Van der Merwe v Carnarvon Municipality

JurisdictionSouth Africa
JudgeDe Villiers AJP
Judgment Date07 June 1948
Citation1948 (3) SA 613 (C)
Hearing Date07 June 1948
CourtCape Provincial Division

De Villiers, A.J.P.:

This is an argument upon two exceptions taken by the plaintiff to the defendant's plea. The declaration alleges that the plaintiff is the owner and occupier of Erf No. 271

De Villiers AJP

in the municipal area of Carnarvon. On the erf are situated a house, gardens and an orchard, while drinking water and water to irrigate the gardens and orchard is obtained from a borehole, also situated upon the erf. Defendant Municipality is the owner and occupier of ground about 80 yards distant from the plaintiff's erf and upon this ground there are an electric power station, conducted by defendant, and also certain underground oil storage tanks in which defendant stores oil used by it in connection with the electric power station.

Para. 5 of the declaration is as follows:

'Defendant has over a long period of time wrongfully and unlawfully allowed and continues to allow oil stored in the said tanks to escape therefrom and to percolate underground on to plaintiff's said erf, thereby creating a nuisance.'

As a result the declaration alleges that the erf has been rendered unfertile and that the water from the borehole has been rendered unpotable and unfit for use for irrigation of the gardens and the orchard, and plaintiff claims damages in the sum of £1,000.

To this declaration, however, after certain particulars had been asked for and furnished, the defendant Municipality filed a plea to the following effect:

It admits that when the power station was erected, crude oil was stored in underground tanks on its ground referred to in the declaration. In para. 4 of the plea it admits that the oil which was stored in the tanks escaped therefrom and thereafter percolated into the earth under the plaintiff's erf. In para. 4 (b) defendant alleges that it was unaware of the escape of this oil, but when it learnt thereof it took due steps to stop - and did in fact stop - any further escape of oil, the tanks having been entirely disused since the beginning of 1941.

By denying the other allegations of para. 5, it follows that it denies that since 1941 any oil escaped from these tanks and/or percolated underground into the plaintiff's erf. The defendant goes on to admit that the water from plaintiff's borehole has been rendered unpotable and that plaintiff has suffered some damage.

In para. 6 of the plea a separate and independent defence is pleaded in the following terms:

'Further to its averment that defendant is not liable to plaintiff for such damage as he may prove to have sustained, defendant says especially:

(a)

The escape of oil from the aforementioned tanks was due solely to their faulty construction;

(b)

The said tanks were constructed not by defendant but by a competent

De Villiers AJP

firm of engineers to wit Siemens (South Africa) Limited of Johannesburg, employed by defendant as an independent contractor;

(c)

Defendant was at all material times unaware of such faulty construction.'

To this plea plaintiff has excepted as being vague, embarrassing, bad in law and disclosing no defence to plaintiff's claim in that neither (a) the absence of knowledge pleaded in para. 4 (b), nor (b) the defence of independent contractor pleaded in para. 6, could avail defendant against plaintiff's action, which is based upon nuisance.

Mr. van Winsen for the excipient contended that in an action laid in nuisance absence of knowledge of the nuisance was irrelevant and could afford no defence.

That may very well be so, but the Court in deciding the exception has to look at the terms of the declaration. Para. 5 of the declaration alleged that over a long period of time defendant wrongfully and unlawfully 'allowed and continues to allow oil stored in the tanks to escape therefrom and to percolate underground on to plaintiff's erf, thereby causing a nuisance'.

Before the plaintiff can be heard to say that a plea of lack of knowledge is irrelevant, he must show that it was irrelevant to the language used in para. 5 of the declaration in which admittedly his cause of action is set out. Faced with the phrase 'allowed and continues to allow', defendant has pleaded that it at no time knew, prior to 1941, of the existence of the nuisance and that after 1941, as the result of steps taken by it, the nuisance was discontinued.

...

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12 practice notes
  • The Rationale for the Imposition of Non-Financial Obligations on Apartment Owners in a Sectional Title Scheme
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 August 2019
    ...Cf Kirsch v Pincus 1927 TPD 199 and Malherbe v C eres Municipalit y 1951 4 SA 510 (A)153 Cf Van der Merwe v Car narvon Municipali ty 1948 3 SA 613 (C); Regal v African Supersla te 1963 1 SA 102 (A)186 STELL LR 2015 1 © Juta and Company (Pty) 5 EvaluationOn closer examination, it will become......
  • Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd and Another
    • South Africa
    • Invalid date
    ... ... Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 ... Kruger v Coetzee  1966 (2) SA 428 (A) ... Kruger v Van der Merwe and Another  1966 (2) SA 266 (A) ... Langley Fox Building Partnership (Pty) Ltd v De Valence ... Van der Merwe v Carnarvon Municipality  1948 (3) SA 613 (C) ... Van der Merwe v Zak River Estate Ltd 1913 CPD 1053 ... ...
  • Sangoni v Multilateral Motor Vehicle Accidents Fund
    • South Africa
    • Transkei High Court
    • 19 March 1998
    ...that he reconciled himself with that fact. (See Cape Town Council v Benning 1917 AD 315 at 319; Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C) at 617 to 618 and Moller v South African Railways and Harbours 1969 (3) SA 374 (N) at 377 H.) Mr Troskie submitted that the fact that it......
  • Moller v South African Railways and Harbours
    • South Africa
    • Invalid date
    ...farm. The word 'allow' implies knowledge. Cape Town Council v Benning, 1917 AD 315 at p. 319; van der Merwe v Carnarvon Municipality, 1948 (3) SA 613 (C) at p. 618. The allegation consequently seems reasonably capable of meaning that during the period in question defendant pumped petroleum ......
  • Request a trial to view additional results
11 cases
  • Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd and Another
    • South Africa
    • Invalid date
    ... ... Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 ... Kruger v Coetzee  1966 (2) SA 428 (A) ... Kruger v Van der Merwe and Another  1966 (2) SA 266 (A) ... Langley Fox Building Partnership (Pty) Ltd v De Valence ... Van der Merwe v Carnarvon Municipality  1948 (3) SA 613 (C) ... Van der Merwe v Zak River Estate Ltd 1913 CPD 1053 ... ...
  • Sangoni v Multilateral Motor Vehicle Accidents Fund
    • South Africa
    • Transkei High Court
    • 19 March 1998
    ...that he reconciled himself with that fact. (See Cape Town Council v Benning 1917 AD 315 at 319; Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C) at 617 to 618 and Moller v South African Railways and Harbours 1969 (3) SA 374 (N) at 377 H.) Mr Troskie submitted that the fact that it......
  • Moller v South African Railways and Harbours
    • South Africa
    • Invalid date
    ...farm. The word 'allow' implies knowledge. Cape Town Council v Benning, 1917 AD 315 at p. 319; van der Merwe v Carnarvon Municipality, 1948 (3) SA 613 (C) at p. 618. The allegation consequently seems reasonably capable of meaning that during the period in question defendant pumped petroleum ......
  • Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd
    • South Africa
    • Invalid date
    ...sake as 'n juiste veronderstelling aanvaar, soos in Graham v Dittman & Son 1917 TPD 288, en Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C). Dit het meegebring dat ons howe hul, by die bepaling van wat ons reg is, meermale vrywel uitsluitend laat lei het deur uitsprake wat uit di......
  • Request a trial to view additional results
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