Germiston City Council v Chubb & Sons Lock and Safe Co (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Schreiner JA, Fagan JA, De Beer JA, Reynolds JA and Beyers JA
• Judgment Date: 22 November 1956
• Citation: 1957 (1) SA 312 (A)
• Court: Appellate Division

Schreiner, J.A.:

In the year 1946 the appellant, which I shall call 'the municipality', established the industrial township of Wadeville (absit omen) on land belonging to it. In the following year the municipality began to make roads and drains in the township, the work being

Schreiner JA

done in sections. In one portion of the township Rendell Road, running approximately east and west, intersects Nagington Road, which runs in a curve but generally from north to south. Some distance to the south of Rendell Road Esander Road meets Nagington Road from the east but does not intersect it. Still further to the south Nagington Road is A intersected by Osborne Road. Nagington Road has a tarred surface edged with a row of stones six inches high, called in the evidence a haunching. The exact date of the completion of Nagington Road is in dispute; the only direct evidence is that it took place shortly before the 19th July, 1948. The general slope of the ground in this part of the B township is downwards from west to east. Two adjoining stands, numbered 105 and 106, face Nagington Road on its eastern or lower side. On that side only one stand, 107, lies between stand 106 and Rendell Road to the north, but there are a number of stands between stand 105 and Esander Road to the south. In August 1948 the municipality sold stands 105 and 106 to Leon Motors, which firm in 1949 caused a factory C building to be erected thereon. The respondent, which I shall call 'the company', acquired the two stands from Leon Motors. taking transfer in January 1952 and entering into occupation at the end of that year. It carried on in the factory the business of manufacturing safes, locks and security and strong room equipment. The factory, which is made of corrugated iron, lies on the eastern half of the stands; it is D rectangular, with its longer sides running north and south. In March 1953 an administrative building, of brick, was erected on the western half of the stands, close to Nagington Road.

On the night of the 11th/12th October, 1953, there was a heavy fall of rain in the area and a quantity of muddy water entered the factory building through spaces under certain large doors on its western side. E The floor of the factory was covered to a depth of about four inches by silt-bearing water, and damage was thereby done to the machinery and stock. The company sued the municipality in the Witwatersrand Local Division for the loss incurred by it, claiming that the water which caused the damage would not have reached the factory if the ground to F the west had remained in its natural state; this alien water, it was contended, was diverted on to the company's property as a result of the construction of Nagington Road. The company alleged that the municipality had been negligent and in particular had negligently failed to protect the company's property by suitable drainage. RUMPFF, J., G awarded the company £4,696. 13s. 2d. and costs, and the municipality now appeals to this Court.

The pleadings, with the particulars thereto, are lengthy and it is unnecessary to do more than summarise them. The company's main claim rested upon an allegation that the municipality had wrongfully and unlawfully constructed and graded Nagington Road in such a way as to discharge upon stands 105 and 106 stormwater which would not otherwise H have reached them and to concentrate and increase the natural flow on to and over those stands. The municipality in the first place denied that it had diverted on to the stands water that would not naturally have reached them and also denied that if any such water was so diverted it caused the damage complained of. Secondly, the municipality relied upon the allegation that, having laid out the township, it constructed

Schreiner JA

Nagington Road before it sold the stands to Leon Motors; in these circumstances, so it was contended, it was not in law liable for any damage that might have been caused to the company, whatever faults there A might be in the construction or drainage of Nagington Road. In the third place, the municipality relied upon the statutory authority to make roads and streets which is granted to it under the Transvaal Local Government Ordinance, 1939. This third defence the company sought to meet by alleging that the municipality had been negligent in that it had failed to provide any or adequate stormwater drainage, the provision of which was reasonably practicable.

B In the alternative, the company based its claim on an allegation that the municipality

'negligently failed to provide and/or maintain any adequate drainage in respect of water flowing onto and falling upon'

Nagington Road. It particularised the negligence by alleging that in C 1948 the municipality made an earth drain eastwards from Nagington Road along the northern boundary of stand 104, which adjoins stand 105 on the south; and that in 1952 the owner of stand 104 with the knowledge and consent of the municipality obstructed the drain by the erection of a building at the north-west corner of stand 104. Alternatively, the company alleged that the municipality was negligent in failing to provide alternative drainage after the earth drain was obstructed.

D The municipality contended that the alternative claim disclosed no cause of action on the ground that, if it had not rendered itself liable under the main claim, it would not be liable for a mere failure to carry out the permissive power of making drains. It also denied that it had been negligent, and said further that the company had itself been the E author of any loss caused to it by flooding from Nagington Road, in that (a) it, or someone acting with its knowledge and consent, had filled in an earth drain which the municipality had made on the eastern pavement of Nagington Road to lead water from that road into the above-mentioned earth drain running along the boundary between stands 104 and 105; and (b) it lowered or allowed to be lowered the surface of F the roadway which goes over the astern pavement of Nagington Road through a gate, so as to make a spillway into its property for water in that road. There were finally a number of issues relating to the items making up the claim for damages.

The appeal clearly involves questions of law and fact. Some of the G questions of fact may conveniently be discussed when the law has been considered, but certain basic issues of fact can be dealt with more satisfactorily at once. As is indicated above the municipality contends that the company failed to prove (a) that alien water entered the factory, and (b) that, if it did, it was the cause of the damage.

H The company relied largely on the evidence of Mr. Scott, a very highly qualified and experienced consulting engineer. He had prepared a plan of the locality and gave evidence that it correctly showed the flow lines of water over the area in question and that it also correctly showed that the construction of Nagington Road has increased the area draining to the western boundary of stands 105 and 106 from about 4 1/3 acres to 271/2 acres. Subject to a query regarding the effect produced by a certain strip of railway line, into which it is unnecessary to enter,

Schreiner JA

counsel for the...