Bloemfontein Town Council v Richter

• Jurisdiction: South Africa
• Judge: Curlewis CJ, Stratford JA, De Wet JA, Watermeyer JA and Beyers AJA
• Judgment Date: 22 December 1937
• Citation: 1938 AD 195
• Court: Appellate Division

Stratford, J.A.:

The appellant municipality (to whom I will refer hereafter at the Municipality) was defendant in an action instituted by the respondent (hereinafter referred to as the plaintiff) wherein he claimed a declaration that the Municipality were not entitled to do certain alleged unlawful acts and an interdict and damages. Across the Modder River the Municipality has built two dams for the storage of water for the purpose of supplying water to the inhabitants of Bloemfontein. One of these is called the Mazelspoort dam and the other, four and a half miles up stream, is called Mockesdam. The plaintiff is a riparian owner on the East or right bank between the two. Sluice gates have been inserted in both clams one in Mazelspoort weir and two in that of Mockesdam. In para. 9 and following paragraphs the following allegations appear:

Stratford, J.A.

"Defendants have wrongfully, unlawfully and continually: (a) Since about 1935, opened the sluice gates and/or shutters at the Mockeadam and thereby released large volumes of water stored therein, (b) Since about 1933, opened the sluice gates at the Mazelspoort Dam and thereby released large volumes of water stored therein together with or without the waters released from the Mockesdam as described in para. (a) hereof. (c) Since about 1932, adopted the practice of plying their municipal and mechanically propelled pleasure launches, boats, ships or craft up and down on the waters impounded at the Mazelspoort Dam for gain.

"10. As a result of the acts set out in para. 9 (a) and (b) hereof, defendants have unlawfully caused the water to be discharged on to and from plaintiff's property with greater rapidity, violence and volume, in a non-natural flow and in more concentrated form than was the case prior to the opening of the said sluice gates.

"11. The acts set out in para. 9 (c) hereof have resulted in creating waves on the waters impounded at the Mazelspoort Dam.

"12.The waters discharged as in para. 9 and 10 hereof stated and/or the waves created as in para. 11 set out, have resulted in the continued eroding, undermining, undercutting, collapse and washing away of plaintiff's property and the continuous diminution of the extent of plaintiffs land with the result that considerable damage to plaintiff's said property has been caused and further damage will result unless defendants cease to act as in para. 9 hereof stated. Up to the date of the Summons herein, plaintiff has suffered loss in the sum of Four Thousand Two Hundred and Eighty Seven Pounds Ten Shillings (£4,287 10s. 0d.) by reason of the said acts.

"13. Plaintiff has demanded of defendants that they cease the said acts complained of, but demand notwithstanding, defendants have refused and failed to do so and still refuse so to do.

"Wherefore plaintiff claims:

"1. A declaration that defendants are not entitled to open the sluice gates and/or shutters in their weirs at Mazelspoort and Mookesdam across the Modder River in the district of Bloemfontein.

"2. A declaration that defendants are not entitled to use motor launches or other mechanically propelled boats or ships or launches or craft on the waters impounded by defendants at Mazelspoort district, Bloemfontein

"3. An interdict restraining Defendants, their Agents, Servants or Workmen, from continuing: (a) to open the aforesaid sluice gates and/or shutters. (b) To use motor launches or other mechanically

Stratford, J.A.

propelled boats or ships or launches or craft on the said waters impounded at Mazelspoort aforesaid.

"4. Judgment against defendants in the sum of Four Thousand Two Hundred and Eighty-Seven Pounds Ten Shillings (£4,287 10s.) as and for damages by reason of the facts stated in para. 12 hereof. General or alternative relief and costs of suit."

The Court awarded the plaintiff £200 damages with costs of the action and granted the following interdict: "restraining the defendants from operating the sluice gates of Mockesdam and Mazelspoort dam jointly in such a manner as to bring about conditions for the escape of flood water in the Modder River which cause erosion in the banks of the river on the plaintiff's property above Mazelspoort in manner quicker, to a greater extent than for a longer time than, and over a greater area than would occur if the erosion were due to natural causes prevailing before the defendants commenced operating the sluice gates of the said dams jointly in November, 1936."

Neither party is satisfied with the order of the Provincial Division and so we have now before this Court an Appeal and a Cross-Appeal. The Municipality contends that the action should have been dismissed with costs, and the plaintiff asks for increased damages and a more definite and more comprehensive form of interdict.

For a proper understanding of these reasons a short statement of the circumstances out of which the action arose is necessary. The Municipality derives its water supply from the Modder River scroll which, under statutory powers, it erected a weir and from the water go stored it supplies the inhabitants of the town. In 1924 this weir was raised to 24 feet and 1935 to 26 feet. At this spot the Municipality became the registered owner of Lots A and B on both banks of the river and on them it has erected its waterworks this is Mazelspoort Dam. The stored water, when at crest level extends some 3 1/2 miles up the river. The plaintiff is owner of portion of the farm Klipdrift on the East bank of the river (and above Mazelspoort) and his river frontage commences about half a mile from the dam and extends for a distance of about one mile. He complains of the erosion of his river banks, caused, he alleges, by the illegal operations of the Municipality. The weir of the subsequently erected dam at Mockesdam is now 26 feet high and its purpose is and was to create a reserve supply to replenish that of Mazelspoort.

In 1924 a sluice gate was inserted in Mazelspoort dam. In

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1927 two sluice gates of timber operable only by hand were inserted at Mockesdam but these were replaced in January, 1935, by steel sluice gates mechanically controlled and worked like that at Mazelspoort. The main purpose of the installation of these sluice gates was undoubtedly to scour the river, that is to allow the current of the water to carry away mud or silt deposited during the period when the water was banked back by the dam. The water of the Modder River, as its name implies, is exceptionally muddy carrying with it minute particles of soil held in suspension which are slowly deposited when the water is stationary or slow-moving.

This process of depositing is called silting and in process of time if this deposit is not removed the whole area of the river bed covered by the retained water would gradually be "silted up" and the capacity of the dam thereby be diminished almost (but not quite) to the vanishing point. This was explained by Mr. Kanthack the expert hydraulic engineer called by the Municipality. It was primarily for the purpose of getting rid of this silt by "scouring" that sluice gates were put in at Maselspoort and subsequently at Mockesdam, though these gates also perform the useful function of regulating the flow of the river in times of flood thus preventing excessive flooding and submerging of the riparian banks. It is important to appreciate how scouring is effected. There is no dispute about the process. Taking Maselspoort as an example. In times of flood when future supply is assured and the dam is full the gate is opened. If the incoming stream of the river is less than the amount released through the gate the water level of the dam, of course, falls. But no scouring (i e., removal of deposited silt) takes place until the current of water in the storage area falls to a height of some four to six feet. It is only then this stream becomes an effective scouring instrument. It works backwards, that is, up stream, it first breaks and carries away the silt immediately touching the sill of the gate and the minute waterfall, thus created, moves up the river as the current continues to rush over this ledge and wear it away. Now Mazelspoort dam was first constructed in 1904. Without sluice gates, its capacity diminished seriously through silting and in 1914 the advice of Mr. Kanthack was sought. He recommended the insertion of a sluice gate for the purpose of getting rid of the silt by scouring. For reasons, said to be financial, his advice was not acted on until 1924 when the present gate

Stratford, J.A.

was installed and since that time scouring has taken place intermittently when conditions as to flood water were favourable. We have in evidence a table of cross-sections, kept by the Municipality, which enables us to gauge the capacity of Mazelspoort dam at various dates, and this variation in capacity, of course, corresponds with the accretion or removal of silt. Now we come to an important feature of the case. The declaration alleges unlawful operation of the sluice gate at Mazelspoort since 1933 and those of Mockesdam since 1935 and claims damages caused thereby from those dates onwards. The learned Judge, however, who delivered the judgment of the Provincial Division, says "they (that is the witnesses) are all agreed that while considerable scouring was being effected in the bed of the river, the erosion on the banks was negligible and not comparable to what has happened since 1935 and more especially since November, 1936. This evidence is uncontradicted and I accept it as correct."

Moreover, the plaintiff when giving evidence proclaimed more than once that he had no complaint against Mazelspoort, that it was the in rush of the Mockesdam water which he condemned. The Court's conclusion on this matter was not challenged in this Court, nevertheless the plaintiff still asks for an interdict against the operation of Mazelspoort's sluice gate as well as...