Johannesburg Municipality v African Realty Trust Ltd

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Wessels JA
• Judgment Date: 14 January 1927
• Court: Appellate Division

Innes, C.J.:

The African Realty Trust - called in this judgment the Company - is the ground owner of Killarney, a township laid out in 1906, within the Johannesburg municipal area. Included also in that area, and lying south of Killarney, are the townships of Parktown, Berea, Houghton Estate, and Yeoville. They occupy the higher ground. The line of the watershed runs irregularly through Yeoville and Berea, and from there the ground slopes sharply to the north. Houghton Kloof winds down the slope to the southern boundary of Killarney. The configuration is such that water from a catchment area of 615 acres finds its way into this kloof and is discharged on to Killarney. There the ground flattens out, but the slope is still to the north, and the natural flow of the water from the kloof is across the north-east corner of Killarney, which is marshy son, thence across other property to the municipal boundary more than three miles away, and so to the Jukskei River a considerable distance beyond. The upper townships have been included within the municipal area since 1902 and their development, especially during the last 20 years, has been great. Large areas of high ground have been covered with buildings; roads with macadamised or tarred surfaces and with side gutters have been constructed, and the discharge from these, as well as from the roofs and ground, has increased the volume and velocity of the run-off. Erosion has taken place at many places along the line of natural flow. Starting in the upper part of the kloof, it gradually extended, and at Killarney it occurred in the north-eastern section, where the soil is soft and marshy. The company attributes this erosion upon its property to the action of the municipality, and these proceedings have been instituted in consequence. The declaration alleges that the roads, streets, and drains constructed by the appellants since 1902 on the upper townships, and especially the cutting of the watershed in the Berea township and the diversion of, water to the Houghton catchment area - which would not naturally reach that area - have, greatly increased the volume and velocity of the water discharged upon

Innes, C.J.

and flowing over Killarney. As a result of such increase certain stands have, since 1906, been denuded of surface son, some have been injured by erosion, and others have been rendered difficult of access. Also a road maintained by the company has, it is averred, from time to time been washed away and rendered impassable. The claim is for an interdict and for substantial damages. The municipality pleads that the roads, streets, and drains complained of were constructed under statutory powers, for the public benefit, and in the execution of a public duty; that the said works have not diverted and discharged upon the company's land rain water greater in quantity and velocity than would have reached it in the ordinary course of nature; and that in any event such works have been constructed and maintained without negligence, and could not have been constructed in any other manner so as to avoid the diversion and discharge complained of. Lengthy evidence was led upon the issues thus raised. It appeared that the municipal works complained of fell under three heads: -

(a)

The streets, roads, and gutters constructed in the upper townships and within the Houghton catchment area during the period 1902 to 1914.

(b)

Three storm water drains constructed between 1914 and 1923, also within the said area. Two of these drains dealt with water on the eastern side, and the third with water on the western side of the kloof. They all discharged into the kloof above the southern boundary of Killarney.

(c)

The drains by which the storm water from an area in the Berea townships situated just beyond the south-western limits of the Houghton area, was diverted on to the latter area and discharged into the kloof.

In the result the Witwatersrand Local Division (KRAUSE,. J.) granted an interdict restraining the appellant from "discharging the rain water which would naturally flow on to and through the plaintiff's property in such a way as to cause unnecessary and greater injury to the land than it would otherwise do in the ordinary course of nature." The operation of the interdict was suspended until the 30th June, 1927. No damages were awarded. The matter is before us on appeal from that order.

Innes, C.J.

In his reasons, the learned Judge addressed himself at the outset to the defences raised in the plea. He quoted at length from English and South African decisions bearing upon the legal position of corporations and public bodies who, in the exercise of statutory powers, cause damage to others. He correctly stated that the party claiming immunity for its works must show a clear legislative intention to deprive third parties of their rights, and that thereafter the onus would be on the plaintiff to establish negligence in the exercise of the statutory powers if he wished to obtain compensation. After referring to the Ordinances, he remarked that they conferred no immunity "to construct drainage works in such a manner as to cause damage to private property by the concentration and discharge of rain water thereon." The locality of the works was left to its discretion, though the natural configuration of the area would determine the best manner of constructing them; "but in that case its rights would be regulated by the common law, and not by statute." The difficulty was not that the municipality had no power to construct these drains, "but that it had, and has, no right to concentrate and discharge the rain water on to the plaintiff's property in the manner which the evidence disclosed," even though the run-off from the catchment area did naturally flow through that property. He then examined the common law with regard to the discharge of water by an upper proprietor on to the land of a lower proprietor to its detriment. Upon that point many extracts from authorities were quoted, to which it will not be necessary to refer, because the common law in this case is common cause. The evidence was not discussed in detail, but the conclusions arrived at were stated. The learned Judge found: -

(1)

That the erosion complained of was caused by the rain water concentrated by the municipal drains and discharged with great velocity on to the company's property.

(2)

That the damage thus caused was progressive.

(3)

That the burden thrown on Killarney was much greater than would have been caused by the natural flow of the water down the valley, even taking into account the roofs and other hardened surfaces constructed in the catchment area.

(4)

That the volume of water sent down had been appreciably increased by the Berea diversion.

Innes, C.J.

In these circumstances the company was entitled to an interdict in the terms already set out. The decision, therefore, was based upon a finding that the statute authorised no interference with the common law rights of the company; the question of negligence in the exercise of the statutory powers did not arise and was not dealt with.

A decision of this controversy involves the consideration of three questions: -

(1)

The nature of the statutory powers conferred, with a view to ascertaining whether they were intended to be exercised even though they prejudiced other persons.

(2)

Whether the exercise of those powers has as a fact damaged the company.

(3)

Should the above enquiries be answered in the affirmative, whether the damage caused has been due to the negligent exercise of the, said powers.

The statute which, prior to 1912, regulated the position and rights...