Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd and Another

• Jurisdiction: South Africa
• Citation: 1997 (1) SA 157 (A)

Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd and Another
1997 (1) SA 157 (A)

1997 (1) SA p157

Citation	1997 (1) SA 157 (A)
Case No	371/93
Court	Appellate Division
Judge	Kumleben JA, Van Heerden JA, Vivier JA, Harms JA and Scott JA
Heard	August 26, 1996; August 27, 1996; August 28, 1996
Judgment	September 20, 1996
Counsel	D J B Osborn SC (with him C M Eloff) for the appellants.; P A Solomon SC (with him D M Ettlinger) for the first respondent; C D A Loxton SC (with him T Plewman) for the second respondent

Flynote : Sleutelwoorde B

Negligence — Liability for — For negligent exercise of statutory powers — Statutory immunity — At least two requirements to be satisfied: (a) that reasonably practicable measures to have been decided upon for C carrying out of work and (b) that work executed without negligence — Latter as significant as former — Statutory authority impliedly and within limits permitting infringement of rights not sanctioning negligent conduct causing harm.

D Negligence — What constitutes — Foreseeability — Reiterated that foreseeability of precise kind or magnitude of harm not required and test as to foreseeability to be applied as at time of act or omission — Appellant having constructed storm-water canal system which overflowed during storm, causing extensive damage to expensive goods stored in respondent's warehouse basement — Warehouse constructed after system — Appellant having E been negligent in construction of system — Appellant denying that damage reasonably foreseeable, contending that damage would have ensued even had system not been constructed — Argument fallacious — In determining foreseeability, Court having to postulate situation had there been no negligence (in casu, had design mistake not F been made) — In that event old system would not have remained, but would have been replaced by new system with discharge rate as planned and adequate, resulting in no flooding — In any event, had old system remained, likely as not that risk of flooding would have been taken into account and precautions to avert flooding taken in design of warehouse — Damage foreseeable.

Headnote : Kopnota

G The first respondent ('Tedelex') sued the appellant ('the JCC') for damages in a Local Division. The JCC joined the second respondent ('Tedelex Properties') as a third party. It appeared that the JCC in 1978 appointed a construction company to construct a drainage system consisting of a broad, open concrete canal which converted into a culvert so as to cross under the surface of a road through an existing bridge. The culvert was narrowed at a H certain point in order to pass through the bridge. Construction of the system began early in 1980 and was completed in 1981. Tedelex Properties were the owners of a building, completed in 1983, which was situated next to the canal and close to the inlet to the culvert. The plans for the building were passed by the JCC in 1981. The building was leased to Tedelex, who used the basement as a store. In December 1986 a heavy downpour I caused the drainage system to overflow at the inlet. As a result turbulent water entered the basement of the Tedelex building, damaging some of the property that was being stored there. The incapacity of the new system to cope with the storm water was primarily due to the constriction of the water as it entered the narrow section of the culvert. Had the old system with its open canal still existed, the overflow would not have reached the Tedelex property. J

1997 (1) SA p158

A The JCC's main defence to Tedelex's claim for damages was a denial of negligence on the ground that the conduct complained of was authorised by statute. The JCC also relied on lack of causation, arguing that even if the design of the new system caused the flooding, such flooding would in any event have occurred had the old system remained in place. There was, in addition, a plea of contributory negligence to the effect that the risk of B flooding ought to have been foreseen when Tedelex took the decision to build, and that Tedelex or Tedelex Properties or the latter's architect ought to have foreseen that the new system would not have been able to cope with a storm such as the one of December 1986. During the course of the trial the JCC amended its plea to rely also on what it termed an exclusionary clause. This clause formed part of Tedelex's application for the approval C by the JCC of the plans for the Tedelex building. Note 5 of the notes to the application form stated that the JCC would not accept responsibility 'for any damage which might be caused to your property by storm water or by infiltration of water from any source through cellar walls'. It was submitted on the strength of this note that Tedelex had contractually renounced its right to recover delictual damages from the JCC.

D On appeal the Appellate Division made the following preliminary points: that any interference increasing the natural flow of water over the property of another was prima facie an infringement of the right of undisturbed possession which on the face of it attracted liability; that apart from express authorisation, an incursion could be explicitly authorised by statute, but only to the extent necessary for the due exercise of the right conferred or duty E imposed; and that the legal principle in this regard was that there were at least two requirements to be satisfied before statutory immunity for harm caused could be successfully claimed: (a) reasonably practical measures must have been decided upon for the carrying out of the necessary works, and (b) the work must have been executed without negligence. The latter was as significant as the former: statutory authority that impliedly, and within limits, F permitted an infringement of rights did not sanction negligent conduct causing harm. (At 164D-165G/H, paraphrased.) The Court was prepared to assume in favour of the JCC that the onus was upon Tedelex to prove that the bounds of the statutory authority were transgressed, ie to prove that one or both of the requirements for immunity were not satisfied. (At 166C-D.)

As to the cause of action pleaded, it was conceded by counsel for the JCC that the JCC, through the employees G responsible, had been negligent in failing to make provision for any enlargement of the bridge the culvert had to pass through. It was however submitted that this amounted to 'negligence in the air' since, though harm of some kind had been reasonably foreseeable, the actual damage caused had not. The Court rejected this argument, pointing out that no such refinement of liability for damage caused was recognised in our law: the precise nature or H extent of the harm caused need not have been foreseen. (At 167J-168B.) A further contention by the JCC that, because the consent required in terms of the Johannesburg Town Planning Scheme for the storing of goods in basements had not been granted, the damage to the goods placed there had not been foreseeable was also rejected as the test of foreseeability had to be applied as at the time of the act or omission, and at that stage I there had been no Tedelex building and no one could have had the prescience to have known where the building would be erected, whether it would have had a basement and, if so, whether permission to store goods in it would have been sought or granted. (At 168D/E-E/F.)

The Court pointed out that although it could be assumed that the JCC had intended reasonably practicable measures to avoid flood damage by designing a system with the necessary capacity (requirement (a)), it had failed to J

1997 (1) SA p159

A ensure that the work was properly, and not negligently, done. The defence of statutory authority therefore failed in respect of requirement (b), so that the two elements of delictual liability in terms of the lex Aquilia - wrongfulness and fault - were proved. (At 168E/F-G.) Thus, though the evidence adduced to show that, when the new system was designed and constructed, certain circumstances led to the decision not to enlarge the bridge, B and that evidence would have been relevant if the JCC had in fact decided at the outset not to enlarge the bridge so as to restrict the flow of water - viz if the evidence had been led to show that requirement (a) had been complied with - such evidence could not be relevant to a result not intended. The truth of the matter was that this evidence was adduced in an ex post facto attempt to explain 'an inexcusable mistake', the construction of the C canal system with an inadequate discharge range. The requirements of wrongfulness and negligence were thus proved. (At 168G/H-I and 170H/I-I.)

As to the issue of causation, the Court held that the JCC defence (which amounted to that 'it would have happened anyway') failed on two scores: First, when determining foreseeability what had to be postulated was the situation had there been no negligence - in the instant case, had the design mistake not been made. In that D event the old system would not have remained - the new system would have been in place with a discharge rate as planned and adequate. Second, had the old system not been replaced when the Tedelex building came to be designed and built, it was as likely as not that a risk of flooding would have been taken into account and a different building designed or precautions taken on the Tedelex property to drain off any anticipated overflow from the open canal. (At 171H/I-172A/B.) E

As to the plea of contributory negligence, the Court pointed out that negligence on anyone's behalf had to be related to the facts of the particular case, viz that Tedelex, Tedelex Properties or the latter's architect ought to have foreseen that the new canal system would not have been able to cope with a storm of the intensity...