, to leave his farm in
June 1994 and he has never been able to return.
[7] The procedures followed for the establishment of Botleng 3
appear from the evidence of a town planner, Mr S A R Ferero, who was
called to testify on behalf of the plaintiff. His evidence was mainly based
on information that he gathered from the files of the province. Chapter 2
of the Act required two applications for the establishment of a less
formal township in terms of the Act, both to be di rected at the erstwhile
Administrator. First an application, in terms of s 10 of the Act, for his
approval, in principle that the est ablishment of such a township was
necessary. Then, if successful, an ap plication in terms of s 11 for his
formal permission to establish the township. The latte r application had
to comply with the regulations pr omulgated under the Act. One of the
requirements of these re gulations was a so-ca lled impact study to
determine the effect of the proposed township on properties situated
within one kilometre of its location.
[8] According to Ferero, both the s 10 and the s 11 applications were
handled on behalf of the town committee by a firm of urban
development consultants, called Terraplan. The application in terms of s
10 was approved by the Administrato r of the Transvaal on 3 March
1993. Terraplan then proceeded with the s 11 application. It is common
cause that this application did not comply with t he regulations in that an
6
impact study of the effect on nei ghbouring properties had not been
done. Despite these shortcomings in the s 11 application, the
establishment of Botleng 3 was formal ly approved by the Administrator
on 17 March 1995.
[9] The Administrator's approval of a township did not in itself
authorise the town committee to permit occupation of the erven or to
allow the erection of structures in Botleng 3. On the contrary, s 13 of the
Act specifically provides that no person shall allocate any erven or erect
any building in the proposed townsh ip before a township register has
been opened in accordance with s 17 of the Act. The township register
in respect of Botleng 3 was only opened on 27 September 1996.
Despite these provisions, the to wnship committee allowed the
inhabitants of Botleng 3 to take pos session of the erven allocated to
them and to erect their informal stru ctures on these erven from as early
as October 1993. These contravent ions of the Act by the town
committee were not only condoned, but actively supported by the
province.
[10] The reason why the town co mmittee and the province acted in
this way appears from the evidence of Mr Ampie Ro ux who was called
to testify on behalf of th e defendants. From 1990 until 1994 Roux was
appointed as so-called 'administrator ' of Botleng, essentially to take
over all the functions of the town committee. In reality he therefore
7
acted in the town committee's stea d. During the period of his
administration, Roux testified, the ov erpopulation of the original Botleng
took on crisis proportions. This is borne out by the numbers that he
gave. The original Botleng, he said , consisted of 1 841 erven of 240m²
which were intended for 1 841 housing units. At the time in question,
however, there were more than 5 000 housing structures in the
township that were occupied by a bout 60 000 to 65 000 people. The
problems that arose are not difficult to imagine. So, for example, the
sewerage system could not cope, wh ich led to regula r outbreaks of
typhoid. As a result Roux was un der extreme pressure from various
sources, including influential polit icians, initially to secure the
establishment of Botleng 3 and then to move people out of the original
Botleng to the newly established to wnship as serviced erven became
available.
[11] The plaintiff suggested various ways in which the defendants
could have avoided or at least have reduced the damage that he
admittedly suffered throug h the conduct of some of the inhabitants of
Botleng 3. Included amon gst the suggested measur es was the erection
of a fence, 2 metres high, along th e 2 kilometre boun dary between the
plaintiff's farm and Botleng 3. If it proved necessary to protect this fence,
the plaintiff suggested, the defendan ts could have achieved this by
electrifying the fence or by having it patrolled by guards on horseback or
on motorcycles. A further suggestion by the plaintiff was that the river
8
running through his farm could hav e been dammed by means of weirs
which would then create some kind of water barrier between him and
Botleng 3. As a further alternative the plaintiff suggested that the
defendants could have prohibited the keeping of livestock in Botleng 3.
[12] In cross-examinatio n of the plaintiff, neithe r the potential efficacy
nor the affordability of the method s that he suggested was seriously
challenged. Nor was any evidence presented on behalf of the
defendants to the effect that the preventative measures suggested by
the plaintiff would not have been a ffordable or that they would have
made little or no practical differe nce. When the defendants' only
witness, Roux, was asked in cro ss-examination what preventative
methods he had considered, his respon se was twofold. First, that he
had left the consideration of possible impact reducing measures in the
hands of Terraplan. Seco nd, that in any event, there was simply no
money available to the town committee for preventative measures since
all available funds were utilised for the improv ement of services in
Botleng 3.
[13] In the court a quo as well as in this court, the two defendants
were represented by the same lega l team who advanced the defences
of both their clients on the same grounds. In the circumstances the
court a quo did not find it nece ssary, in consideri ng the liability of the
defendants, to differentiate between the two. Neither do I.
9
[14] According to the judgment of the court a quo, the parties
understood the issues be tween them as being confined to the element
of wrongfulness. That categorisati on was also adopted by the court
itself. The question for determination, as formul ated in the judgment,
was therefore perceived to be 'w hether the defendants were under a
legal duty to take reasonable steps to protect the plaintiff from the harm
that he suffered through the conduct of the inha bitants of Botleng 3'.
That is not a correct formulation of the question relating to
wrongfulness. The correct formulation, as will appear from what follows,
is whether the defendants were under a legal duty not to act negligently;
in other words, whether there was a le gal duty to take such steps, if
any, as may have been reasonable in the circumstances to prevent
reasonably foreseeable harm.
[15] The defendants' argument as to why the law imposed no such
duty upon them was found ed mainly on the proposi tion that, since the
establishment of Botleng 3 had been authorised by the provisions of the
Act, neither the establishment of the township itself nor the
consequences of such establishment could be regarded as wrongful.
Support for the propositio n was sought in the judgment of this court in
Diepsloot Residents' and Landowne rs' Association v Administrator,
Transvaal 1994 (3) SA 336 (A). Moreover, the defendants contended,
the law could not impose a duty on th em to take prev entative methods
for which they had no funds.
10
[16] The defendant's reliance on the provisions of the Act did not find
favour with the court a quo . Statutory authority, so the court held,
cannot be relied upon by someone who acted in conflict with the
provisions of the statute itself. Consequently, the court found that,
because the defendants had acted in direct contravention of s 13 of the
Act by allowing the occupation of Bo tleng 3 before the opening of the
township register, they were preclude d from relying on the authority of
the Act.
[17] Furthermore, so the court held with reference to the well known
criterion established in Minister van Polisie v Ewels 1975 (3) SA 590 (A)
597A-C, the legal convictions of the community required the defendants
(a) to have done an impact study on neighbouring land prior to the
establishment of the township and (b) to have tak en all reasonable
preventative steps to protect the pl aintiff against the activities of the
inhabitants of Botle ng 3. According to Ewels, the court concluded, the
defendants were therefore under a le gal duty to do these things and
because they had failed to do so, they were liable for plaintiff's damages
in the amount that he could prove.
[18] The approach to the matter ad vanced by the parties and adopted
by the court a quo gave rise to confusion between the elements of
wrongfulness and negligen ce which eventually resu lted in a failure on
the part of all concerned to recognis e the real issues involved. In order
11
to unravel this confusion it is necessary again to emphasise the
distinction between these two elements of Aquilian liability, despite the
fact that this has been done regular ly by this court in the recent past
(see eg Sea Harvest Corporation (Pty) Lt d and another v Duncan Dock
Cold Storage (Pty ) Ltd and another 2000 (1) SA 827 (SCA) par 19;
Cape Metropolitan Council v Graham 2001 (1 SA 1197 (SCA) par 6;
BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) pars 12 and 13; Minister of
Safety and Security v Van Duivenboden 2002 (6) SA 631 (SCA) par 12;
Gouda Boerdery BK v Transnet, [2004] 4 All SA 500 (SCA) par 12).
[19] A convenient starting point is the established principle of our law
that negligent conduct giving rise to loss is not actionab le, unless it is
also wrongful. However, as also frequently stated, where negligent
conduct manifests itself in a positive act that causes physical harm,
wrongfulness is more often than not, uncontentious. In such a case the
culpable conduct woul d be prima facie wron gful. With negligent
omissions the posi tion is somewhat differen t. An omission will be
wrongful only when it occurs in ci rcumstances where the law regards it
such as to attract liability. Otherwise stated, it is not wrongful when the
law, for reasons of legal policy, a ffords an immunity a gainst liability for
such an omission, whether negligent or not. In these circumstances the
question of fault does not even arise. The defendant enjoys an
immunity. Cadit quaestio. See eg Knop v Johannesburg City Council
12
1995 (2) SA 1 (A) and Minister of Law and Order v Kadir 1995 (1) SA 303
(A) 321H-322D.
[20] In the passage from th e judgment of Rumpff CJ in Minister van
Polisie v Ewels supra 597A-B referred to by the court a quo, it was held
that a negligent omission will be re garded as wrongful and therefore
actionable only when the legal conv ictions of the community impose a
legal duty, as opposed to a mere mo ral duty, to avoid harm to others
through positive action. However, as the learned Chief Justice
immediately proceeded to point out, this legal duty has nothing to do
with fault (negligence). It is therefore not to be confused with the duty of
care in English la w which is usually associated with negligence (see eg
Knop v Johannesburg City Council supra 27B-G). Depending on the
circumstances it may be appropriate to enquire first into the question of
wrongfulness, in which event it may be convenient to assume
negligence for the purpose of the inquiry (see eg Van Duivenboden
442A-B). On the other hand, it may be convenient to assume
wrongfulness and then consider the question of negligence (See Gouda
Boerdery Bpk par 12).
[21] The separate test for the determination of negligence to be
applied will be that formulated by Holmes JA in Kruger v Coetzee 1966
13
(2) SA 428 (A) 430E-G. According to this test, negligence will be
established if:
'(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonabl e possibility of his conduct
injuring another in his pers on or property and causing him
patrimonial loss; and
(ii) would take reasonable st eps to guard against such
occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years. Requirement
(a) (ii) is sometimes overlooked. Whether a diligens paterfamilias in the
position of the person conc erned would take any guardi ng steps at all and, if
so, what steps would be reasonable, must always depend upon the particular
circumstances of each case.'
[22] In applying these principles it is apparent that the finding by the
court a quo, that the defendants were ob liged to take preventative
measures, extended beyond the sphere of wrongfulness and into the
preserve of negligence. In fact, only one of the court's findings seems to
relate directly to the element of wr ongfulness. It is th e finding that the
defendants acted in contra vention of s 13 of th e Act by allowing the
occupation of Botleng 3 before the ope ning of the township register.
This finding, however, appears to be without any cons equence. Central
14
to the plaintiff's case was the th eme that in the absence of any
preventative measures by the defe ndants, the harm that he suffered
through the establishment of Botlen g 3 was not only foreseeable but
indeed inevitable. It follows that, barring such measures, he would have
suffered the same harm, even if the defendants had awaited the
opening of the township register. Comp liance with the provisions of the
Act would therefore have resulted in no more than a postponement of
the evil day. As Botleng 3 had eventu ally been approved in terms of the
Act, it follows that the establishment of the township had been
authorised by statute and that, cons equently, the establishment of the
township per se could not be rega rded as unlawful. That much was
decided in Diepsloot Residents' and Landowners' Association v
Administrator, Transvaal supra 353G-H.
[23] However, the subs tance of the plaintiff's case against the
defendants was not that they had est ablished a township, but that they
had failed to take such steps as th ey could have tak en to prevent or
reduce the loss that he had su ffered through the conduct of the
inhabitants of the township. In orde r to succeed, he therefore had to
establish, first, that the omissions he complained of were wrongful,
second, that they were negligent and, third, that these omissions were
causally connected to his loss.
15
[24] The court a quo 's unqualified conclusi on, without any proper
investigation of the three aforemen tioned elements involved, that the
defendants were liable for all the dama ges that the plai ntiff could prove
on the broad basis that they should have take n preventative measures,
originated from the confusion betw een the elements of wrongfulness
and fault. The enquiry pertaining to wrongfulness was simply this:
assuming that the defend ants' omissions to avoid the plaintiff's loss
were negligent, did the le gal convictions of the community require them
to be held liable? In so far as the court a quo implicitly answered this
question in favour of the plaintiff, I agree with that finding. No reason
has been suggested and I can think of none why in all the
circumstances of this case the legal convictions of the community would
require the defendants to be afforded immunity from any negligent acts
or omissions that might have caused loss to the plaintiff.
[25] On the contrary , as was decided in Diepsloot Residents' and
Land Owners' Association v Administrator, Transvaal supra 351E-G, the
fact that the power to establish a to wnship is conferre d upon a public
authority by the provisio ns of the Act, does not mean that it will not be
liable for 'failing to take reasonably practical measures to lessen the
harm that will be caused by the exercise of such powers'. Or, translated
into the language of the aforegoing analysis, a pub lic authority will, in a
situation such as this be held li able for its omissions, provided, of
course, that all the other requirement s of delictual liability, including
16
those of negligence and causation, are satisfied. (See also East London
Western Districts Farmer s' Association and ot hers v Minister of
Education and Develo pment Aid and others 1989 (2) SA 63 (A) 75H-
76B and Minister of Safety and Se curity v Van Duivenboden supra par
19.)
[26] The further issues raised by t he parties and deci ded by the court
a quo, relating to the nature of the prev entative measures that should
have been taken by the defendants, were relevant to the element of
negligence. In the confusion th e second enquiry formulated in Kruger v
Coetzee supra 430F-G, namely what step s, if any, the reasonable
person in the position of the defend ant would have ta ken, was passed
over entirely. If this enquiry had been made, the following questions
would have revealed them selves with reference to each of the various
preventative measures suggested by the plaintiff: How effective would a
two kilometre fence along the common boundary between the
properties have been? What differe nce would a dam have made? How
practical was the suggestion that th e fence be patrolled on motorcycles
or horseback? What would be the expense involved in implementing
these measures? In balancing the co sts involved against their relative
effectiveness, which of these measur es, if any, would have been taken
by the reasonable person? How effe ctive would the prohibition against
the keeping of livestock in Botleng 3 have been? In what way and at
what expense could such a prohibition be enforced?
17
[27] Because these questions we re not asked, another crucial
element went unnoticed. That was the element of causation. Had this
element been recognised, the court a quo could not possibly have made
the bald finding that the defendants were liable simply for not taking
preventative measures without cons idering (a) what measures could
have been taken and (b ) what difference those measures would have
made. This enquiry would ultimately have led to appreciation of the
further fact that in a ca se such as this it is virtually impossible to
separate the elements of causation and quantum of damages.
[28] The flaws in the approach adopted in the court a quo can be
illustrated by reference to the plaintiff's suggestion of the erection of a
fence as a practical example. The first question would be what
difference the fence would have ma de. Say the answer was that it
would have protected the plaintiff against livestock straying from
Botleng 3, but not against criminal activities. That wo uld lead to the
following question: Having regard to the cost of such a fence, would the
reasonable person have put up a fence? A positive answer would mean
that both negligence and causation ha d been established. In principle
the defendants would then be liable to the plaintif f for the damages that
he suffered through straying livestock. But it could not possibly mean
that they were also liable to him for damage caused by criminal activity
if it is clear that the fence would no t have protected the plaintiff against
these activities.
18
[29] The inevitable conclusion th erefore appears to be that the
separation of issues agreed upon ha d not been properly considered.
Parties to litigation will be well advised to heed th e lesson learnt from
experience in this court, refe rred to by Nugent JA in Denel (Edms) Bpk
v Vorster 2004 (4) SA 481 (SCA) 485A-E, th at a separation of issues
which has not been properly co nsidered and then carefully
circumscribed will almost inevit ably come back to haunt those
responsible at a later stage.
[30] It is clear that the decision of the court a quo cannot stand. The
only issues that could properly ha ve been determined on the facts
before the court were those relating to wrongfulness. Issues regarding
the elements of negligence and causation were not properly
investigated and should not have been finally decided against the
defendants. When this became clear during argument in this court, the
parties agreed that the issues regarding negligence and causation
should stand over fo r determination, together with the issues relating to
the quantum of the plaintiff's damage s, at the subseque nt stage of the
proceedings.
[31] It is also clear that the ques tion whether the defendants' alleged
omissions, if negligent, would be wr ongful was, in my view, rightly
decided in favour of the plaintiff. It was formally conced ed on behalf of
the defendants that in the event of su ch a finding, they would be liable
19
for the plaintiff's costs, both with reference to the proceedings in the
court a quo and on appeal. In consequence that is the order I propose
to make.
[32] A peripheral ground of appeal ra ised by the defendants related to
the court a quo's finding that they are to be held liable for the qualifying
expenses of the expert witness, Ferero. Their contention was that
Ferero was not an expert properly so called. I find it unnecessary to
dwell on this contention. Suffice it to say that, in my view, it has no
merit. Ferero qualified himself as an expert and, without any objection
by the defendants, conveyed his expert views to the court a quo.
[33] The following order is made:
(a) The appeal is upheld.
(b) The appellants are ordered, jo intly and severally, to pay the
respondent's costs of appeal, including the costs of two counsel.
(c) The following order is substitu ted for the order made by the
court a quo :
(i) It is declared that, in t he circumstances, negligent
omissions on the part of the defendants would have
been wrongful and that, co nsequently, the defendants
would be liable in damages to the plaintiff resulting
from any such omission.
20
(ii) All other issues, includ ing those relating to the
elements of negligence, c ausation and the quantum of
the plaintiff's alleged damages are to stand over for
later determination.
(iii) The defendants are ordered, jointly and severally, to
pay the plaintiff's costs, including the costs of two
counsel and the qualifying ex penses of Mr S A R Ferero.
(iv) The matter is postponed sine die for determination of
the outstanding issues.
………………
F D J BRAND
JUDGE OF APPEAL
Concur
:
MPATI DP
SCOTT JA
NUGENT JA
CLOETE JA