Pietermaritzburg and District Council for the Care of the Aged v Redlands Development Projects (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2018 (4) SA 113 (SCA)

Pietermaritzburg and District Council for the Care of the Aged v Redlands Development Projects (Pty) Ltd and Others
2018 (4) SA 113 (SCA)

2018 (4) SA p113

Citation	2018 (4) SA 113 (SCA)
Case No	184/17; [2018] ZASCA 51
Court	Supreme Court of Appeal
Judge	Navsa JA, Wallis JA, Willis JA, Mathopo JA and Pillay AJA
Heard	March 29, 2018
Judgment	March 29, 2018
Counsel	AJ Dickson SC for the appelant.; AJ Troskie SC (with PJ Wallis) for the respondents.

Flynote : Sleutelwoorde

Water — Actio aquae pluviae arcendae — Upper property discharging water into municipality's waterworks under municipality's direction and water fed by C municipality's pipes into lower property's canal — Lower property seeking to interdict supra-natural flow of water from upper property.

Headnote : Kopnota

The properties in this case were on a hill. The highest were those comprising Redlands Estate, whose owners were the respondents; beneath Redlands was a road owned by the municipality; below it two further properties; and D then the land owned by Padca. [*]

Rainwater on Redlands was combined and diverted into a catchment pit on the municipality's road, which was fed also by the gutter of another municipal road.

From the pit the water flowed by municipal pipe across the next two properties, and to a canalised watercourse on Padca's property. E

Here, Padca sought to interdict the supra-natural flow of water from Redlands onto its property. It based its claim on the actio aquae pluviae arcendae; alternatively, in neighbour law.

The High Court dismissed the action, and Padca appealed to the Supreme Court of Appeal.

It, per Pillay AJA, likewise dismissed the appeal. This on the basis that the F manner of collection on Redlands, and its discharge, had been directed by the municipality. (See [21] – [24] and [27] – [28].)

The concurring judgment of Wallis JA raised, but left open:

•

whether the actio was available in respect of urban properties (see [30]);

•

whether the properties concerned need be contiguous (see [33]); and

•

whether wrongfulness was an element of a neighbour-law claim (see [35]). G

Cases cited

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): referred to

Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others 2008 (3) SA 134 (SCA): referred to H

Barklie v Bridle 1956 (2) SA 103 (SR): dictum at 109 – 110 applied

Benoni Town Council v Meyer and Others 1961 (3) SA 316 (W): referred to

Bishop v Humphries 1919 WLD 13: referred to

Cape Town Council v Benning 1917 AD 315: referred to

De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D): referred to I

De Villiers v Galloway 1943 AD 439: referred to

Green v Borstel 1940 (2) PH M89 (W): referred to

Halliwell v Johannesburg Municipality 1912 AD 659: referred to J

2018 (4) SA p114

New A Heriot Gold Mining Company Ltd v Union Government (Minister of Railways and Harbours) 1916 AD 415: referred to

Pappalardo v Hau 2010 (2) SA 451 (SCA): dictum in paras [11] – [12] applied

Pietermaritzburg and District Council for the Care of the Aged v Redlands Development Projects (Pty) Ltd and Others [2017] ZAKZPHC 4: confirmed B on appeal

Redelinghuis v Bazzoni 1976 (1) SA 110 (T): referred to

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6; [2005] ZASCA 73): referred to

Trustees, C Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) ([2007] 1 All SA 240; [2005] ZASCA 109): referred to

Williams v Harris 1998 (3) SA 970 (SCA): dictum at 981E applied.

Case Information

AJ Dickson SC for the appellant.

AJ Troskie SC (with PJ Wallis) for the respondents.

An D appeal from the KwaZulu-Natal Division of the High Court, Pietermaritzburg (Kruger J).

Order

The appeal is dismissed with costs, including the costs of two counsel.

Judgment

Pillay AJA E (Navsa JA, Willis JA and Mathopo JA concurring):

[1] The appellant, the Pietermaritzburg and District Council for the Care of the Aged (Padca), a voluntary association, appeals against the judgment of the KwaZulu-Natal Division of the High Court, Pietermaritzburg. The trial court dismissed with costs Padca's action for F an interdict to 'stop the run-off of water from the properties that form part of the Redlands Estate . . . in excess of the natural flow when . . . Redlands Estate was in a pristine condition'. The trial judge (Kruger J) gave leave to appeal to this court.

[2] Redlands Development Projects (Pty) Ltd (Redlands) is the first of 32 respondents opposing the appeal. Redlands and the second respondent, G Mr Hesse, developed the property that is known as the Redlands Estate. Apart from the fifth respondent, Redlands Estate Homeowners Association, the remaining respondents are either owners of property on Redlands Estate or bodies corporate representing the owners. All the property owners are members of the association, which owns and H maintains the common services, including roads and stormwater systems.

[3] The appellant based its action on the actio aquae pluviae arcendae (actio). [1] To determine whether Padca meets the requirements of the actio, I begin by outlining the topography of the area and the relative I location of the properties.

2018 (4) SA p115

Pillay AJA (Navsa JA, Willis JA and Mathopo JA concurring)

[4] After November 1993 Padca began to develop 'Woodgrove' on its A property, being Lot 3344, Pietermaritzburg, to provide residential accommodation for the elderly. Shortly thereafter, development started on Lot 321, Pietermaritzburg, being Redlands Estate, a secure, enclosed estate that is situated on ground that slopes down to Woodgrove. Old Howick Road, a steep incline from the centre of Pietermaritzburg, B runs on the southwestern side of both properties, bounding Redlands Estate directly, but separated from Woodgrove by a single row of freehold houses. Redlands Estate is higher up Old Howick Road than Woodgrove.

[5] Redlands Estate and the freehold and sectional title properties C forming part of it are not contiguous to Woodgrove. George McFarlane Lane, a short road, lies between the lower (eastern) boundary of Redlands Estate and the upper (western) boundary of Woodgrove. In November 1994 contractors for the developer of Redlands converted George McFarlane Lane from a dirt track into a tarred road, on two erven registered in favour of the municipality. Another two privately D owned properties lie between George McFarlane Lane and Woodgrove, namely, Portion 1 of Erf 674 and Portion 20 of Erf 837. Additionally, several other freehold properties separate the properties of some of the respondents from Woodgrove.

[6] The municipal stormwater system consists of an open channel or E gutter on Old Howick Road adjacent to the boundary of Redlands Estate and running up to the entrance to the estate. This collects water from further up the hill and from municipal stormwater pipes before diverting the water into drainage catchment pits and thence into two pipes near the corner of Old Howick Road and George MacFarlane Lane, to F discharge into a canal. From at least the 1930s the municipality had discharged its stormwater from Old Howick Road and higher properties into and across the natural watercourse on the property where Woodgrove now stands. Padca built its canal on this watercourse during the construction of Woodgrove for the purpose of receiving water from higher properties and drainage within Woodgrove itself. This pipe and G another municipal pipe are laid over a stormwater drain servitude on Portion 20 of Erf 837.

[7] Additionally, three roadside catchment pits — two situated on either side of the entrance to Redlands Estate, the third further along George MacFarlane Lane — collect stormwater from George MacFarlane Lane, H including water run-off from Old Howick Road. Redlands Estate discharges stormwater into one of these catchment pits.

[8] After its development, Redlands Estate had a combined stormwater reticulation and disposal system for all the properties within the estate. I Together they contributed to the volume of water flowing into the Redlands Estate disposal system. This combined run-off of water from Redlands Estate consolidated further in the catchment pits, from where it passed through a 600 mm pipe under George McFarlane Lane, up to the headwall of Padca's canal. Some surface water from Redlands Estate and Briar Ghyll runs off onto George McFarlane Lane and onto J

2018 (4) SA p116

Pillay AJA (Navsa JA, Willis JA and Mathopo JA concurring)

Woodgrove, A via an access road and through a stand of bamboo on the western boundary.

[9] Before the development of Redlands Estate the property on which it stands was not pristine. Instead it had a large residence, related buildings, terraces and driveways. When this litigation started Redlands B Estate had developed into a residential estate and business park with a boutique hotel, tarred roads, pavements and parking areas, all of which resulted in the impervious coverage of the land increasing from 11,85% pre-development to 42,2% post-development.

[10] Stormwater within Redlands Estate is not attenuated; it is collected C and its discharge into the municipal system is controlled. The sources of water allegedly causing damage to Woodgrove are via the 600 millimetre pipe, and over George MacFarlane Lane at both an emergency-exit driveway and through bamboo at the top end of Woodgrove. This 600 millimetre pipe replaced a 450 millimetre municipal pipe that had been D installed before Woodgrove was developed. The new pipe was built at the instance of the municipality during the construction of George McFarlane Lane. Although the old...