Johannesburg City Council v Vucinovich

• Jurisdiction: South Africa
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA, Feetham JA
• Judgment Date: 03 May 1940
• Citation: 1940 AD 365
• Court: Appellate Division

Feetham, J.A.:

This is an appeal from a decision of the Witwatersrand Local Division in an action brought against the City Council of Johannesburg by an owner of land adjoining the Council's sewage farm situate on Klipspruit 8 (formerly 58), in

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which the plaintiff alleged that injury had been and was still being caused to his property by the Council's sewage disposal operations, and claimed an interdict and damages, and was Successful in obtaining both forms of relief For an outline of the pleadings and a clear summary of the main facts of the case I refer to the introductory portion of the judgment of RAMSBOTTOM, J., which will I assume be included, as prefatory matter, in the report of this case The portion of the judgment to which I refer concludes with the statement of "Facts agreed between the parties", which was put in at a late stage in the hearing before the trial court, after the plaintiff had closed his case, and much of the defendant's evidence had been led, and is quoted in extenso by the learned Judge As the case was presented to this Court on appeal the defendant now relies solely on defence (b) as stated by the learned Judge - namely, the contention "that the defendant was, in all the circumstances of the case, not liable to the plaintiff for the damage suffered because of the immunity conferred by sec 161 of Ordinance 11 of 1926" (the Local Government Ordinance, 1926, of the Transvaal) The sole question to be decided is, therefore, whether that section should be so interpreted as to relieve the defendant from any liability for the injury admittedly caused to the plaintiff's property by the percolation into the plaintiff's land of underground water resulting from the defendant's sewage disposal operations as conducted on Klipspruit 8.

The section in question reads as follows: "161 The Council may maintain and carry on any sewage farm or sewage disposal works established at the commencement of this Ordinance, the establishment of which has been allowed by an order made under section thirty of the Municipalities' Powers of Expropriation Ordinance, 1903, and may establish subject to the consent of the Administrator and maintain and carry on any such sewage farms or sewage disposal works either within or subject to the provisions of sections one hundred and sixty-two, one hundred and sixty-three and one hundred and sixty-four, outside the municipality, as may be necessary or advisable for the requirements of the municipality and may either lease any lands used as a sewage farm to tenants or may farm the same and dispose of the produce thereof, and neither the council nor any other person shall he liable for any nuisance or damage which is the inevitable consequence of the proper and ordinary conduct of any sewage farm or sewage disposal works

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established, maintained, or carried on under the provisions of this section."

This section is a reproduction in identical terms of sec 161 of the Local Government Ordinance, 1912, of the Transvaal (No 9 of 1912), except for the insertion after the word "nuisance" of the words "or damage", which do not occur in the 1912 Ordinance.

It is, therefore, desirable in the first instance, for the purpose of considering the effect of sec 161, as now contained in the 1926 Ordinance, to examine briefly the state of the law on the subject with which the section deals as existing immediately prior to the enactment of the 1912 Ordinance The judgment of BRISTOWE, J., in the case of Herrington v Johannesburg Municipality (1909, T.H 179) may usefully be referred to in this connection In that case the plaintiff, the owner and occupier of land in Nancefield Township, abutting on a road which separated the northern boundary of Nancefield from the southern boundary of the defendant's farm Klipspruit, complained of the nuisance arising from the smell of the sewage deposited by the defendant on Klipspruit The defendant denied the nuisance, and alleged, in the alternative, that the works complained of were carried out under statutory authority with skill and caution, and that, if there were a nuisance, it was the inevitable result of the user of the farm for sewage purposes The Court held on the evidence that the smell complained of had been sufficiently continuous and offensive to cause a nuisance, and that the defendant had no statutory authority to cause a nuisance, and that the plaintiff was, therefore, entitled to an interdict Before arriving at his conclusion that the defence of statutory authority failed the learned Judge summarised the relevant statutory provisions conferring powers an the defendant as follows:

"The statutory powers of the defendant council, so far as material to this action, are derived partly from the Johannesburg Municipal Ordinance, 1906, amending and partially re-enacting the Johannesburg Municipality Amendment Proclamation, 1902, and partly from the Municipalities Powers of Expropriation Ordinance, 1903 By sec 24 of the Municipal Ordinance, which is almost identical in language with sec 4 of the Proclamation, the council is empowered to establish and maintain sanitary services for the removal and destruction of or otherwise dealing with night-soil, slops and other refuse, and to erect, construct, equip and carry out sewage or drainage works within the municipality or beyond its

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limits' The Expropriation Ordinance is a general Statute applying to all municipalities It is divided into two parts The first provides machinery for the expropriation of land (whether within or without the municipal area) for any purpose (including sewage works, sewage farms and drainage works) which the municipality, desiring to expropriate, may be authorised to carry out And the second (comprising secs 25 to 31) contains various provisions ancillary to any powers of sewage disposal which a municipality may otherwise possess Sec 25 confers various powers, including (sub-sec (d)) power within or (subject to secs 28 and 29) without the limits of the municipality to 'construct any works for the purpose of receiving, storing, disinfecting or otherwise disposing of any sewage or drainage.' Sec 26 is a vesting section, which does not require notice Sec 27 enables a municipality to deal with 'any lands held . . . for the purpose of receiving, storing, disinfecting or distributing sewage or drainage' by (1) leasing them for agricultural purposes, (2) contracting with some person to take the produce from them, or (3) farming them and disposing of the produce But these powers are made subject to the restriction 'that in dealing with land for any of the above purposes provision shall be made for effectually disposing of all drainage brought to such land without creating a nuisance' Finally, secs 28, 29 and 30 restrict the construction of sewage works outside the municipal area in the manner to which I have already called attention."

After referring to various English decisions bearing on the construction of Statutes conferring powers to establish and carry on public undertakings, the learned Judge stated his view as to the effect of the defendant's statutory powers as follows:-

"The sewage disposal powers given by the Johannesburg Municipal Ordinance, 1906, were under consideration in Tobiansky v Johannesburg Town Council (1907, T.S at p 153), and it was held that they afforded no protection against an action, unless possibly it could be proved (as was not done in that case, and has not been done here) that no site was procurable where a nuisance would not be created In the present case, however, reliance was placed on secs 28, 29 and 30 of the Expropriation Ordinance, while the plaintiff's counsel pointed to sec 27 of the same Statute Now sec 27 of this Ordinance is taken word for word from sec 29, and secs 28, 29 and 30 (with the substitution of Lieutenant-Governor for Local Government Board) from secs 32, 33 and 34 of the Eng-

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lish Public Health Act, 1875 It has never, so far as I know, been suggested that these sections of the Public Health Act authorise a nuisance Such a position would be rendered untenable in England by the proviso prohibiting a nuisance attached to the section (see 27) of the English Statute which gives the general powers of sewage disposal, and by sub-sec 1 (of the same section) from which sub-sec (d) of sec 25 of the Transvaal Ordinance is borrowed If sec 25 contained a similar proviso, the position contended for by the defendants in the present case would be unarguable also It is only the absence of that proviso which renders their contention possible But the significance of the omission seems to be greatly diminished by the fact that a proviso of similar import is inserted in sec 27 No doubt that proviso only restricts the special powers of that section But what reason can there be for prohibiting a nuisance when the land on which sewage is deposited is farmed, if it is not to be prohibited when it is not farmed? I doubt whether the presence of the proviso in sec 27 is reasonably explicable except on the assumption that the Legislature did not intend to authorise a nuisance at all And if I am right in saying that a clear intention is required to take away the rights of third parties, then this point (without going any further) would seem to be an answer to the defendants' argument But even if secs 28, 29 and 30 are considered apart from sec 27, I do not think there is anything in them to entitle the defendants to cause a nuisance It may be said that they provide machinery for determining the precise place at which the sewage shall be deposited, and in this way supply exactly what was wanting in Tobiansky v Johannesburg Town Council But machinery is equally provided if the selection of the locality is left to the town council And it makes no difference in principle whether the machinery is a resolution of the...