Dias v Petropulos and Another

• Jurisdiction: South Africa
• Court: Western Cape Division, Cape Town
• Judge: Bozalek J
• Judgment Date: 30 July 2018
• Citation: 2018 (6) SA 149 (WCC)
• Hearing Date: 30 July 2018
• Docket Number: 22639/2009
• Counsel: RWF MacWilliam SC for the plaintiff. JG Dickerson SC (with M Steenkamp) for the first defendant. L Wessels for the second defendant. M Seale SC for the first third party. S Olivier SC for the sixth third party.

Bozalek J:

[1] C Commencing in October 2009, the plaintiff, in his capacity as the owner of a residential dwelling situated at 32 Theresa Avenue, Camps Bay, instituted a damages action against his neighbours, the first and second defendants, for damage caused to his property. I shall also refer to the plaintiff's property as 'the Dias property'. The plaintiff's case was that the damage to his property was caused by the mobilisation in June D 2008 of the scree mountain slope on which it was located. That slope mobilisation, the plaintiff's case proceeded, was caused through breaches by the defendants of the duty of lateral support they owed to the Dias property. The first defendant, Mrs Marina Petropulos, is the owner of one of the neighbouring properties, namely, 15 Barbara Road, Camps E Bay. I shall also refer to that property, which prior to 2008 was an unimproved erf, as 'the Naumann property', which is the surname of her husband. Mr Naumann is a builder and was responsible for all excavation work and building on the Naumann property which played a critical role in this matter. I shall also refer to the property which was at all material times owned by the second defendant, Mr Dawid Venter, as 'the F Venter property'.

[2] Thereafter, at the instance of either the first or second defendant or at the instance of a third party, six third parties were joined. The first of them, Nik Moroff and Associates CC (Moroff), is a professional structural-engineering practice which was joined in the action by the first G defendant. She alleged that Moroff (or its predecessor) was appointed as the project engineer for the works on the Naumann property and that it was negligent in carrying out its mandate. Moroff pleaded to the plaintiff's particulars of claim and first defendant's third-party notice and participated fully in the trial, disputing the merits of the plaintiff's claim.

[3] H The plaintiff's claim was also opposed by the first and second defendants. At an early stage in the trial, however, the second defendant withdrew therefrom after having apparently reached a settlement agreement with the plaintiff. I shall return to this issue later.

The I cases made by the respective parties

[4] The mobilisation of the slope, which is at the heart of this matter and which occurred around July 2008, affected five neighbouring erven on the steeply sloping mountainside of Camps Bay. These properties formed a parcel of land bound between Theresa Avenue, on the upper part of the mountainside, and Barbara Road, on the lower mountainside. J Apart from the Dias, Naumann and Venter properties, other affected

Bozalek J

properties were the Babrow property and the Stylemark property. A The Babrow property is also located on Theresa Avenue on the upper part of the mountainside. The Stylemark property borders on the Venter property on the Sea Point side, which in turn borders on the Naumann property. All of these last three properties abut onto Barbara Road. Only the Babrow, Naumann and Venter properties border on the Dias property. The Naumann property lies directly below the Dias property, B as does, but to a lesser extent, the Venter property.

[5] In the months preceding June 2008, excavations took place on both the Venter and Naumann properties. In the case of the Naumann property, these were preparatory to the building of a residential dwelling C on what had previously been an undeveloped erf. In the case of the Venter property, the excavation preceded the building of a new garage.

[6] The core of the plaintiff's case was pleaded in paras 6 – 8 of its particulars of claim as follows:

'6.

In carrying out the aforementioned excavation of the First Defendant's D property, the First Defendant deprived the plaintiff's property of the lateral support to which the Plaintiff is entitled.

7.

In carrying out the aforementioned excavation on the Second Defendant's property, the Second Defendant deprived the plaintiff's property of the lateral support to which the Plaintiff is entitled.

8.

In consequence thereof and in or about June 2008, the scree slope E on which the Plaintiff's property and residence [are] situated and constructed, mobilised and subsided through the mechanism of —

8.1

a shallow slip circle with uplift at the toe, resulting in vertical upward bulging of the ground surface between Barbara Road and the structures facing onto it; and

8.2

lateral movement towards Barbara Road.' F

[7] Paragraph 9 read as follows:

'The aforesaid mobilisation of the slope and subsidence caused extensive damage to the residence and other improvements on the plaintiff's property, more particularly in that: —

9.1

It resulted in the block retaining wall along the boundary of the property being undermined and caused it to collapse; G

9.2

It caused lateral movement and subsidence of the garden area up to the Western façade of the main house;

9.3

It caused the swimming pool to settle and translate laterally and to become detached from the main house, with the result that the swimming pool is unusable and requires demolition and rebuilding; H

9.4

It caused damage to the main house in the form of cracking and movement of walls and tiles, cracking of floor slabs, movement of door and window openings and cracking of driveway and boundary retaining wall on Theresa Avenue;

9.5

It caused the entire ground area of plaintiff's property to subside, which subsidence is continuing with continuing structural damages aforesaid.' I

[8] In para 10, the plaintiff avers that the mobilisation of the slope and the subsidence and the damage to his property were caused —

'10.1

jointly by the excavation on the first and second defendants' property; J

Bozalek J

10.2

A alternatively, partially by the excavation on the first defendant's property and partially by the excavation on the second defendant's property'.

In the further alternative it was averred that these consequences were caused by the excavation on the first defendant's property or the second B defendant's property alone.

[9] The first defendant pleaded that it owed the plaintiff no duty of lateral support for one or more of the following reasons: firstly, the plaintiff's property was previously excavated, developed and built up and was no longer in its natural state; secondly, the stability of the plaintiff's C property and the land on which it was situated were compromised by its development or that of neighbouring properties. In the alternative, the first defendant pleaded that in the excavation or the development of its property it did not deprive the plaintiff's property of any lateral support to which it was entitled. In the further alternative, ie in the event of it being found that its excavation deprived the plaintiff's property of lateral D support to which it was entitled, the first defendant denied that it incurred any liability by virtue of the plaintiff's following conduct —

1.

the plaintiff consented to the first defendant's excavation and thereby waived any right of lateral support it might otherwise have had;

2.

E the plaintiff thereby consented to the risk of harm resulting from the first defendant's excavation;

3.

any damage sustained was —

3.1

not caused as the result of any breach of legal duty or wrongful conduct on the part of the first defendant;

3.2

F was not foreseeable or was too remote to attract liability;

3.3

was caused due to the failure on the part of the plaintiff to properly or duly mitigate his damages.

[10] The second defendant similarly denied liability for any damages suffered by the plaintiff and pleaded that the slope mobilisation was G caused exclusively by the excavation effected by the first defendant on her property.

The separation of issues

[11] The first defendant brought an application in terms of rule 33(4) for H certain issues to be separated out and heard first. The terms of the separation were contested by the plaintiff. On 13 May 2016 Saldanha J made an order in the following terms:

'1.

There shall be a separation of issues in terms of Rule 33(4) in terms of which the following issues, namely, those arising from paras 1 – 8 of the plaintiff's particulars of claim be determined in I initio:

(a)

Whether a common law duty to provide lateral support to plaintiff's property was owed by each of the first and second defendants properties;

(b)

Whether excavations carried out on each of the defendant's properties in or about May or June 2008 breached this duty of J lateral support;

Bozalek J

(c)

If so, whether as a result of the plaintiff's property being so A deprived of such lateral support by the excavations on one or both of the defendant's properties, the scree slope on which plaintiff's property and residence were situated and constructed mobilised and subsided in or about June 2008.

The further proceedings in relation to all the remaining issues B in the principal action, the first defendant's counterclaim and all the third parties proceedings are stayed and shall stand over for later determination.

2.

Notwithstanding that the issues arising inter alia from paragraphs 9 of the plaintiff's particulars of claim have been ordered to stand over for later determination and shall not be determined at the C initial hearing, this shall not preclude the leading of evidence at the initial hearing regarding the features of damage to plaintiff's and any other properties which is relevant to the determination of any issues in (a), (b) or (c).

3.

The cost of the application stand over for determination by the trial court.'

The course of the litigation D

[12] Over a period of some six and a half years the parties exchanged pleadings, including a claim in reconvention by the first...