Reddy and Others v Durban Corporation

• Jurisdiction: South Africa
• Judge: De Wet JA, Watermeyer JA and Centlivres JA
• Judgment Date: 28 March 1939
• Citation: 1939 AD 293
• Court: Appellate Division

Watermeyer, J.A.:

The plaintiffs (appellants) in this case are the owners of a piece of land, part of the farm Cato Manor, situated within the boundaries of the City of Durban. Their land lies on the side of a hill and extends down into a valley at the foot of the hill. Running down the hill from south to north across the plaintiff's land is a depression which forms a natural water-course; in one part it has been eroded to such an extent that it has become a donga. This donga (considerably smaller than it is to-day) was in existence in 1910, and at that time it carried down into the valley below the stormwater which naturally drained into it from the plaintiffs' lands. In 1910 the defendants (the Mayor and Councillors of the City of Durban) laid a pipe-line and constructed a road on the slope of the hill from east to west across the plaintiffs' land, and where these passed over the natural water-course a culvert was built to carry the road and pipe-line. As a result of the construction of the road, stormwater, which naturally would have found its way down the hillside, was diverted into the donga. On 3rd August, 1937, a severe storm occurred, the culvert was destroyed by stormwater and serious erosion took place below the culvert and the donga was considerably enlarged. The plaintiffs thereupon took proceedings against the defendants and sued them for damages in respect of the erosion and loss of crops and for an interdict restraining them from discharging stormwater on to the plaintiffs' property in

Watermeyer, J.A.

greater volume or at a greater velocity than it would be discharged if the road and culvert had not been constructed. The Durban and Coast Local Division (HATHORN, A.J.P.) gave judgment for defendants, and the plaintiffs now appeal against this decision.

It is necessary first to examine the pleadings to appreciate the nature of the cause of action relied upon by the plaintiffs. To support the claim for damages the plaintiffs state that the defendants constructed the road and culvert and then state the consequences which followed from such construction, viz.: (a) That the natural flow of stormwater was disturbed; (b) that the stormwater flowed along the road from opposite ends towards the culvert; (e) that it accumulated at the site of the culvert; (d) that it then discharged on to the plaintiffs' property below the culvert; (e) that the water so discharged was increased in volume and velocity beyond what it would have been if no works had been constructed. Now clearly the construction of a road by defendants which entailed those consequences would be an invasion of plaintiffs' rights of ownership and would be actionable unless authorised by Parliament. We find, however, that by Act 23 of 1905 (Natal) the defendants were authorised to construct the pipe-line, and under sec. 5 they were given power "with wagons, carts and vehicles to have access at all times to the pipe route... and to do all such further and other acts, matters and things, and to exercise such further powers as shall be necessary to carry out the objects of this Act." The construction of the road as a necessary adjunct to the pipe-line was therefore authorised, and the construction of the road necessarily interfered with the natural flow of stormwater by concentrating it and diverting it. Plaintiffs recognise this and accordingly they do not claim that the defendants' acts of road construction and diversion of stormwater per se give rise to a cause of action. They base their case upon negligence. They pick out faults in the method adopted by defendants to dispose of the stormwater. They say that these faulty methods constitute actionable negligence causing damage, which they seek to recover. The negligence upon which they rely is set out in paragraph 12 of the declaration, and the consequences which followed in paragraphs 13 and 14. These paragraphs are of great importance. They are in the following terms: -

Watermeyer, J.A.

"12

Defendants were negligent in carrying out the works aforesaid, in that -

"(a)

by their original construction of the road they altered the natural lie of the land, and thereby diverted storm water from its natural flow, and directed its flow along the road towards the culvert in the valley, but made no provision for carrying or leading it away;

"(b)

by their alterations and repairs to the road they in creased the extent of the diversion of stormwater and the volume and velocity of its flow towards the culvert because they excavated, narrowed and hardened the surface of the road below and between banks or ridges on both sides' and made a channel or water course towards the culvert, and failed to provide any outlets for the water to flow off from the surface of the road;

"(c)

they failed to provide any works, drains or gutters properly to carry or lead away the accumulation of water on the road and at the site of the culvert;

"(d)

in constructing the culvert they removed or interfered with the natural lateral support of the land on the upper side of the culvert and failed to provide any retaining wall or other support in place thereof;

"(e)

they failed to make any provision against the culvert becoming choked; they failed to provide any means of breaking the force of the water where it discharged on to the said property; (9) they failed to provide any protection to the said property against damage where the water discharged on to such property; (h) they failed to make any provision for carrying or leading away the water discharged on to the said property.

"13.

"On or about 3rd August, 1937, in consequence of defendants' negligence aforesaid, such a...