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[2018] ZASCA 51
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Pietermaritzburg and District Council for the Care of the Aged (PADCA) v Redlands Development Projects (Pty) Ltd and Others (184/17) [2018] ZASCA 51; 2018 (4) SA 113 (SCA) (29 March 2018)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 184/17
In
the matter between:
PIETERMARITZBURG
AND
DISTRICT
COUNCIL FOR THE
CARE
OF THE AGED (PADCA)
APPELLANT
and
REDLANDS
DEVELOPMENT FIRST RESPONDENT
AND
32 PROJECTS (PTY)
LTD
OTHERS
Neutral
citation:
Pietermaritzburg
and District Council for the Care of the Aged (PADCA) v Redlands
Development Projects (Pty) Ltd
(184/17)
[2018] ZASCA 51
(29 March 2018)
Coram:
Navsa
JA, Wallis JA, Willis JA, Mathopo JA, Pillay AJA
Heard:
27
February
2018
Delivered:
29
March 2018
Summary:
Actio
aquae
pluviae arcendae
– interdict – stormwater from higher property discharging
into municipal stormwater drainage system – combined
with water
from road and other properties – increasing flow in watercourse
on lower property – discharging in accordance
with approved
plans – discharge lawful – alternative claim based on
neighbour law unjustified.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Kruger J sitting as the
court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Pillay
AJA (Navsa JA, Willis JA, Mathopo JA concurring)
[1]
The
appellant, the Pietermaritzburg and District Council for the Care of
the Aged (PADCA), a voluntary association, appeals against
the
judgment of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg. The trial court dismissed with costs PADCA’s
action for an interdict to ‘stop the run-off of water from the
properties that form part of the Redlands Estate . . . in
excess of
the natural flow when . . . Redlands Estate was in a pristine
condition.’ The trial judge (Kruger J) gave leave
to appeal to
this court.
[2]
Redlands
Development Projects (Pty) Ltd (Redlands) is the first of 32
respondents opposing the appeal. Redlands and the second respondent,
Mr Hesse, developed the property that is known as the Redlands
Estate. Apart from the fifth respondent, Redlands Estate Homeowners
Association, the remaining respondents are either owners of property
on Redlands Estate or bodies corporate representing the owners.
All
the property owners are members of the association, which owns and
maintains the common services including roads and stormwater
systems.
[3]
The
appellant based its action on the
actio
aquae
pluviae arcendae
(
actio
).
[1]
To
determine whether PADCA meets the requirements of the
actio
,
I begin by outlining the topography of the area and the relative
location of the properties.
[4]
After
November 1993 PADCA began to develop ‘Woodgrove’ on its
property, being Lot 3344 Pietermaritzburg, to provide
residential
accommodation for the elderly. Shortly thereafter, development
started on Lot 321 Pietermaritzburg, being Redlands
Estate, a secure
enclosed estate that is situated on ground that slopes down to
Woodgrove. Old Howick Road, a steep incline from
the centre of
Pietermaritzburg, runs on the south western side of both properties,
bounding Redlands Estate directly but, separated
from Woodgove by a
single row of freehold houses. Redlands Estate is higher up Old
Howick Road than Woodgrove.
[5]
Redlands
Estate and the freehold and sectional title properties forming part
of it are not contiguous to Woodgrove. George McFarlane
Lane, a short
road, lies between the lower (eastern) boundary of Redlands Estate
and the upper (western) boundary of Woodgrove.
In November 1994
contractors for the developer of Redlands converted George McFarlane
Lane from a dirt track into a tarred road,
on two erven registered in
favour of the municipality. Another two privately owned properties
lie between George McFarlane Lane
and Woodgrove namely, Portion 1 of
Erf 674 and Portion 20 of Erf 837. Additionally, several other
freehold properties separate
the properties of some of the
respondents from Woodgrove.
[6]
The
municipal stormwater system consists of an open channel or gutter on
Old Howick Road adjacent to the boundary of Redlands Estate
and
running up to the entrance to the estate. This collects water from
further up the hill and from municipal stormwater pipes
before
diverting the water into drainage catchment pits and thence into two
pipes near the corner of Old Howick Road and George
MacFarlane Lane,
to discharge into a canal. From at least the 1930s the municipality
had discharged its stormwater from Old Howick
Road and higher
properties into and across the natural watercourse on the property
where Woodgrove now stands. PADCA built its
canal on this watercourse
during the construction of Woodgrove for the purpose of receiving
water from higher properties and drainage
within Woodgrove itself.
This pipe and another municipal pipe are laid over a stormwater drain
servitude on Portion 20 of Erf 837.
[7]
Additionally,
three roadside catchment pits – two situated on either side of
the entrance to Redlands Estate, the third further
along George
MacFarlane Lane – collect stormwater from George MacFarlane
Lane, including water run-off from Old Howick Road.
Redlands
Estate discharges stormwater into one of these catchment pits.
[8]
After
its development, Redlands Estate had a combined stormwater
reticulation and disposal system for all the properties within
the
estate. Together they contributed to the volume of water flowing into
the Redlands Estate disposal system. This combined run-off
of water
from Redlands Estate consolidated further in the catchment pits, from
where it passed through a 600 mm pipe under George
McFarlane Lane, up
to the headwall of PADCA’s canal. Some surface water from
Redlands Estate and Briar Ghyll runs off onto
George McFarlane Lane
on to Woodgrove, via an access road and through a stand of bamboo on
the western boundary.
[9]
Before
the development of Redlands Estate the property on which it stands
was not pristine. Instead it had a large residence, related
buildings, terraces and driveways. When this litigation started
Redlands Estate had developed into a residential estate and business
park with a boutique hotel, tarred roads, pavements and parking
areas, all of which resulted in the impervious coverage of the
land
increasing from 11.85 per cent pre-development to 42.2 per cent post
development.
[10]
Stormwater
within Redlands Estate is not attenuated; it is collected and its
discharge into the municipal system is controlled.
The sources of
water allegedly causing damage to Woodgrove are via the 600 mm pipe,
and over George MacFarlane Lane at both an
emergency exit driveway
and through bamboo at the top end of Woodgrove. This 600 mm
pipe replaced a 450mm municipal pipe
that had been installed before
Woodgrove was developed. The new pipe was built at the instance of
the municipality during the construction
of George McFarlane Lane.
Although the old pipe terminated on Portion 1 of 647, just short of
PADCA’s boundary, the outflow
from that pipe entered the
watercourse on Woodgrove. Water from the new pipe is also designed to
enter the watercourse. Predictably,
however, the new pipe carries
more water than the old pipe; it receives municipal stormwater
including water from the catchment
pits on George MacFarlane Lane.
[11]
The
600 mm pipe, the catchment pits and George MacFarlane Lane belong to
the municipality. The pipe transmits all the water it collects
not
only from Redlands Estate but also a considerable volume of water
flowing down from Old Howick Road. So it is practically impossible
to
distinguish water from Redlands Estate from other water flowing into
Woodgrove’s canal. PADCA accepts that the respondents
are not
responsible for water run-off from Old Howick Road, or for all the
water from George MacFarlane Lane. As mentioned above,
when
developing Woodgrove PADCA knew of the pipe carrying water from
Redlands Estate as well as the other sources of water into
the
natural watercourse. Hence, when it built its canal it knew that it
would receive the stormwater from Redlands Estate.
[12]
The
municipality has several servitudes registered in its favour.
As described above, a stormwater servitude exists under
George
MacFarlane Lane and to the headwall at the top of PADCA’s canal
into which two drains deposit municipal stormwater.
A condition of
title in Deed of Grant 1877 preserved the right of the municipality
to discharge water into the natural watercourse
on Woodgrove.
Preservation of this right is reinforced in the Deed of Grant of 1878
of
Woodgrove and as a specific condition of title in the Certificate of
Consolidated Title of Woodgrove. The private properties
between
Woodgrove and George Macfarlane Lane namely, Portion 1 of Erf 837 and
Portion 1 of Erf 647 are subject to a registered
servitude in favour
of the municipality and the province to drain existing and future
storm and surface water onto Woodgrove for
the effective drainage of
Old Howick Road. Manifestly, the purpose of the servitude over
both private properties, which ceases
at their boundaries, is to
carry stormwater over those properties. The watercourse over
Woodgrove would then bear the burden of
that water downhill and
discharge it into a pipe leading eventually into the Dorpspruit.
[13]
When
Redlands Estate was developed, one of the conditions in the
municipality’s Guidelines for Private Developers (Roads and
Stormwater Drainage) read:
‘
All
outfalls shall be arranged to discharge either into the City’s
stormwater system or a natural recognized watercourse …
Alternatively the design shall ensure that the post-development
run-off does not exceed the pre-development run-off.’
[14]
Although
a final signed plan could not be found, either in the records of the
municipality or the company that completed the works,
PADCA accepted
that on the probabilities the plan would have been approved. PADCA’s
witness, who was also responsible for
the works on Redlands Estate,
confirmed that the company ‘built . . . exactly as the
plan is. We built the stormwater
reticulation as per the design
plan.’ The City Engineer’s ‘approved’
stamp appears on the layout
plans for all the subdivisions. If the
developers had not complied with the guidelines and the design plan,
it is safe to say that
the municipality would not have approved the
plan for Redlands Estate.
[15]
In
summary, the respondents are disposing of their stormwater into a
reticulation system designed and installed according to approved
plans. The stormwater then enters the municipality’s stormwater
disposal system, which rests on several servitudes in the
latter’s
favour.
[16]
PADCA
relied primarily on the
actio
and alternatively on neighbour law. It pleaded that the respondents
had increased the run-off onto Woodgrove by proliferating artificial
works without attenuating or controlling the stormwater thus causing
damage to Woodgrove.
Both
the volume and the velocity of the water flowing from Redlands Estate
into the municipal stormwater system and on to George
McFarlane Lane
exceeded the natural flow. Although s 23 of the National Building
Regulations and Building Standards Act 103 of
1997 (Act) exempted the
municipality from any liability arising from its having approved
Redlands’ plans, PADCA contended
that it did not exempt the
respondents from their common law obligations, especially the alleged
duty to attenuate the run-off
from their properties. Whilst
acknowledging the servitudes registered in favour of the
municipality, PADCA submitted that the respondents
nevertheless had
no right to use municipal servitudes that were not registered in
their favour. As the owners of the higher properties
discharging more
water than the natural flow onto the lower property, they had no
servitudinal or other right to do so. Consequently,
even though the
respondents complied with the municipality’s requirements,
PADCA contended that they did not comply with
their common law
obligations.
[17]
The
trial court dismissed the action after finding first, that PADCA was
non-suited because its property was not contiguous to those
of the
respondents; consequently the
actio
did not apply. Second, the action based on neighbour law also had to
fail because the appellant had failed to prove animus or intention
on
the part of the respondents. The court opined that it was not
necessary to consider the exemptions under s 23 of the Act
because that would become necessary only if the question of damages
arose.
[18]
Three
legal principles arising from the
actio
are relevant:
a)
First,
a higher property has a natural servitude over a lower property,
which, as the servient property, is obliged to receive the
natural
water flow from the higher property.
[2]
b)
Second,
a higher property has no right to concentrate or divert the flow of
water onto a lower property unless it is allowed to
do so by a
servitude granted
by
regulation, the nature of the site or established custom.
[3]
c)
Third,
a person who undertakes
construction
work that causes water to flow elsewhere than its normal, natural
course or to flow greater, faster or stronger than
usual,
[4]
will be liable if it
causes damage unless (a) it acts
under
a statutory or a common law right and (b) takes reasonable care to
ensure that no injury is caused to others.
[5]
[19]
Applying
these principles to the facts, it is common cause that Redlands
Estate has a natural servitude over Woodgrove. As the servient
property, Woodgrove, has to carry the natural water flow from
Redlands Estate. It is also obliged by servitude to receive water
from the municipal stormwater system and allow it to discharge into
the canal. Woodgrove is subject to the terms and conditions
in the
original Deed of Grant dated 27 July 1855, in force when PADCA
took transfer under Certificate of Consolidated Title
T20859/94. One
such condition is that ‘[a]ll … watercourses, authorised
by the Corporation running over the land,
shall remain free and
uninterrupted . . .’.
[20]
It
is common cause that the developers of Redlands Estate altered the
natural flow of water onto Woodgrove. However, the design
of
the stormwater disposal system on Redlands Estate is such that its
water is collected within the estate before being diverted
into the
municipal system; some surplus run-off from the Redlands Estate, the
precise amount of which is uncertain, combines with
other water
run-off from Old Howick Road, to be diverted into the municipal
system. It then passes into the 600 mm municipal pipe
over the two
private properties before discharging into the canal on Woodgrove.
[21]
Manifestly,
from the design of the system, the respondents do not discharge any
water directly onto Woodgrove. They are also not
the sole source of
water discharging directly off George McFarlane Lane and down PADCA’s
concrete driveway. Furthermore,
the municipality approved the
stormwater system within Redlands Estate during construction; the
design plan met guidelines in place
at the time for stormwater
disposal. Consequently, the respondents were lawfully
authorised to dispose of their stormwater
into the municipal system.
Lastly, in regard to the
actio,
the developers of Woodgrove knew the design plan; not only did the
developers of both properties use the same firm of engineers,
but
also the same guidelines were then in force and applied to both
properties. In anticipation of receiving increased volumes
of water
from its own and higher properties PADCA built its canal during the
construction of Woodgrove.
[22]
Contrary
to the advice it received, PADCA did not line its canal with
concrete. It built the canal in place of the natural watercourse
when
construction of Woodgrove was underway, in order to carry the water
discharged by the municipal stormwater system as well
as stormwater
from within Woodgrove itself. So, even if water from Redlands
Estate did not discharge into this canal, scour
damage to the canal
by other water is inevitable. However, whether damages arise in these
circumstances is not a question we have
to answer. For now, PADCA
fails to establish a clear right entitling it to an interdict on the
basis of the
actio.
[23]
As to
whether contiguity was a prerequisite for invoking the
actio
,
in the cases to which the trial court was referred –
Bishop
v Humphries
,
Barklie
v Bridle
,
Pappalardo
v Hau
–
the
properties shared common boundaries.
However,
in
De
Villiers v Galloway
1943
AD 439
at 444 this court held that alien water may be discharged onto
neighbouring property if legislation or agreement allows. By ‘alien’
the court was referring to water not from an adjoining land. Roman
Law and Roman Dutch Law cite examples in which contiguity is
not a
requirement but that some degree of proximity should exist.
[6]
Whether
contiguity is a requirement is not relevant in the circumstances of
this case in which the municipality has directed how
the respondents
should dispose of their water.
[24]
As
for PADCA’s alternative claim based on the law of neighbours,
this Court held in
Regal
v African Superslate (Pty) Ltd
1963 (1) 103 (A) (per Steyn CJ) that our common law must be
investigated fully before considering the English law of nuisance,
which has not replaced our common law. And, importantly, that
liability flowed from our conventional principles of delict. In that
case the appellant sought to prevent slate waste being carried down
the river from the respondent’s farm and being deposited
across
his land. Even if the
actio
did not apply, the developers of Redlands Estate had a duty to comply
with the municipality’s conditions. In fulfilling this
duty
they acted reasonably. If the municipality required the respondents
to do more, either during or after construction, it would
have
directed them accordingly. After all, the municipality is the
authority responsible and accountable publicly for assessing
and
managing the water disposal needs of the area. In these
circumstances, PADCA cannot justifiably rely on neighbour law to hold
the respondents liable.
[25]
Regarding
the exemptions under the Act, the drainage system that Redlands
installed falls within the broad definition of ‘building’
under the Act in that it is a system ‘for the provision of a
water supply, drainage, sewerage, stormwater disposal . . .
in
respect of the building.’
[7]
As
such, the municipality had to and did approve plans for it. PADCA
does not suggest that the municipality’s conditions are
unreasonable or even negligent. If they were, then PADCA might have
proceeded against the municipality, which is not cited in this
case.
[8]
[26]
However,
the owner of a building is not exempted
‘
from
the duty to take care and to ensure that such building be designed,
erected, completed . . . in accordance with the provisions
of this
Act and any other applicable law.’
[9]
On
1 October 2008 amended National Building Regulations came into
operation.
[10]
Regulation
R 1(3) enabled the municipality to call on an owner to submit
for approval plans and particulars of a complete stormwater
control
and disposal installation for a site in certain circumstances. These
requirements are stricter in that plans have to be
approved first and
the evidence was that in the present day the municipality would
require a greater degree of on-site attenuation
of stormwater from a
development such as Redlands Estate. Previously, and when Redlands
Estate was being developed the municipality
accepted as-built plans.
Seemingly the need for municipalities to be more interventionist
before rather than after building starts
is being recognised.
[27]
PADCA
has not pointed to any provisions of the Act that the respondents
have violated. It relies on the common law but has established
no
duty arising under the common law. Nor has it proven that any rule of
the common law has been breached. The appeal is dismissed
with costs,
including the costs of two counsel.
D
Pillay
ACTING
JUDGE OF APPEAL
Wallis
JA (concurring)
[28]
I
have read the judgment of Pillay AJA and agree with her that this
appeal should be dismissed for the simple reason that, whether
PADCA’s case is expressed as lying under the Roman Law
actio
aquae pluviae arcendae
,
or under the more modern aspect of our law of delict characterised as
neighbour law, it must fail for the same reason. The reason
is that
the collection and discharge of water from the Redlands estate into
the municipal storm water system, from whence it discharges
into the
stormwater canal across PADCA’s property, Woodgrove, was
required by the terms upon which the construction of the
Redlands
development was approved by the Umsunduzi Municipality. In those
circumstances it is not open to PADCA to select one of
the many
sources from which that stormwater derives and demand that it
attenuate the water emanating from its property, in order
to relieve
PADCA of the consequences of the municipality being entitled to
discharge stormwater across Woodgrove.
[29]
In
view of that simple approach it is unnecessary to formulate and
express final views on several issues that arise from the manner
in
which PADCA has formulated its case. However, I think it desirable,
lest there be any misunderstanding, to highlight certain
matters not
dealt with in my colleague’s judgment.
[30]
Two
of those issues arise in relation to the availability of the
actio
aquae pluviae arcendae
in
our modern law. Firstly, like Hurt AJA in
Pappalardo
v Hau
,
[11]
I
have considerable doubts as to its availability in relation to damage
to urban, as opposed to rural, properties. In addition to
the Roman
Dutch authorities to which he referred, my reading of the relevant
passages in the
Digest
suggests
that it is a remedy that is available to the owners of rural
properties. Thus for example in D 39.3.17 it is said
that:
‘
Again
it must be understood that this action is not available except when
it is a field that is damaged by rainwater. When it is
a building or
a town that is damaged, this action is not valid, but an action can
be brought to deny the right of eavesdrip or
the flow of water onto
one’s property.’
Further
in D 39.3.19 it is said:
‘
Cassius
also writes that if water deriving from a town building damages
either a field or a rural building, it is an action on a
flow of
water and eavesdrip that should be brought.’
[12]
[31]
That
passage is explicit in saying that the remedy available in relation
to urban properties is not the
actio
aquae pluviae arcendae
.
There is academic writing that supports this conclusion,
[13]
as
well as Roman Dutch authority. Voet 39.3.4 says:
‘
Action
does not cover urban tenement. –
The
action falls away furthermore if water is hurtful not to a rural but
to an urban tenement, whether it flows down from an urban
or a rural
tenement, inasmuch as in that case suit would rather have to be
brought by the action for denying a liability to receive
drippings or
a stream of rain water.’
[32]
If
the distinction between urban and rural tenements is still part of
our law it raises the question of what is an urban and what
is a
rural property.
[14]
That
cannot be answered solely by reference to municipal demarcation in an
environment very different from that in which the
actio
evolved.
Beyond saying that rural properties would not be confined to those in
a local authority area, and that the type of urban
environment where
Redlands and Woodgrove are situated would probably not be regarded as
rural for the purposes of the
actio
,
it is undesirable to essay any definition. All of these questions
remain open and nothing in my colleague’s judgment lends
support to the notion that the
actio
is available in an urban environment or that, if under Roman and
Roman Dutch law it was not, we should develop the common law to
make
it available.
[33]
The
second issue is the one on which PADCA’s case was dismissed in
the high court, namely, the perceived need for contiguity
between the
higher and lower properties. This was not fully argued but counsel’s
attention was drawn to the decision of this
Court in
Cape
Town Council v Benning
,
[15]
where
Solomon JA gave a full exposition of the actio, without suggesting
that contiguity was a necessary element thereof. There
are two
passages in the Digest that suggest that contiguity may not be
essential in all instances,
[16]
although
the majority of texts are formulated in terms that deal with
contiguous properties. If contiguity is not essential, there
is the
difficult question of deciding when two properties are too remote
from one another for any obligation to rest on the upper
property to
safeguard against increasing the discharge of water onto the lower
property, especially if that discharge occurs through
the municipal
storm water system. Counsel was unable to suggest a solution when
this problem was posed and we need not determine
it. The problem
disappears if contiguity is required. As matters stand it
cannot be said with confidence that contiguity
is not a requirement
or, if it is not, what the relevant requirement of proximity would
be.
[17]
That
must await determination on another occasion.
[34]
Turning
to the claim based on neighbour law this was not fully developed
during the trial, perhaps because in opening the case counsel
for
PADCA nailed his colours firmly to the mast of the
actio
.
According to the leading judgment of
Regal
v African Superslate
[18]
the
criteria of reasonableness in the use of one’s property
determines what usage a neighbour must endure and what need not
be
tolerated.
[19]
The
evidence showed that the storm water system on Redlands was designed
in accordance with the then existing requirements of the
local
authority in order to collect storm water from Redlands and discharge
it into the municipal storm water system. No reason
was advanced for
saying that this was unreasonable.
[35]
That
conclusion obviates any need to consider whether the criterion of
negligence alone suffices for conduct by a neighbour to be
unlawful,
or whether a legal duty not to cause harm by negligence is required
and, if so, when that duty arises and the extent
thereof.
[20]
Any
person discharging storm water into a municipal storm water drainage
system must be aware of the possibility that the storm
water from
their property will be concentrated with other water and may be
discharged by the municipality in a way that causes
harm to others.
But there is something illogical in permitting the lower owner who
suffers loss as a result to recover from the
upper owner, when they
could only recover against the municipality if the latter was
negligent in constructing the municipal storm
water drainage
system.
[21]
A
different view would mean that the residents of the municipality
could be held liable for discharging storm water into the municipal
storm water system, even though the municipality could not. In those
circumstances, there is much to be said for the principle
that
negligence alone is insufficient to support an action based on
neighbour law and an element of unlawfulness is required.
[36]
The
duty element plays a central role in identifying the circumstances in
which a party will be liable for negligently causing harm
to
another.
[22]
The
reasonableness of imposing liability in a particular set of
circumstances – something different from the reasonableness
of
conduct when determining negligence – is central to this
enquiry.
[23]
Sometimes,
as with the conduct of a chicken hatchery adjacent to a residential
property,
[24]
or
the activities of a golf club in relation to its neighbours,
[25]
both
the existence of the duty and its extent will be reasonably obvious
and the focus will fall on questions of negligence. In
others it will
be more complex, especially where the activity in question is one
regulated by law. That is the present situation.
There was no
endeavour to explore the duty element in the present case and it
cannot be assumed that Redlands Estate owed any duty
to Woodgrove to
avoid causing it damage by the negligent discharge of stormwater from
its property.
[37]
The
last point that needs to be made is that the trial judge relied upon
various judgments, starting with that of Gregorowski J
in
Bishop
v Humphries
,
[26]
and
the passage in which the following was said about the implications of
claims such as these in a developed urban environment:
‘
The
fact is that when land is sold in small building plots, a state of
things is created and contemplated which puts an end to a
large
extent to the natural servitude which previously existed as regards
the water which falls on the plots. Each owner puts up
a building
which covers a substantial part of the plot. He places an impervious
surface over the naturally porous surface of the
soil. He accumulates
the water thereon. He alters the natural surface of the rest of the
area of his plot by paving it or allocating
temporary structures
thereon or digging it up, and thereby annihilates the natural
arrangement of the soil. The rainwater can no
longer flow as it used
to flow.’
[38]
The
claim by the upper owner to discharge water concentrated on that
property by the building activities on it was dismissed because:
‘
The
Applicant has altered all the old conditions existing on the stand
while it was virgin soil and in a state of nature and it
is quite
impossible for him to throw a burden on the adjoining stand which is
based on the assumption that his stand has preserved
rights which he
himself has put an end to by his own constructions on the property.’
[39]
While
the point pertinently made in these passages that urban development
must be a significant factor in dealing with claims such
as those
arising in the cases to which the judge referred is clearly correct,
it must be borne in mind that all those cases
[27]
involved
the owner of the upper property seeking to compel the owner of the
lower property to accept a discharge of water that had
been
concentrated by the development of the upper property. The present
case is the converse of that, in that it is the owner of
the lower
property objecting to the owner of the upper property concentrating
stormwater on its property so that there is an increased
discharge of
water across the lower property. This difference was not recognised.
If anything, the statement by Gregorowski J
supported rather
than undermined PADCA’s case.
_________________________
M
J D WALLIS
JUDGE
OF APPEAL
APPEARANCES
For
Appellant:
A J Dickson SC
Instructed by:
J Leslie Smith &
Company Inc, Pietermaritzburg
McIntyre Van Der
Post Attorneys, Bloemfontein
For
Respondent:
A J Troskie SC and P J Wallis
Instructed by:
Venns Attorneys,
Pietermaritzburg
Webbers Attorneys,
Bloemfontein
[1]
J
Voet
The
Selective Voet being the Commentary on the Pandects
(translated by Percival Gane
Dig
.
XXXIX) vol 6
Water
and the Action on the Diversion of Rain Water
at 34; T Mommsen, P Krueger and A Watson (eds)
The
Digest of Justinian
vol III D. 39.3.1 translation:
Water
and the action to ward off rainwater.
[2]
Digest
above fn 1 at
39.3.1.;
Williams
v Harris
[1998] ZASCA 51
;
1998 (3) SA 970
(SCA) at 981E-F;
Bishop
v Humphries
1919
WLD 13
at 17-18
.
[3]
Digest
39.3.2.; Voet
39.3.2.;
Pappalardo
v Hau
2010 (2) SA 451
(SCA) paras 11-12
.
[4]
New Heriot
Gold Mining Company Ltd v Union Government (Minister of Railways and
Harbours)
1916
AD 414
at 421.
[5]
Barklie v
Bridle
1956
(2) SA 103
(SR) at 109-110.
[6]
Voet 39.3.2.;
Digest
39.3.6.
[7]
Halliwell v Johannesburg Municipality
1912
AD 659
at 669;
New Heriot Gold Mining
Company Ltd v Union Government (Minister of Railways and Harbours)
1916 AD 420
at 421.
[8]
New Heriot
Gold Mining Co Ltd v Union Government (Minister of Railways and
Harbours)
1916 AD 414.
[9]
Section 23(b)
of the Act.
[10]
National
Building Regulations GN R574,
GG
8895, 30 May 2008.
[11]
Pappalardo v Hau
[2009]
ZASCA 160
;
2010 (2) SA 451
(SCA) para 6.
[12]
Mommsen, Krueger and Watson (eds)
The
Digest of Justinian
Vol 3 p 396. Voet
39.3.2 (Gane’s translation, Vol 6 p 37) is to like effect in
saying that: ‘The action is available
to the owner of a
tenement when rain water … does harm on the farm of a
neighbor as the result of an artificial work.’
[13]
Paul du Plessis ‘Die gelding van die
actio
aquae pluviae arcendae
in die
Suid-Afrikaanse Reg’ 2000
Fundamina
77 at 79-80. The view of William
Smith, William Wayte and G E Marindin
A
Dictionary of Greek and Roman Antiquities
(1890)
sv
aquae pluviae arcendae actio
was that the action only lay for damage to land and not for damage
to a town or building. The authors also say that it was a
defence to
the
actio
if
the act was done with the permission of a public authority.
Redeleinghuis v Bazzoni
1976
(1) SA 110
(T) held that the distinction between urban and rural
tenements remained part of our law.
[14]
Pappalardo v Hau
para
6, fn 7.
Benoni Town Council v Meyer
1961 (3) SA 316
(W) at 318D-H.
[15]
Cape Town Council v Benning
1917
AD 315
at 319-321.
[16]
D 39.3.6 (Mommsen
et
al
op cit p 399) records Ulpian as
writing that:
‘
Sabinus says
that if my neighbour next-but-one carries out some work and water
from it flows down through my immediate neighbour’s
property
and causes me damage, I can bring an action against the immediate
neighbour or, leaving him out of it, against the neighbour
next-but-one. This view is correct.’
D 39.3.18 attributes to
Javolenus the following:
‘
If a piece of
work which causes rainwater damage is carried out on public land, no
action can be brought. But if the public land
intervenes between the
site of the work and that of the damage, an action will be
possible.’
[17]
A J van der Walt
The
Law of Neighbours
(Juta, 2010) 240-241
suggests that for claims based on nuisance the properties must be
situated close together, but not necessarily
adjacent to one
another.
[18]
Regal v African Superslate (Pty) Ltd
1965
(1) SA 102
(A). At 109F-H Steyn CJ specifically refers to the
need for unlawfulness.
[19]
See also
Allaclas
Investments (Pty) Ltd and Another v Milnerton Golf Club and Others
[2007] ZASCA 167
;
2008 (3) SA 134
(SCA) paras 15 to 17 and 21.
[20]
See J R L Milton ‘The law of neighbours in
South Africa’
1969
Acta Juridica
123
to 269 and the discussion of this
topic and the authorities referred to by Van der Walt,
op
cit
, Chapter 1.
[21]
Halliwell v Johannesburg Municipality
1912
AD 659
at 669;
New Heriot Gold Mining
Company Ltd v Union Government (Minister of Railways and Harbours)
1916 AD 420
at 421.
[22]
Administrateur, Natal v Trust Bank van Afrika
Bpk
1979 (3) SA 824
(A) at 833A;
Telematrix (Pty) Ltdt/a Matrix Vehicle
Tracking v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) par 14.
[23]
Trustees, Two Oceans Aquarium Trust v Kantey &
Templar (Pty) Ltd
2004 (3) SA 138
(SCA) para 11. See generally F D J Brand ‘Aspects of
Wrongfulness: A Series of Lectures’ (2014) 25
Stellenbosch
Law Review
451.
[24]
De Charmoy v Day Star Hatchery (Pty) Ltd
1967
(4) SA 188 (D).
[25]
Allaclas Investments (Pty) Ltd and Another v
Milnerton Golf Club and Others
[2007]
ZASCA 167; 2008 (3) SA 134 (SCA).
[26]
Bishop v Humphries
1919
WLD 13
at 17 to 18. The others were
Barklie
v Bridle
1956 (2) SA 103
(SR) at 108
to109 and
Pappalardo v Hau, supra.
To
these can be added
Green v Borstel
1940
(2) P.H. M89 (W)
[27]
Williams v Harris
1998
(3) SA 907
(SCA) which the judge distinguished involved an objection
by the lower owner to the discharge of stormwater from the upper
property.