Richter v Bloemfontein Town Council

• Jurisdiction: South Africa
• Judge: Innes CJ, Maasdorp JA, De Villiers JA, Juta JA and Lange AJA
• Judgment Date: 19 December 1921
• Citation: 1922 AD 57
• Hearing Date: 22 October 1921
• Court: Appellate Division

Innes, C.J.:

The Municipality of Bloemfontein was authorised by Law 19 of 1896 to establish and maintain waterworks for the benefit of the inhabitants; and to that end was empowered, on payment of compensation, to appropriate, impound (op te dammen) and lead away the water of any public stream, or so much thereof as might be necessary. The ground for works and buildings was to be expropriated through the medium of the Government, but at

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municipal cost; and the statutory machinery regulating the compulsory acquisition of property for public purposes was to be utilised for the expropriation of any right of property needed for the construction of the waterworks or for other purposes relating thereto. The expropriation statute operative at all relevant times was Law I of 1899. The eighth section directed the Legislative Council to endeavour in all cases to come to an amicable agreement as to compensation; if such an agreement were arrived at, a deed of purchase and sale was to be executed; if not, the matter was to be settled by the Court. Taking advantage of these powers, the Council in November, 1902, laid before a meeting of ratepayers a scheme for new waterworks and a sewerage installation, an essential feature of which was the acquisition of land for a pumping-station and the construction of a dam wall, 14 feet high, at Mazelspoort, on the Modder River. By resolution duly taken, the "additional water supply scheme as now laid before the meeting" was adopted, and the Government was requested to set in motion the machinery for the acquisition of the necessary rights. The Modder River - a public stream - flowed at the proposed site between the farms Klipdrift and Mazelspoort, the former of which belonged to the appellant and the latter to Hellegard Steyn. And in May, 1903, it was notified in the Gazette that four specified areas had been expropriated for the construction and maintenance of the Bloemfontein Waterworks. of these, one of thirteen morgen in extent was part of the appellant's farm Klipdrift; another consisted of 82 morgen taken from Mazelspoort, on the opposite bank; the third and fourth were portions of Krantzkraal and Mocke's Dam, lower down the river. So far as Klipdrift was concerned, the parties appear to have come to an agreement on the 3rd September, 1903, as to the compensation to be paid, not only for the 13 morgen, but also for certain water and other rights which the Municipality was acquiring at the same time. No contract of sale was executed, but on the 26th October, 1904, a transfer deed was registered which embodied the particulars of the transaction, and the interpretation of which is the real point at issue in these proceedings. The deed purported to transfer to the Municipality, in fulfilment of a sale concluded on the 3rd September, the expropriated area (13 morgen) of Klipdrift, and "further the water rights in and on the Modder River to which the said portion of the farm hereby transferred is entitled, with the right to dam the said river, subject to the

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obligation on the part of the Town Council to fence and keep fenced the aforesaid piece of ground in good and substantial manner, and to maintain same and all gates giving access thereto in good and proper repair and order. The rights hereby transferred to be registered as a perpetual servitude against the farm Klipdrift, binding on the present owner, as well as all future owners, possessors or occupiers thereof." Payment of the purchase price (£1,500) was acknowledged in customary form. The effect of the transfer was to carve out of Klipdrift and vest in the respondent a small riparian strip; but the appellant continued to own a large extent of land along the bank of the stream, both above and below the expropriated area. A retaining wall of the height contemplated by the scheme which the ratepayers had approved (14 feet) was in due course erected and a body of water impounded which extended upstream far beyond the limits of the municipal strip and necessarily submerged a certain portion of appellant's property.

The dam thus formed, however, soon began to silt up, and became inadequate for the requirements of the town. In 1914 a temporary addition of 16 inches was made to the height of the wall, and in 1919 it was permanently raised to 20 feet - the result being to submerge a much larger area of the appellant's land than had been inundated by the construction of the original weir. Richter, who had protested against both additions, then instituted these proceedings, claiming damages under various heads, but chiefly for submergence, for deprivation of practicable approaches to the river and for consequent loss of stock by drowning and otherwise. The plea relied upon the deed of transfer - the works complained of having been constructed, it was alleged, under the rights and powers therein secured, and the registered servitude therein mentioned. So that the controversy centred around the construction of that document. Evidence was led to show that the so-called purchase price of £1,500 had been accepted by Richter or, the basis of a weir 14 feet high and no more. The damage caused by the submergence resulting from such a work was comparatively trifling, but the consequences of raising the wall to 20 feet were serious and had neither been taken Into account nor contemplated when the compensation was originally fixed. This evidence was objected to, but was admitted subject to subsequent argument and consideration. It was finally rejected on grounds fully stated in the clear and able reasons of the JUDGE-PRESIDENT, and an order of

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absolution from the instance was made. But the Court specially found (assuming a 20 feet weir to be permanently maintained) that the resulting damage to the appellant would be £3,100. Clearly, therefore, Richter has been very materially prejudiced by the action of the Council. The only question is whether the terms of the transfer are such that the rules of evidence operate to prevent him from recovering compensation in a court of law. In other words, whether the language of the instrument is so clear and so definitely justifies the additional work complained of, that no evidence of what took place at the time can be allowed to explain it.

It is necessary to be quite clear as to what rules of evidence should be applied. Ordinance 12 of 1902, which regulates the matter in the Free State, does not directly adopt the English rules. But it does provide (sec. 62) that in all questions (not therein specifically dealt with) relating to the admissibility of evidence, the law administered by the Cape Supreme Court shall prevail "so far as the same shall not be repugnant to or in conflict with any Ordinance or other statute having the force of law in this Colony."

Chapter V. of the local code had theretofore dealt With the rules of evidence. It provided that in several respects the Roman-Dutch law should govern; but not apparently in regard to the general admissibility of evidence. Chapter V., however, needs no detailed consideration, for it was repealed by the Ordinance of 1902. So that the Cape procedure is what must be looked to in the present case; and that has adopted, broadly speaking, the rules of evidence cf. the English law.

The ground is therefore cleared for the consideration of those rules, so far as applicable to the present dispute, which turns upon the question whether the evidence given of surrounding circumstances was in the event rightly rejected. Every document should, of course, be read in the light of the circumstances existing at the time, and evidence may rightly be given of every material fact which will place the Court as near as may be in the situation of the parties to the instrument (see judgment of PARKE, B., in Shore v Wilson, 9 Cl. & Fin. 556). Where extrinsic evidence is tendered to identify the persons or things referred to - in other words, where it is merely a question of applying the document - the matter is comparatively simple. But where it is sought to interpret the language used by reference to surrounding

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circumstances, then the enquiry becomes often very intricate. Not because of any doubt as to the test, but because of the difficulty of applying it. The rule itself is clear; apart from cases where words or expressions are used in a technical or special sense, extrinsic evidence is only admissible to explain the construction of a document where words occur which are ambiguous either in themselves or as read with their context. And I agree with the learned JUDGE-PRESIDENT that the evidence admitted must relate to the ambiguity. For it is only allowed in order to explain the meaning of language which, as it stands, is capable of more than one meaning. The object is to ascertain the intention of the parties, not in the abstract, but as embodied in the language of the instrument. The narrow line upon which enquiries of this nature often proceed, and the important consequences which may be involved in the application of the rigid rule as to ambiguity are well illustrated by two cases printed in the same volume of the reports. In Bank of Now Zealand v Simpson (1900, A.C. 182), the words "total cost of the works," in a contract relating to the supervision of railway construction, were held to be susceptible of more than one meaning; and extrinsic evidence was allowed to show that they were intended by the parties to include the cost of the land necessary for the works. But in North-Eastern Railway Co. v Hastings (1900, A.C. 260), where a railway company had agreed, in return for a grant of way over the land of the grantor, to pay a specified rent in coal "conveyed over any part of the railways comprehended in" a certain statute and shipped at a certain port, it was held that the words above quoted were plain and unambiguous, and rendered the...