Moller v South African Railways and Harbours

• Jurisdiction: South Africa
• Judge: van Heerden J
• Judgment Date: 23 May 1969
• Citation: 1969 (3) SA 374 (N)
• Hearing Date: 20 September 1968
• Court: Natal Provincial Division

van Heerden, J.:

This matter came upon exception taken by defendant to plaintiff's claim.

Plaintiff is the owner and occupier of the farm known as Moller's

van Heerden J

Farm upon which he carries on pig farming. Defendant is the South African Railways and Harbours which is being cited in terms of Act 70 of 1957.

The main claim in the particulars of claim in the summons alleges that A at a date before November, 1965 defendant, in terms of the powers conferred upon it by sec. 2 (7) bis of the aforesaid Act, caused a pipeline to be constructed for the conveyance of petroleum products from Durban to Johannesburg and ever since has managed and worked the pipeline, that the pipeline traverses portion of plaintiff's farm by virtue of servitudal rights acquired by defendant, that during the B period commencing from November, 1965 to January, 1966 petroleum products which were being pumped by defendant through the pipeline escaped from the pipeline on to the farm, that at no material time did defendant have any right to discharge petroleum products or to allow them to escape onto the farm and that in the premises the escape of the C petroleum products was a contravention of the plaintiff's rights of ownership of the farm. It is further alleged that the water supply on the farm was polluted by the petroleum products and that pigs belonging to the plaintiff died as a result of drinking the polluted water causing plaintiff to suffer loss and damage for which defendant is liable to plaintiff. Plaintiff, in the alternative, bases his claim for the D damages suffered on defendant's negligence whereof particulars are set out in the summons.

There was a request by defendant for further particulars of the main claim and in reply thereto, in so far as is relevant for purposes hereof, plaintiff states that the precise manner of the escape is peculiarly within the knowledge of the defendant but that plaintiff E presumes that the products escaped through an opening in the pipeline, that the escape from the pipeline occurred throughout the period November, 1965 to January, 1966, that the water became polluted during the first week in November, 1965, and that plaintiff first became aware on 14th January, 1966 that petroleum products had escaped and had F polluted the water supply. There was also a request for further particulars of the negligence upon which the alternative claim is based and in reply thereto plaintiff states that early in November, 1965 the staff of the Petroleum Products Pipeline division of the defendant detected that petroleum products were escaping from the pipeline at some G point or points in the vicinity of plaintiff's farm and that the escape of petroleum products onto plaintiff's farm was definitely established on 14th January, 1966, by the manager, Petroleum Products Pipeline, and/or members of his staff.

There was a notice in terms of Rule 28 that plaintiff intended to amend his particulars of claim in certain respects relating to the number of H pigs that died and to the quantum of damages but these are not material to this exception.

Defendant excepts to the main claim on the grounds that it lacks averments necessary to sustain a valid claim, in that:

'(a)

it is averred (in para. 6 thereof) merely that the petroleum 'escaped' from the pipeline; and

(b)

it is not averred that:

(i)

the defendant intentionally discharged such products onto the farm;

(ii)

or that the defendant negligently allowed them to escape onto the farm;

van Heerden J

(iii)

or that, having become aware that they were so escaping, the defendant failed to take steps to prevent their escape;

(iv)

or that defendant has unlawfully committed or omitted any act which, in law, imposes upon it any liability in respect of loss and damage alleged to have been suffered by the plaintiff'

A and accordingly claims that plaintiff's combined summons be set aside or, alternatively, that the main claim as set out in paras. 1 to 12 of the particulars of claim be struck out.

This being an argument on exception the allegation of facts as set out in the particulars of claim must be taken as established.

Sec. 2 (7) bis of Act 70 of 1957 empowers the defendant to -

B 'construct or cause to be constructed, manage, work and maintain any pipeline for the conveyance of petroleum products or other liquids, together with all works and appurtenances incidental thereto, and to determine and alter from time to time the conditions applicable to the use of such pipeline'.

The position that has thus to be accepted as established, as emerges C from the particulars of claim, is that the defendant in the exercise of its statutory powers caused the pipeline for the conveyance of petroleum products to be constructed and at all material times managed and worked it; that during this time petroleum products whilst being pumped by the defendant through the pipeline escaped therefrom and caused plaintiff to suffer damages.

D The legal position, where the exercise of statutory powers has resulted in injury to another, laid down in cases like Johannesburg Municipality v African Realty Trust Ltd., 1927 AD 163; Breede River (Robertson) Irrigation Board v Brink, 1936 AD 359; Bloemfontein Town Council v Richter, 1938 AD 195, was summed up by DE VILLIERS, J.A., E in Brink's case and quoted by WATERMEYER, J.A., in Reddy and Others v Durban Corporation, 1939 AD 293 at p. 299, as follows:

'In the unanimous judgment of this Court delivered by INNES, C.J. (in Johannesburg Municipality v African Realty Trust Ltd.) the following principles were authoritatively decided, expressly or implicitly:

F (1) Where the permissive powers conferred by a statute are expressed in general terms and there is nothing in the statute to localise their operation and they do not necessarily involve an interference with private rights, the inference would be that the Legislature intended the powers to be exercised subject to the common law rights of third persons. If, however, the nature of the work authorised is such that it may or may not interfere with private rights according to circumstances, then the person entrusted with statutory authority is entitled to show that, under the circumstances of the case, it is impossible to carry out the work without such...