Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Hoexter JA, Nestadt JA, Vivier JA, Kumleben JA and Viljoen AJA
• Judgment Date: 31 March 1988
• Citation: 1988 (3) SA 122 (A)
• Hearing Date: 10 March 1988
• Court: Appellate Division

Hoexter JA:

The respondent is a private company which is the registered owner of an erf ('erf 89') in Sandown Extension 2 Township. The appellant is a local authority constituted in terms of the Local Government Ordinance 17 of 1939 (T), as amended ('the ordinance'). In H terms of s 134(b) of the ordinance the appellant gave the respondent notice of the former's intention to lay stormwater pipes across erf 89 by the taking of the right to do so. The provisions of s 134 of the ordinance empower the appellant to carry out sewerage and drainage work. For purposes of the present appeal the relevant provisions of s 134 are I the following:

'For the purpose of carrying out any drainage... works the council may -

(a)

cause such... drains, and pipes to be made, laid... and maintained either within, or... outside the municipality as may be necessary for effectually... draining the municipality or any portion thereof...

(b)

carry such... drains or pipes through, across, or under any public road, street, square, or open space, or any place laid out J as or intended for a public

Hoexter JA

A road, street, square, or open place either within or outside the municipality, without paying compensation and, after giving reasonable notice in writing to the owner or occupier of their intention, perform the same acts in respect of any land within or... outside the municipality on making compensation for any damage done, the amount whereof, if not mutually agreed upon, being determined by arbitration, provided that, in determining any B compensation payable by the council hereunder the existence of any sanitary passage through or over which the council has a right of access to any private land or building for the purpose of sanitary service and which right the council may be willing to surrender, shall be taken into account....'

(My italics.)

C Considering that the presence of the stormwater pipes on erf 89 would reduce the value of the property, the respondent claimed payment of R205 200 as damages from the appellant. The appellant refused to pay damages on the basis claimed by the respondent. In the Witwatersrand Local Division the respondent instituted an action against the appellant. In D terms of s 134(b) of the ordinance, read with s 26(4) and s 21(1)(b) of the Expropriation Act 63 of 1975, it claimed compensation in the sum of R205 200 'as and for actual financial loss'. The appellant excepted to the respondent's claim. Having heard argument thereon, Le Grange J dismissed the exception with costs, including the costs consequent upon E the employment by the respondent of two counsel. With leave of this Court the appellant appeals against the whole of the order made by the Court below. The judgment appealed against has been reported: Sandton Town Council v Erf 89 Sandown Extension 2 (Pty) Ltd 1986 (4) SA 576 (W).

From the respondent's particulars of claim as amplified by the F annexures thereto it appears that the case pleaded by the respondent is the following. Erf 89 is zoned for business rights. The respondent computes the loss in value of erf 89 flowing from the laying of the stormwater pipes across it as follows. It says that if an office building be erected upon erf 89 the presence of the stormwater pipes will permit of 76 fewer parking bays being accommodated in the basement G of the building than would otherwise have been the case. The appellant excepted to the respondent's claim on the ground that it failed to disclose a cause of action. The basis of the exception was that upon a proper interpretation of s 134(b) of the ordinance compensation was claimable in respect only of direct physical damages to the land itself.

H In this Court the submissions advanced on behalf of the appellant by Mr Heher may be outlined somewhat as follows. He allowed that the carrying of stormwater pipes across erf 89 necessarily involved an interference with the physical state of the land; and that such interference no doubt created a correlative legal duty upon the I appellant to fill all excavations made in the course of laying the pipes and to make good and...