Hunter v Cumnor Investments

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson J, and Van Winsen J
• Judgment Date: 14 December 1951
• Hearing Date: 26 November 1951
• Court: Cape Provincial Division

Van Winsen, J.:

Appellant hired from respondent (respectively plaintiff and defendant in the court below), four rooms on the first floor of a building known as Vlamgebou situate in Church Square, Cape Town, where, under the name of I.D. Booksellers, she conducts a bookshop. In August, 1950, appellant issued summons against respondent in the magistrate's court, Cape Town, for the sum of £189 0s. 1d. alleged to be the amount A of damage suffered by her when rain-water found its way, by reason of certain defects in the roof of the leased premises, into stock, in the form of books, liability on the ground that it was unaware of the existence of the defects in the roof of the leased premises, and that upon their existence being reported to it, immediate steps were taken to B repair the defects. The magistrate entered judgment for respondent, and ordered respondent to pay certain costs and appellant the balance of the costs. An appeal was lodged against this judgment on a ground to which I shall refer presently.

C The evidence disclosed that appellant was a monthly tenant of the respondent occupying four rooms on the first floor. Apart from the ground floor the building consists of two storeys, the whole of the second floor being occupied at the time of the happening of the events relating to this case, by the Voortrekker Motorklub. Vlamgebou abuts on D the one side against the wall of the Civil Service Club, and where the roof of the former building abuts against the wall of the Club there is a flashing. The roof of Vlamgebou is a slate roof - which is old - and from the ridge (shown A - B in the diagram handed in at the trial) it slopes downwards in the direction of Church Square, ending in a E parapet, at the foot of which is a box gutter. This gutter is so inclined as to discharge the water caught up in it into a hopper box which in turn leads to a drainpipe running down the front wall of Vlamgebou into Church Square close to that side of Vlamgebou which abuts on to the Civil Service Club.

F It appears that on the 5th of July, 1950, appellant received a certain report from a member of the staff of the Voortrekker Motorklub, and on going up to investigate found that a room on the second floor immediately above the room in which certain of her books were stored, G had been evacuated by the Voortrekker Motorklub, and on the floor were a lot of basins and cloths designed to catch water which was coming through the ceiling and running down the walls. The room into which the water was leaking was situate in that part of Vlamgebou abutting upon the Civil Service Club.

H Appellant became aware of the above position at 5.30 p.m. on the 5th, and on the following day she rang Mr. Morse, respondent's agent, informing him that

'it was leaking badly upstairs, would he do something to repair it because I had valuable stuff in my rooms.'

Van Winsen J

She followed this up on the same day with a confirmatory letter. In reply she received from Morse a letter dated 7th July, 1950, saying that respondent had

'already instructed a roofing concern to repair the roof of Vlamgebou where it was leaking into the offices of the Voortrekker Motorklub. These instructions were given four days before your letter but on account of the heavy rain nothing could be done until the weather A subsided, whereupon they will commence immediately to try and stop the leaks.'

Morse stated in his evidence that having received a complaint about the roof on the 3rd of July, he got into touch with a Mr. White, a building contractor and roofing expert, and instructed him to repair the roof. B White says he was, owing to the rain, unable to do anything about repairing the roof until the 7th of July, when he went round with his workmen and went up on to the roof. He says he found a leak in the flashing where the roof of the Vlamgebou abuts the wall of the Civil Service Club (marked (1) in the diagram). He also found some loose C broken slates, some at a spot near where the flashing was found to be defective (marked (2) in the diagram), and others at a spot marked (3) on the diagram which is on another slope of the roof which inclines towards Parliament Street. He says that he could observe that the flashing leak was the cause of the water coming down the wall of the D room on the second floor, i.e. the room in which appellant had seen the basins and cloths on the afternoon of the 5th of July. White says that by doing the work detailed above he had repaired the defects in the roof causing the leaks.

E Thereafter it would seem that no rain fell until Monday, the 10th of July. On that day appellant was busy with stock-taking and did not leave her office until 11.30 p.m., at which time there were no signs of any leaking in the premises leased to her. On her return to the premises on 8.30 a.m. the next morning, she found big pools of water on the floor of F the last room of the leased premises, i.e., that which abuts on the Civil Service Club, and 'between the last and the room before that I found water on all the books and water still rolling down the walls'. The water had got on to the books stacked on shelves against the walls in the room nearest the Civil Service Club and damaged many of them. G Appellant rang up Morse immediately and White was instructed by Morse to take immediate steps to rectify the position. The latter went on to the roof and found water lying on the sloping roof in the angle formed by the roof and parapet. This pool of water was some 8 inches deep at H the one end tapering off to nothing at the other, and lay on that part of the roof...