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[2014] ZAWCHC 184
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Abbott v Overstrand Municipality and Others (16599/2013) [2014] ZAWCHC 184 (1 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
number:16599/2013
DATE:
01 OCTOBER 2014
In
the review between:
DAVID
WILLOUGHBY
ABBOTT
..............................................
APPLICANT
And
OVERSTRAND
MUNICIPALITY
...............................
FIRST
RESPONDENT
MINISTER
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS
AND TOURISM
.....................................
SECOND
RESPONDENT
MINISTER
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING
WESTERN
CAPE
....................................................
THIRD
RESPONDENT
THE
KLEIN RIVER ESTUARY FORUM
.............
FOURTH
RESPONDENT
JUDGMENT
BLOMMAERT A J
INTRODUCTION
1. The Klein
River Estuary near Hermanus, known locally as the Hermanus lagoon, is
an estuarine lake that seasonally opens and closes
under normal river
flow regimes. The estuary stretches from the sea (or mouth of
the estuary, when open) to just beyond the
Stanford bridge at
Stanford. The estuary is a major national and local asset that
provides a host of ecosystem services to the
region and to the entire
South African coast. It is of both high biodiversity and
conservation value which, in turn, requires
that it be maintained as
a healthy functional estuary. It has been noted as the 5
th
most important estuary in South Africa.
2. The estuary
can be divided into 3 sections. The lower reaches, stretching from 0
to 3 kilometres from the mouth, and comprising
the mouth area and the
inlet channels. When the mouth of the Klein River estuary is
closed, it is separated from the sea
by a sand-berm (hereinafter “the
berm”). To establish connectivity with the sea the berm needs
to overtop and be eroded
by water (from the land or the seaside), or
artificially breached (hereinafter the “mouth”).
3. The second
part of the Klein River estuary, which became known as "the
Vlei". The Vlei comprises a large unconstrained
main water body
upstream of the tidal channels to where the estuary once again
becomes a narrow confined channel. This stretches
from approximately
3 kilometres to 8.5 kilometres from the mouth (hereinafter "the
Vlei").
4. The remainder
of the Klein River estuary comprises of the Klein River which is the
area from 8.5 to 17.5 kilometres upstream
from the mouth and
stretches from the estuary upstream of the Vlei to a few hundred
metres beyond the Stanford Bridge at Stanford
(hereinafter "the
River”).
5. Since ±
1860 the berm has from time to time been artificially breached. The
breaching of the berm has been the subject
matter of a number of
scientific studies. The reason for artificially breaching the berm is
that, with the lapse of time, the Vlei
area builds up with sediment.
In order to clear this sediment it becomes necessary to breach the
berm, either naturally or artificially,
in order to create a flushing
action. In other words, the hydrological power of the Vlei is
harnessed. This, in turn, cleans the
lagoon and also provides support
for the fauna and flora in the lagoon. It has been scientifically
proved that this is necessary
to preserve and conserve the
biodiversity of the area.
6. During the
19
th
century people began settling along the Klein River
estuary and, to prevent these properties from being flooded, a
practice of
artificially breaching the mouth of the estuary was
instituted. Initially artificial breachings were undertaken by teams
of workers
using spades. At a later stage mechanical equipment, such
as bulldozers, was used to enable artificial breaching at even lower
levels.
7. When an
estuary mouth is closed the inflow from the River gradually fills the
estuary. This occurs when the River inflow exceeds
the level of
losses due to evaporation and seepage. Under natural conditions, and
at a time before human settlement took place,
the water levels in the
Klein River estuary would eventually exceed the height of the berm
and a breaching would occur naturally
at levels often exceeding 3 to
3.5 MSL (metres above sea-level).
8. Applicant in
this matter owns portion 1 of the farm Middelburg, number 643,
Stanford in the Western Cape, which property is situated
on the banks
of the River and forms part of the estuary, albeit as described
herein on the so-called, River section.
9. He complains
that his house has been flooded and alleges that the First Respondent
had previously taken steps, especially by
breaching the mouth of the
estuary at a certain level, to prevent his property on the River from
being damaged by water. However,
First Respondent had upwardly
adjusted the mean water level at which the berm would be breached.
Applicant alleges that this decision
by First Respondent caused the
damage he has suffered.
10. In his Notice
of Motion as amended the Applicant seeks the following relief:
“
1. That
the decision of First Respondent to refuse to take any steps to
prevent damage from being occasioned to Applicant’s
house,
built on his property being portion 1 of the farm Middelburg 643,
Stanford, Western Cape ("the house") caused
by the flooding
from the Klein River be reviewed and set aside in terms of Section
6(1) and (8)(1)(c) of the Promotion of Administrative
Justice Act 3
of 2000 (the Act), or alternatively in terms of the powers of review
which this Honourable Court has at common law,
and that the said
decision be remitted to the First Respondent for reconsideration
which shall include consideration of steps to
be taken to protect the
house, against any flooding of the house, which might be caused by
the failure to artificially breach the
berm of the mouth of the Klein
River or to only breach such berm when the mean water level in the
Klein River estuary exceeds 2.1
metres.
2.1 Declaring
that an established practice exists in respect of the breaching of
the berm at the mouth of the Klein River Estuary
whenever low lying
properties were threatened with damage;
2.2 Declaring
that such established practice can only lawfully be departed from if
the First Respondent takes reasonable steps to
protect the house
referred to in prayer 1 above from damages occasioned by the flooding
of the house as a result of the departure
from established practice.
2.3 Directing
that First Respondent shall take reasonable steps to prevent the
house from such flooding”
HISTORICAL
OVERVIEW AND BASIS FOR THE APPLICATION
11. Applicant
purchased his property along the River on which his home is situated
during 1982. According to him, prior to building
on his property, in
1989, he held many and lengthy discussions with officials of the
local authorities being the predecessors in
law of the First
Respondent. During these discussions he was advised that there
had been a policy followed by the Municipality
of breaching the berm
at the estuary mouth when the water in the Vlei reached a height of
2.1 MSL. At this stage it bears
noting that the First
Respondent emphasises that this was the minimum height at which the
berm could be breached. This is
also evident from the CSIR
research report entitled “
Estuaries of the Cape”
dated
October 1989 and annexed to Applicant’s founding papers.
12. Building
plans for Applicant’s house were approved by the then
predecessor in law of the First Respondent being the Overberg
Regional Services Council and Applicant thereafter commenced building
his home on the said property.
13. In his
Founding Affidavit the Applicant alleges that up until 2008 there
were no occasions on which his home had been flooded
by water from
the River. As will appear more fully below, this allegation is
subject to some controversy. Up until at least
that time the
applicable policy followed by the First Respondent (and its
predecessors in law) was to breach the berm when the
water in the
River reached a certain height, also the Applicant alleges that steps
were taken to protect low lying properties by
erecting floodwalls or
similar protection when the water in the Vlei and River rose to
heights which threatened those properties.
The papers however
conclusively reveal that the properties which were protected were
protected for reasons of wave incursions caused
by winds and were
located on the Vlei and
not
the River. The protection
was thus designed to reduce the impact of wave energy and not to
protect properties from flooding.
14. In June 2009
an entity known as the Klein River Estuary Forum (the Fourth
Respondent herein) was established.
15. This Forum
(hereinafter referred to as “
KREF
”) was initially
not created pursuant to any empowering legislation nor was it
incorporated according to any applicable legislation.
16. In March 2010
a KREF workshop was held at which a document entitled the Mouth
Management Plan for the Klein River was adopted
(hereinafter “
the
Management Plan
”).
17. In 2011 the
Management Plan for the period 2010 to 2015 was adopted. It is
Applicant’s contention that the following
provisions of the
Management Plan were of direct importance to him and affected him
negatively.
17.1. In the
absence of “crisis conditions” as deemed by a specialist
team, artificial breaching would not be contemplated
at water levels
less than 2.6 MSL and that “higher levels” were
“preferred”;
17.2. The
artificial breaching would not be considered in order to prevent
water inundation (i.e flooding) of low lying private
or public
properties.
18. It is further
Applicant’s contention that, following the adoption of the
Management Plan, he experienced problems of the
repeated flooding of
his property and that the height of the water caused the River to
burst its banks which, in turn, caused damage
to his house.
19. In support of
his allegations the Applicant filed a Supporting Affidavit by one,
John Fredick Glen Fourie, a professional structural
engineer.
The said Fourie inspected the house, observed the cracks therein, and
explains this as follows in his report annexed
to his Supplementary
Affidavit:
“
The
house is built on a River bank. The soil has fine silty particles and
larger sand particles. It is evident from the lack
of cracks to
the building prior to the rising of the flood level, that the soil
layers at and under founding levels were stable.
This
conclusively proves that the cracks were caused by the water flooding
the area.
The raised
water level has caused these stable layers to become saturated with
water causing the static load of the building to
be partially
supported on the water.
Large
particles in the saturated soil settle to a lower level, and the
smaller silty particles rise to a higher level, as showed
in the
diagram below.
The soil
particles can then re-arrange to a tighter fit. When the flood
passes, the water is removed from the layers and the
soil again
supports the full static load of the building. However the
support will now occur on the lower level than the
pre-flood level
due to consolidation of the soil. The building foundations have
moved downwards. The downward movement
is not constant over the
entire building, the foundation closest to the River will settle more
than those away from the River.”
20. It is to be
noted that Fourie alleges that he visited Applicant’s home on
or about 2 September 2013, on which date he
conducted his
investigation.
21. This First
Respondent, in turn, disputes these allegations. Furthermore
the First Respondent raises various further defences
inter alia
that –
21.1. Applicant
persisted against the wrong Respondent;
21.2. Applicant
is the author of his own misfortune by having built his house closer
to the flood line than he was authorised to
do;
21.3. Applicant
had changed the contour of the River.
22. It would seem
to me that before Applicant, as it were, gets out of the starting
blocks, he has to prove that First Respondent's
conduct, of which he
complains, is the cause of his damage. This means that it must first
be established that, by raising the level
at which the berm is
breached, it in fact caused the flooding of Applicant’s
property and that this was the cause of the
damage to Applicant’s
property.
23. As First
Respondent denies that this is the case and pertinently places this
allegation in issue, the question as to the proper
approach to be
adopted by a Court in evaluating evidence on Affidavit becomes
relevant.
24. From the
relief sought it is evident that the Applicant seeks final relief on
motion. He has not applied for a referral
to oral evidence and
therefore the issues should be evaluated on the papers.
THE LEGAL
POSITION
25. The general
rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J
concurred) in
Stellenbosch Farmers Winery Ltd v Stellenvale
Winery (Pty) Ltd
1957 (4) SA 234
(C)
at E – G as
follows:
“…
where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as
stated
together with the facts in the application in the Respondent’s
affidavit justify such an order … Where it is
clear that,
facts though not formally admitted, cannot be denied, they must be
regarded as admitted.”
26. Corbett J A
(as he then was) in
Plascon–Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD)
at page
634E to 635C commented as follows on the aforesaid:
“
It
seems to me, however, that this formulation of the general rule and
particularly the second sentence thereof, require some clarification
and perhaps, quantification. It is correct that, where in
proceedings on notice of motion disputes of facts have arisen on
the
affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those facts averred in
the
Applicant’s affidavits which have been admitted by the
Respondent, together with the facts alleged by the Respondent,
justify such an order. The Power of the Court to give such a final
relief on the papers before it is, however, not confined to
such a
situation. In certain instances the denial by a Respondent of a fact
alleged by the Applicant may be such as to raise a
real genuine or
bona fide dispute of fact (see in this regard
Room Hire
Company (Pty) Limited v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T)
at 163 to 165;
Da
Mata v Otto NO
1972 (3) SA 858
(A)
at
882D – H). If in such a case Respondent has not availed
himself of his right to apply for the deponents concerned
to be
called for cross-examination under Rule 6(5)(g) of the Uniform Rules
of Court (at
Petersen v Cuthbert and Co Ltd
1945 AD 20
at 428;
Room Hire
case supra at 1164) and the Court is satisfied as to the
inherent credibility of the Applicant’s factual averment, it
may
proceed on a basis of the correctness thereof and include this
fact amongst those upon which it determines whether the Applicant
is
entitled to the final relief which he seeks (see eg.
Rikhoto
v East Rand Administration Board and Another
1983
(4) SA 278
(W)
at 283E – H). Moreover, there
may be exceptions to this general rule as for example where the
allegations or denials
of the Respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers (see
the remarks of Botha A J A in the
Associate
South African Bakeries
case supra at 934A).”
27. More recently
the SCA refined the aforesaid in
Wightman t/a J W Construction
v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
SAC
at
paragraph 12 as follows:
“
Recognising
that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks
final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s allegations
are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched or clearly
untenable
that the court is justified in rejecting them merely on the papers”
IS THERE A
DISPUTE OF FACT?
28. In essence
the question is whether the raising of the breach level of the berm
from 2.1 to 2.6 MSL is the cause of the Applicant’s
damage.
In paragraph 54 of his Founding Affidavit Applicant makes the
following allegations:
“
However
this all changed when a new committee called the Klein River Estuary
Forum was established in or about August 2009 ("the
Fourth
Respondent hereto")
29. In his
Replying Affidavit Applicant however alleges that from 1989 to 2010
no flooding of his property occurred and that “
the flooding
which has occurred since 2010 has affected the buildings erected in
accordance with the approved plans
”.
30. This seems to
be confirmed by the said Fourie who inspected the Applicant’s
premises on 2 September 2013. In his
affidavit he says:
“
On the
same date I visited the Applicant’s property during which visit
I was briefed that the house was built some 20 years
ago and that it
had recently suffered damage due to continued flooding of the
property”
31. It should be
noted that Fourie attended Applicant’s home on 2 September
2013, that is before the flood of 15 to 17 November
2013 and, in any
event, Applicant admits the flooding in 2013 was caused by an unusual
flood that came down the River and had nothing
to do with the
breaching of the berm. In fact the berm had been breached at
that point in time. Thus it seems to me
that the cause of his
complaint is founded on alleged floods during 2010 to 2012. This
aspect will be dealt with in more detail
below.
32. It is against
this background that the allegations by the First Respondent should
be seen and evaluated.
33. First
Respondent’s answer to this is formulated as follows in
paragraph 38 of its Answering Affidavit:
“
As
referred to in the Estuarine Specialist Report and as CSIR has
remarked upon over the years (see paragraphs 89.9, 92, 106.3,
115
below) while artificial breaching can moderate maximum water levels
under the low to moderate inflow conditions the flood attenuation
effect is significantly less in the upper reaches in comparison with
the Vlei (the upper reaches are only about 50 metres wide
in
comparison with the Vlei which is 650 to 1500 metres wide).
Therefore the lack of storage area will drive up the water
levels
regardless of the mouth state and natural or artificial breaching
practices. In other words, Mr Abbott’s property
can be
flooded regardless of whether the mouth is open or closed and in
contra- distinction to low lying properties on the Vlei,
flood
protection measures would need to be in place year around to minimise
flood risk because the properties in the upper reaches
of the Klein
River along the River, are generally subject to a significant
increase in water levels over a short period during
floods.
Also as recognised by Mr Abbott himself (see paragraph 136.3 below)
increased sedimentation in the upper reaches
of the estuary has
retarded the rate of the flow of the River and has narrowed its
course”.
34. In support of
the aforesaid, First Respondent specifically annexed a CSIR report
published in February 1997. The report
is entitled the “
Klein
River Estuary, the Effects of High Water Levels During the Mouth
Breaching in 1996
”, and was prepared by the Division of
Water Environment and Forestry Technology, CSIR and Dennis Moss
Partnership Inc.
35. Under the
heading “
The effects of High Water Levels before Breaching
on properties along the Klein River”
, the authors state the
following:
“
All
this information indicates strongly that flooding at Stanford is
probably mainly caused by extremely high flows in the Klein
River,
and that it is unlikely that the higher water levels in the Vlei
before breachings would have a meaningful additional contribution
to
flooding in Stanford. Constrictions in the Riverbed, such as the road
bridge and also the narrow and shallow sections downstream
determine
most likely the maximum flood levels reached at Stanford.
The mark of
the water level used to indicate whether mouth breaching needed to be
undertaken, referred to by Mr Carstens, was probably
more relevant in
terms of a very high River flow occurring. Such high River flows were
more likely to result in a quick rise of
water levels in the Vlei
which in turn could lead to problems of flooding of properties on the
banks of the Vlei. It was more likely
that the Vlei be breached to
prevent flooding of properties on the Vlei than to prevent flooding
the properties on the Klein River
in the Stanford area.”
36. The report
concludes as follows:
“
It is
unlikely that high water levels in the Vlei will result in a
significant increase in flood levels in Stanford. High flood
levels
at Stanford are mainly determined by very high River flows during
major floods, and are also related to “bottleneck”
effect
in the River (i.e. River morphology, alien vegetation infestation at
River banks, etc)”.
37. In a
follow-up report dated 1998 the CSIR again makes the following
comments:
“
Except
from the area near the mouth, significant differences especially
upstream are not observed between these surveys”.
38. In discussing
breaching in 1998, the CSIR comments as follows:
“
1. The
increase of more than 4 metres in the water level at the River flow
gauging station within two hours shows that a flash flood
front
occurred, like a wall of water coming down the River.
At such
floods, the height of the maximum flood levels along the River are
determined by the local River typography. This
was also the
case in Stanford. The maximum flood levels in Stanford were not
determined by water levels further downstream
in the Vlei.”
39. Furthermore,
First Respondent says in paragraph 280.2:
“
I deny
further that breaching the berm artificially would necessarily
protect Mr Abbott’s property.
40. In support of
this allegation First Respondent also refers to paragraph 36 of the
estuarine specialist affidavit which reads
as follows:
“
36.
In contrast properties in the upper reaches of the Klein Estuary, are
generally subject to a significant increase in water levels
over a
short period during floods. As high water levels in the upper
reaches can occur under estuary open or closed mouth
conditions flood
protection measures would need to be in place year round to minimise
flood risk. To be effective flood protection
measures would
need to encircle the property
[PB1]
or
they need to stretch from the water’s edge to higher ground to
prevent water from entering the property”
41. Lastly, the
1998 CSIR report concludes that:
“
The
above reading is significant because as stated earlier it proves that
the high flood levels at Stanford are determined by the
magnitude of
River floods and not by high water levels in the Vlei (see also CSIR
1997).”
42. In my view it
is evident from the aforesaid that there is a dispute as to exactly
what the cause of the Applicant’s damage
is. It is therefore
necessary to consider the Applicant’s reply to the Respondent’s
contentions.
43. In its
Replying Affidavit and in a reply to the allegations contained in
paragraph 38 above, the Applicant replies as follows:
“
However,
I do point out that the method of flooding postulated in paragraph 37
is incorrect. The flooding happens purely as
a result of the
rising water levels as can be seen on the photographs contained on
page 29 of annexure “OM98”. I also
point out the flooding
that occurred during November 2013 did not occur in the manner
described in paragraph 37 although it was
a major flood that
devastated much of the Cape Peninsula and Overberg to the extent that
even the Vergelegen Mediclinic in Somerset
West was flooded.
44. Of further
significance in the Replying Affidavit is the following:
“
First
Respondent ignores the reality of the situation which is that from
1998 to 2010 no flooding of my property occurred.
It was only
when the decision was taken that artificial breaching of the River
mouth would cease flooding of the Applicant’s
property
commenced.”
“
Furthermore
for a period of over 20 years thereafter no flooding problems were
experienced given the fact that the local authority
continued to
apply the breaching policy which it had applied in the past.”
“
I
furthermore point out the flooding which has occurred since 2010 has
affected the building erected in accordance with the approved
building plans.”
45.
The
aforesaid should be seen in the light of the historical factual
evidence contained in First Respondent’s Answering
[PB2]
Affidavit relating to breaching of the berm, for instance:
45.1. On 3 August
1991 the berm was naturally breached at 2.8 to 2.9 MSL;
45.2. On 2 July
1997 the berm was breached at 2.66 MSL and the CSIR report comments
as follows on the Applicant’s property:
“
Mr D
Abbott who has a house on the southern bank of the River between
Stanford and the Vlei could have had damage if the water levels
had
increased by another 0.30 metres”
45.3. On 11 June
1998 the berm breached naturally at 2.63 MSL;
45.4. On 27
September 1999 the berm was artificially breached at 2.63 MSL;
45.5. In
September 2001 the berm was breached at 2.8 MSL;
45.6. In 2003 the
berm was breached at appoximately 2.6 MSL;
45.7. In August
2006 the berm was breached at 2.75 MSL;
45.8. In 2007 the
berm was breached at 2.6 MSL;
46. In seeking to
persuade me that the Applicant has established the cause of his
damage to be the higher breaching levels, Applicant
makes the
following statement in his submissions in Reply:
“
The Ice
Boland Report was specifically commissioned by First Respondent, was
put up by it as part of its answering papers and is
a report dealing
inter alia, specifically with the effect rising water levels have on
the property. It is thus an integral
part of the First
Respondent’s case and the conclusion put forward constitutes
part of First Respondent’s case inter
alia for purposes of
evaluating disputes based on the test formulated in Plascon Evans.
The report specifically with reference
to the Applicant’s
property states the following at paragraph 4.2.2 thereof.
“
Due to
the level of the site and the proximity to the Klein River lagoon,
the water level in the lagoon will significantly impact
the flood
line calculation. In line with this, the (artificial/natural)
breaching of the lagoon is a critical factor.
As the breaching
level is one of the items under consideration, the flood lines for
three breaching scenarios have been calculated
namely:
1.
2.1
MSL;
2.
2.66
MSL;
3.
2.8
MSL”
47. To my mind,
the aforesaid Ice Report should be seen in the context of certain
reservations contained therein. So, for instance,
in the introduction
to its flood line investigation the report says:
“
Determination
of flood lines is case-specific and considering the complexity and
scale of the Klein River catchment and the urgency
of this report
there was insufficient time to carry out a detailed hydrological
analysis of the catchment”.
48. Furthermore,
the Ice Reports contains the following:
“
Only
the area 100 metres upstream and downstream of the Abbott property
was surveyed and modelled for this flood line analysis.
With
reference to the Google Earth extract below, diagram 4, the shape of
the River upstream would be a major influencing factor
in determining
flood lines. The high energy levels in the flooding River,
choked by the reef bed (A) would force the water
to accelerate around
the bend. This high localised velocity would lead to high
energy levels on the outer edge of the River
(B). It is
therefore likely that a portion of the River would split to flow
below the reef line (C). This area is low
lying and would
direct flood water directly at the Abbott dwelling, prior to
re-joining the main stream. The remnants of
the side stream are
still evident at (D).
49. Finally the
so-called Ice Report concludes:
“
As
mentioned in the report, the flood lines presented in this report are
conservative (low) and should not be used for setting out.
In order
to calculate more accurate flood lines a detailed hydrological
analysis of the Klein River catchment and survey of the
River
upstream of the Abbott property is required.”
50. To my mind,
the Ice Report should be regarded with circumspection and should be
seen merely as one of the factors to be taken
into account in
determining the question of whether Applicant has made out its case
on the papers.
51. As appears
above the only years during which Applicant avers that he suffered
damage are from 2010 to 2013.
52. It must be
remembered that 2013 can be excluded as that was a flood, for
which the First Respondent, even on Applicant’s
own version,
cannot be held accountable.
53. Furthermore,
Applicant’s engineer, Fourie who attended the scene in
September 2013 already maintained that there were
cracks i.e. before
the 2013 flood. In any event, the berm was open during the 2013
flood.
54. As to the
period 2010 to 2012 the following appears from the papers:
54.1. In a
document considered by KREF entitled “
Artificial Breaching
at the Klein River Estuary, Hermanus”
dated 9 September
2011 the following is said relating to 2010.
“
However,
the mouth did not open during 2010 because drought conditions meant
that the water level remained below 2.6 MSL.”
54.2. It is thus
unlikely that Applicant’s house was flooded in 2010.
54.3. In his
founding papers Applicant maintains that his property was flooded and
he annexes copies of photographs, that he alleges,
depicts the
flooding during September 2011. These photographs show water
close to Applicant’s house but not in the
house.
54.4. The KREF
Report referred to in paragraph 54.1 above, and dealing with 2011,
reports as follows:
“
The
house of David Abbott on the River bank, and guest cottage owned by
Bill Mylae and Mr Neil Mc Carthy on the estuary’s
northern
shore, were at risk if the water rose further”
54.5. On 9
September 2011 the berm was breached at a level of 2.78 MSL.
54.6. It is thus,
at least, doubtful whether Applicant’s house was flooded in
2011.
54.7.
In
2012 the berm was breached at ± 8.00 am on 14 August at 2.78
MSL.
[PB3]
54.8.
On
13 August 2012 at 6.20pm Applicant sent an e-mail to one Mr
Groenewald at the Overstrand Government
[PB4]
(sic
)
and
inter
alia
mentions
the following “
I
also informed him that the water would enter a portion of my house
should it rise a further 400 mm.”
54.9. Furthermore
Applicant attended the KREF meeting that discussed the 2012 breaching
and made no mention of the flooding of his
house.
54.10. To my
mind, the aforesaid does not conclusively establish that Applicant’s
house was flooded during 2012.
55. At the very
least, I am of the opinion that the aforesaid is indicative of the
fact that Applicant has not conclusively shown
that his property was
indeed flooded during the period 2010 to 2013.
56. Of particular
concern to me is that the Applicant alleges that his problems only
began in 2010. However, the factual evidence
is that, on a number of
occasions in the previous years (as set out above), the breaching of
the berm took place at considerably
higher levels than the 2.6 metre
mark, of which he complains. This, in turn, raises the question
as to why the raised level
during these years did not cause Applicant
any damage. Applicant has not even attempted to deal with this
aspect.
57. First
Respondent has pertinently raised the issue as to the cause of the
flooding of Applicant’s property and hence Applicant’s
alleged damage. In support of its allegations First Respondent
has not only given a reason for its view, but has also substantiated
those reasons by means of documentation and expert reports.
58. To my mind
First Respondent’s response as to the reasons for the alleged
flooding of Applicant’s property is not
“
so
far-fetched and clearly untenable that it can confidently be said, on
the papers alone, that he is demonstrably and clearly unworthy
of
credence”
see also
Fakie N.O v CC 211 Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
at paragraph 56.
59. First
Respondent has set up a perfectly reasonable answer to the
Applicant’s allegations which the Applicant has failed
to
convincingly dispute in reply. I am left in serious doubt as to
what caused Applicant’s damage and I am consequently
unable to
decide this issue on the papers as they stand.
60. At the outset
of this matter, and during argument, I indicated to the parties that
I had some difficulty with, what I considered
to be a factual
dispute. However, despite this, Applicant did not apply for a
referral of this matter to oral evidence.
61. In the light
of the aforesaid, I considered the possibility that I should
mero
motu
refer the matter to oral evidence.
62. In dealing
with this issue Myburgh J (with whom De Villiers J and Nestadt J
concurred) in
Joh-Air (Pty) Ltd v Rudman
1980 (2) SA
420
(T)
is reported as follows:
“
It
requires in my view a bold step, by a presiding Judge in an opposed
application, to refer the matter to evidence on trial mero
motu
because it is a real possibility that the Applicant had decided not
to ask for such proceedings to be followed (at page 428
H)
and also at page
429G – H where the learned Judge says:
“
In my
view, it would render a Judge’s task impossible, even if the
Applicant is obliged to come to Court by way of application,
if at
the end of the argument in any such case he must consider whether or
not he should mero motu refer the matter to evidence
or trial.
It would be unwise to adopt such a procedure in view of all the
considerations that could reasonably have exercised
the Applicant’s,
or Respondent’s mind in not asking for such procedure to be
followed”.
63. As stated
above, Applicant was at all times aware of the risks involved in his
approach to this matter.
64. Furthermore
it would seem to me that, in light of the vast amount of scientific
evidence available, it is certainly not a cut
and dried matter as to
what evidence would be needed to determine the issue.
65. From the
aforesaid it is clear that there are a number of factors which are
possible causes of flooding of the Applicant’s
property.
66. The height of
the breaching of the berm is but one of these factors and the leading
of oral evidence would in all probability
not resolve this problem.
67. It is for
these reasons that I decided not to refer the matter to oral evidence
mero motu.
68. As appears
above, I am of the view that the Applicant has not succeeded in
getting out of the, so-called, “
starting blocks
”
and therefore it is not necessary for me to deal with the further
defences raised by First Respondent.
69. In the
premises the application is refused with costs, such costs to include
the costs of two counsel.
BLOMMAERT
A J
CAPE
TOWN
[PB1]
check
[PB2]
First
Respondent's
[PB3]
Twice?
[PB4]
Municipality