THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 63/08

GIANFELICE PAPPALARDO

Appellant

and

GARY HAU

Respondent

Neutral citation: Pappalardo v Hau (63/08) [2009] ZASCA 160 (30 November
2009).

Coram:       STREICHER, HEHER JJA, HURT, LEACH et GRIESEL AJJA

Heard:        5 NOVEMBER 2009

Delivered:  30 NOVEMBER 2009

Summary: Neighbour law ─ drainage of rainwater ─ rights and obligations of
neighbouring owners in urban environment ─ whether lower owner obliged to
accept rainwater flowing onto his property from higher lying neighbour ─
judgment in Williams v Harris 1998 (3) SA 970 (SCA) considered and
discussed ─ lower owner only obliged to accept 'natural flow' ie flow across
boundary which would have occurred before development of urban erven ─
higher owner seeking to enforce right obliged to prove what the 'natural flow'
was.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: South Gauteng High Court (Horn J sitting as court of first
instance).

1.
The appeal is upheld with costs.
2.
The order of the court below is set aside and the following order
substituted therefor:
(a)
The defendant is granted absolution from the instance.
(b)
The plaintiff is ordered to pay the defendant’s costs, including the costs
of the expert witness Korsman.
______________________________________________________________

JUDGMENT
______________________________________________________________

HURT AJA (STREICHER, HEHER JJA, LEACH et GRIESEL AJA concurring):

[1] The respondent instituted action against the appellant in the South
Gauteng High Court, seeking a declaratory order to the effect that the
respondent was entitled to insert certain drainage pipes into a boundary wall
erected by the appellant. The respondent’s complaint was that the wall was
acting as a dam to rainwater on the respondent’s property, causing flooding of
a sector of the property. The appellant’s opposition to the claim was
unsuccessful, Horn J granting a declarator in the terms sought. The appellant
appeals against the judgment with the leave of the high court.

The Setting
[2] The appellant and the respondent own adjoining erven in a township
development known as Waterford Estate in the municipal area of Sandton.
Waterford Estate is an ‘upmarket township’ which was apparently established
in about 1996. There is controlled access to the Estate, the streets are all
macadamized and reticulated electricity, water, stormwater drainage and

sewerage systems have been installed in keeping with the customary
requirements for modern township developments. The respondent’s property,
erf 945, lies to the south of the appellant’s, which is erf 944. The properties
both slope down from south to north so that erf 945 is at a higher level than
erf 944, the total fall over each property being of the order of a metre. Each
property is flanked on the east by a street called Calleto Crescent. The
common boundary is the northern boundary of erf 945 and, accordingly, the
southern one of erf 944. There is a fall of the order of 600mm from west to
east in the vicinity of the common boundary. The area of erf 945 is
approximately 800 square metres while that of erf 944 is about 700 square
metres.

[3] It is common cause that when the parties acquired their respective
properties, no building had taken place on the Waterford Estate. The
appellant built on his property before the respondent. In addition to his
residence, the appellant constructed a boundary wall along his common
boundary with erf 945. This wall, to which I will refer simply as ‘the boundary
wall’, was approximately 2 metres high and traversed the length of the
common boundary from west to east. Some time after the appellant had
completed building, and during the latter part of 2003, the respondent
constructed his residence. As well as the house itself, he built walls on the
western and eastern sides of erf 945 and embellished his side of the
boundary wall with a series of decorative arches. In the space between his
house and the northern boundary wall he built a swimming pool which was
surrounded by paving and which occupied about a third of the total distance
between the eastern and western boundaries. Judging from the scaled site
plan of the property, I think it is safe to conclude that at least seventy percent
of the site is covered by buildings, paving and the swimming pool. Cultivated
gardens and lawns cover the remainder.

History
[4] During December 2003, the respondent noticed that rainwater was
gathering in the north-western sector of his property and damming up against
the boundary wall. The respondent discussed this problem with the appellant

and suggested that the boundary wall should be breached in some way to
allow this rainwater to drain off onto the appellant’s property. There was a
conflict of fact, in the evidence, about what transpired during this discussion
but, on 27 January 2004, the appellant’s attorneys addressed a letter to the
respondent, warning him that any attempt to breach or otherwise interfere with
the integrity of the boundary wall for the purpose of discharging water onto erf
944 would be resisted. The appellant’s contention was that the respondent’s
building operations had resulted in an increase in the flow of rainwater
draining northwards off erf 945 and that the appellant was not obliged to
accept or to deal with it. The respondent instituted action against the appellant
in August 2004, claiming a declaratory order to the effect that the respondent
was entitled to insert a series of drainage pipes into the base of the boundary
wall at ground level and at sub-surface level to allow rainwater to flow from
the respondent’s property onto the appellant’s. The respondent’s contention
was that the appellant, as the owner of the lower-lying property, was obliged
to accept such water.1 In his plea, the appellant denied that the water which
the respondent sought to discharge onto his property would have flowed there
naturally. He contended that considerations of practicality favoured an
arrangement whereby the respondent discharged excess rainwater directly
from erf 945 onto Calleto Crescent, referring in this regard to s 13(2) of the
Sandton Town Planning Scheme, 1980 (to which I shall make detailed
reference later).

[5] Having heard a fairly considerable amount of evidence (and, no
doubt, argument) on the matter, the learned judge in the lower court stated his
view of the law to be applied to this sort of situation in explicit and unequivocal
terms:
‘It is common cause that water will flow naturally from the [respondent’s] property to
the [appellant’s] property. The [appellant] as the lower lying property owner is obliged

1 The Particulars of Claim were equivocal in that they made reference to the requirements of
the National Building Regulations as support for the specific declaratory relief sought.
However, in his opening address at the trial, counsel for the respondent (plaintiff) made it
clear that ‘. . . the plaintiff relies upon the common right that the lower lying property must
receive the higher lying property’s water.’

to receive natural flowing water from the [respondent’s] property – there can be no
argument with that.
. . . .
In my view Williams v Harris 1998 (3) SA 970 (SCA) not only reiterated the common
law principle that a lower lying owner must receive excess natural water from the
higher lying owner, it also, by implication, underlined the principle that each case
must be decided on its own facts. I also believe that plain common sense should play
a role. In a case such as this where a person erects an obstruction which prevents
the natural flow of water it is only fair to expect that such a person will take the
necessary steps to avoid the accumulation of water caused by such obstruction.’

[6] If only the law was so uncomplicated! The basic principle is, indeed,
captured in the actio aquae pluviae arcendae2 of Roman times. But even in
those ancient days it was found necessary to limit the lower owner’s obligation
to accept water flowing from his more elevated neighbour by excluding any
increased flow arising as a result of ‘artificial works’ (ie other than those
arising from ordinary agricultural activities) carried out on his property by the
latter. As the Roman Law was adopted and modified into its Roman Dutch
form, the limitations and qualifications to the basic rule had, perforce, to
become more detailed and sophisticated for the purpose of making provision
for such matters as urban development and altered living conditions. Writers
such as Voet,3 Grotius4 and, later, Van Leeuwen5 reported distinctions
between rules for the rural (‘rustic’) and the urban environments. They
referred to a number of servitudes that were customarily encountered as
between property owners in rural areas and a number of different servitudes
customarily encountered as between neighbouring owners in the urban
setting. An examination of these servitudes makes it clear that they were
necessary to regulate the relationship between owners of neighbouring
properties insofar as coping with water flow and drainage were concerned and
that they were used to vary or modify the common law rules which would
otherwise apply. It also appears that, in various areas, probably the equivalent

2 Voet 39.3.2.
3 39.3.4.
4 The Jurisprudence of Holland (Lee), II.34 and 35, especially II.34.15 and 16; and II.35.16
and 17.
5 Censura Forensis 2.14.22.

of the municipal areas of modern times, the ‘basic rule’ that the lower owner
should accept the natural flow of water from the higher property had been
modified.6 Judging from the nature of the ‘urban servitudes’ discussed by Voet
and Grotius, they had undoubtedly been formulated for the purely practical
purpose of catering for the restricted space and concentrated building
development that characterised (and still characterise) the urban environment.
It is not the purpose of this judgment to consider these early common law
rules, and the water servitudes which modified them, in any detail. It suffices
for present purposes to say that by the time Roman Dutch Law became our
Common Law, a distinction had already been drawn between the rights and
obligations of neighbours in regard to the regulation of water flow between
their properties in the rural context on the one hand and the urban context on
the other. There were differences of opinion amongst the writers as to what
properties were to be treated as ‘rustic’ (or ‘rural’) as opposed to ‘urban’. But
the proposed distinction was a subtle one, and it was generally accepted that
the so-called ‘urban servitudes’ applied where dwellings were involved and
the rustic ones applied to agricultural or larger tracts of cultivated property.7

[7] The reported decisions at the end of the nineteenth century and at the
beginning of the twentieth mention this distinction but always as a qualification
to the basic proposition that the lower owner is obliged to accept the natural
flow of water draining from the property of the higher neighbour.8

[8] In Bishop v Humphries 1919 WLD 13, Gregorowski J adopted a
practical approach to the problem of rainwater disposal in the urban context.
He pointed out that the very nature of the development of the urban properties
with which he was concerned would necessarily alter the natural flow of the
water from the one property to another. He described, in some detail, the
irreversible changes which development of an urban site would cause to the

6 Grotius op cit II.34.16; Van Leeuwen loc cit.
7 There is a detailed and interesting discussion of this aspect in C W Decker: Simon van
Leeuwen’s Commentaries on Roman Dutch Law (2 ed) at 289 – 290 and 305-309.
8 Eg Austen Bros v Standard Diamond Mining Co Ltd (1883) 1HCG 363, esp at 377-378.

natural lie of the land, and, accordingly, to the ‘natural flow’ of water traversing
it.9
‘The water can no longer flow as it used to flow before buildings were erected and
fences and other obstructions interposed. It would be perfectly impossible to restore
the surface as it was before it was interfered with, and let the rainwater run off as it
was accustomed to do. When it was in its natural state the surface being a slope the
water never accumulated, but ran freely off westwards and northwards . . .. When
buildings were put up extending over about half the surface of the stands with roofs
collecting the water, the natural arrangement for the flow of the water was further
disturbed and rendered impracticable. There would be more water to be got rid of
than before and the water would have been more concentrated . . . the water coming
from the roof comes in a concentrated form, hence the general doctrine has been
that an owner cannot throw the water from his roof on to the adjoining neighbour’s
land, whatever the levels may be, unless he has a servitus stillicidii recipiendi. Every
owner has to make some provision for the water coming from his roof and to provide
against such water falling on his neighbour’s land and causing damage and
inconvenience there. Similarly he cannot let the water fall from his own roof on to his
own land and claim the right to lead it through an aperture on to his neighbour’s land.
This would not be a natural flow of water, but it would be an artificial discharge
operated by the hand of man.’
As a general proposition, the learned judge went on to say:10
‘The fact is that when land is sold in small building plots, a state of things is created
and contemplated which puts an end to a large extent to the natural servitude11 which
previously existed as regards the water which falls on the plots. Each owner puts up
a building which covers a substantial part of the plot. He places an impervious
surface over the naturally porous surface of the soil. He accumulates the water
thereon. He alters the natural surface of the rest of the area of his plot by paving it or
by locating temporary structures thereon or digging it up, and thereby annihilates the
natural arrangement of the soil.’
And, finally, at the passage bridging pages 17 and 18:
‘The applicant has altered all the old conditions existing on this stand while it was
virgin soil and in a state of nature and it is quite impossible for him to throw a burden

9 At pp 15-16.
10 At p 17.
11 This term ‘natural servitude’ was used as a convenient manner of describing the common
law rights and obligations of neighbours. It is not to be construed as a ‘servitude in law’. See:
Retief v Louw (1874) 4 SC 165 at 174-175.

on the adjoining stand which is based on the assumption that his stand has
preserved rights which he himself has put an end to by his own constructions on the
property.’

[9] There are, in my view, two important features of the passages which I
have quoted above. The first is the emphasis on the ‘natural flow’ as referring
to the manner in which the water would have flowed, both as to quantity and
locality, from the one property to the other over the land in its undisturbed
state. It seems clear that, in coming to the conclusions to which I have
referred earlier, Horn J, in the lower court, paid no heed to what may be called
the ‘original pattern of flow’ from erf 945 to erf 944. Certainly none of the
witnesses who testified before him had endeavoured to establish what this
pattern of flow was or must have been, other than to say that the general
direction of flow would have been from south to north across the common
boundary.

[10] The second aspect is the particular emphasis placed on the
consideration that the upper owner has no ‘natural right’, merely as upper
owner, to concentrate the flow of water at a particular point or at particular
points. Although the quantity of water thus discharged may be equal to that
which would have crossed the boundary if the land had been undisturbed, the
lower owner would nevertheless be called upon to cope with a pattern of flow
which would not naturally have occurred. The upper owner can only impose
such a burden on his neighbour if there exists in his favour an express
servitude, whether acquired by registration, prescription or by agreement,
entitling him to do so. Although Horn J considered the practicality of the
installation of a system of drainage pipes in the boundary wall, he appears to
have overlooked the fact that those very pipes would act as conduits for a
concentrated flow of water at the points at which they emerged from the wall
on the appellants side – an arrangement which the respondent had no right,
without a servitude, to impose on the appellant.

[11] Bishop was followed in 1940 by Millin J in Green v Borstel 1940 (2) PH
M 89. The facts of that case were on all fours with those now under

consideration. The properties involved were in the urban area of Orange
Grove, Johannesburg. The owner of the lower property built a concrete wall
on his boundary to prevent stormwater flowing onto his property from the
more elevated property of his neighbour. The latter sought an order
compelling the lower owner to demolish the wall, contending that by
constructing it  the lower owner had unlawfully obstructed the natural flow of
water from the upper property. Millin J held that when a township is created,
the division of the ground into small plots and the erection of structures on
them would ‘cause the storm water to flow entirely differently from the way in
which it would have flowed originally’. He dismissed the application because
the upper owner had failed to prove ‘that the water whose flow was obstructed
by the wall was water which would have flowed on to the [lower owner’s] land
even if no buildings had been erected, and the original contours of the ground
not interfered with.’

[12] A similar approach was adopted by Beadle J in Barklie v Bridle 1956
(2) SA 103 (SR). He, too, referred to Bishop with approval, although he
mentioned a possibility that the law may have been ‘too broadly’ stated in that
case.12 At page 109 he said:
‘In my view, if the owner of an urban tenement, by the lawful development of his
stand, increases, concentrates and alters the natural flow of water from his stand he
is not entitled to discharge that water on to his lower neighbour’s stand at a point
which may be most convenient to himself but most inconvenient to his lower
neighbour. He must take reasonable steps to ensure that by the discharge of that
water no injury is done to his lower neighbour; and if, by use of reasonable
measures, he can discharge that water on to the adjoining street so that the water
may be harmlessly drained down that street, then I consider he should do so.’

[13] Barklie was the subject of comment by Prof. Scholtens in the 1956
Annual Survey of South African Law.13 The learned professor expressed the

12 It is not clear, from the report, in what respects it may have been suggested that the
decision of Gregorowski J was possibly ‘too broad’.
13 At pp 134-136.

view that the decision was correct but that it could have been arrived at more
directly by reference to Grotius.14
‘Direct authority is provided by Grotius, 2.34.16, who says with regard to urban
tenements (Lee’s translation):
“For by the common law everyone must lead his water on his own land, or over his
own land out to the street”.
This rule exactly covers the facts of the present case. It is submitted that the decision
in Bishop’s case correctly states the Roman-Dutch law although a qualification is
needed where the natural situation makes it impossible to discharge rainwater on to
a street or road.’

[14] That brings me to the decision of this court in Williams v Harris 1998
(3) SA 970 (SCA) to which Horn J referred in his judgment and on which
counsel for the respondent relied heavily in support of his argument before us.
The decision is the first, as far as I am aware, in which this court was called
upon to deal with a ‘water dispute’ between residential neighbours in the
urban context. Coetzee J, who had given the judgment in the court of first
instance,15 had, on the authority of Bishop, Green and Barklie, expressed the
view that the very creation of a township resulted in an irreversible alteration
of the ‘natural land’ and that there could be no application of the principle that
higher landowners were entitled as of right to discharge rainwater onto the
property of their lower neighbours. In coming to this conclusion Coetzee J had
referred, also, to Grotius 2.34.16 and to the discussion of Barklie by Prof.
Scholtens in the 1956 Annual Survey. At the commencement of his judgment
on appeal, Marais JA emphasised16 that he felt constrained to embark on an
analysis of the common law, without having had the benefit of full argument.
The necessity for doing this, he said, was to decide whether there was
substance, in law, in the dispute on the papers as to whether the lower
property owner was obliged to tolerate any flow of water across the common

14 Op cit footnote 4, above.
15 Sub nom Harris v Williams 1998 (2) SA 263 (W).
16 At pp 981D and 984B-C.

boundary onto her property.17

[15] After a detailed investigation of the reported cases and comments by
certain writers, Marais JA concluded that the right of the owner of higher lying
property to discharge the ‘natural flow’ of rainwater onto the property of his
lower lying neighbour still exists even in urban environments. In coming to this
conclusion the learned judge pointed out that this right was not denied in
Bishop, Green and Barklie, but that in each of those cases it had been held as
a fact that the topography of the ground had been interfered with in the course
of development of the respective stands and that there was no proof that the
water which formed the subject matter of the dispute was flowing in its ‘natural
pattern’.

[16] In coming to this conclusion Marais JA made specific reference to the
comment on Barklie by Prof. Scholtens and the reference to Grotius 2.34.16.
In this connection he said:18
‘I explained earlier in this judgment why I do not consider that Bishop’s case purports
to support the notion that even rainwater which would have flowed naturally on to a
lower owner’s property must be prevented from doing so by the upper owner. I think
it is reasonably clear that Grotius is not speaking of naturally flowing rainwater but of
water (whether it be rainwater or not) which has been artificially collected by the
upper owner and which is sought to be discharged on to the lower owner’s property.
Such an interpretation harmonises the passage with another passage in Grotius,
namely 2.35.17 in which he said:
“By common law anyone may let his water flow in its natural course, from which
comes the old proverb ‘if water hurts you, you may turn it away’.”19
(Lee’s translation). The competing interpretation would result in attributing a self-
contradiction to Grotius – a highly unlikely postulate. I am aware that the first
passage cited occurs under the rubric of urban servitudes and the second under that

17 The learned judge had pointed out that there were a number of disputes of fact on the
papers and that it was necessary to decide whether the view of the judge a quo on this aspect
had been correct for the purpose of deciding whether the dispute concerning the quantity of
water involved should be one of the issues referred back to the lower court for the hearing of
oral evidence.
18 At p 983G-984B.
19 I must confess that the link between the principle and the proverb escapes me. The original
version in Dutch is 'dien water deert die water keert'. Perhaps something was lost in the
translation, but it is of no moment as far as this judgment is concerned.

of rustic servitudes but I do not think that Grotius was confining his observation in the
latter to rural situations. If it was indeed so that a fundamentally different principle
applied in urban situations I would have expected Grotius to pointedly draw attention
to the contrast.’
I am unable to agree with Marais JA’s reason for interpreting and qualifying
the passage as he did. It is clear that the whole context of chapters 34 and 35
of book 2 is one in which the learned writer was stating why the customary
servitudes had become necessary – ie that they were aimed at alleviating the
burdens thrust on owners by the common law.

[17]  As I understand the issues formulated by Marais JA20 for reference to
oral evidence before the court a quo, those in respect of the water dispute
contemplate the possibility that the court hearing the evidence might
effectively order the lower owner to accept the ‘historical natural flow’ and no
more. Since, on the basis of the decisions in Bishop, Green and Barklie the
determination of the ‘natural flow’ in the urban context is rendered virtually
impossible by the very establishment of a modern urban township, it is difficult
to conceive of the form which a court order could take for the fair enforcement
of the higher owner’s right in this regard. Plainly the order could not relate to
the quantity of ‘natural flow’ only, for immediately the cogent objections to
concentration of the theoretical natural flow mentioned in Bishop21 and
Barklie22 would apply. Furthermore, proof of the natural flow after
development has taken place would almost invariably be a very complicated
(and prohibitively costly for that reason) exercise.

[18] There is accordingly much to be said for the adoption, as correctly
reflecting our common law, of the judgment in Bishop with the qualification
suggested by Prof Scholtens in the passage quoted in para13. However it is
not necessary in this case, for reasons which follow, to go that far.

20 At p 984.
21 At pp 17 and 18.
22 At p 109.

[19] It is common to all the decisions which I have discussed, even that in
Williams, that at best for the upper owner, his right only extends so far as to
require the lower neighbour to accept the ‘natural flow’. Where, as in this
case, the upper owner sues to enforce this right, it is incumbent upon him, at
very least, to prove the amount of water constituting the ‘natural flow’.23 In this
regard counsel for the respondent tried to persuade us that the onus was on
the appellant, who was responsible for causing the problem on the
respondent’s property, to establish the amount of the natural flow as the upper
limit of his obligation. But there is clearly no substance in this contention. It
flies in the face of the decision in Green and there is no suggestion
whatsoever in Williams that the approach of Millin J might be incorrect in this
respect. There was no attempt by the respondent, in the course of the trial, to
establish what the amount of the ‘natural flow’ was. Indeed, it would probably
have been a task beyond the capabilities of the expert witness called by the
respondent. In the result, the facts being on all fours with those in Green, the
respondent’s argument must fail for the same reason as the plaintiff’s did in
that case.

[20] There remain two further aspects on which I think it is necessary to
comment.  The first relates to the effect of s 13(2) of the Sandton Town
Planning Scheme on the rights and obligations of the parties. It appears to
have been common cause that the provisions of the Scheme applied to the
properties in Waterford Estate. Section 13(2) reads as follows:
‘Where, in the opinion of the local authority, it is impracticable for stormwater to be
drained from higher lying erven direct to a public street, the owner of the lower24 erf
shall be obliged to accept and/or permit the passage over the erf of such stormwater:
Provided that the owner of any higher lying erf, the stormwater from which is
discharged over any lower lying erf, shall be liable to pay a proportionate share of the
cost of any pipeline or drain which the owner of such lower lying erf may find
necessary to lay in order to drain stormwater from his property.’

23 I stress that this would be the very minimum which the owner would have to establish – his
onus would ordinarily be much more complicated than this.
24 The copy of the extract of the Scheme put up as an exhibit omitted the word ‘lower’, but the
extract quoted by Horn J in his judgment, and the references in the Heads of Argument to the
section both include this word. The section would be meaningless without it and there can be
little doubt that the section in fact reads as quoted above.

It is of interest to note the similarity between these provisions and those
suggested by Prof Scholtens in the Annual Survey article. But apart from that,
it seems clear that what is clearly implied by the subsection is that, where it is
practicable to drain stormwater onto the street, the owner must do so.
However, Horn J dealt with this contention in the following terms:
‘I fail to see how this provision can be applied to the facts of this matter. It was after
all the [appellant] who raised this aspect and, if anything, it was for the [appellant],
should he have felt that the proviso applied, to prove the applicability of the town
planning provisions to this matter.’
I have premised my reference to the Town Planning Scheme on the basis that
it was common cause between the parties that s 13(2) applied. If it did not,
then cadit quaestio. In argument, counsel for the respondent did not (as I
understood him at least) try to contend that the Scheme was not applicable.
What he submitted was that the appellant bore the onus of proving that the
local authority did not hold the opinion referred to in the subsection. This is an
unduly contorted way of looking at the provision. As I have already indicated,
the subsection is based upon an assumption that water will be drained onto
the street. An owner wishing to drain it through some other course, for
instance his neighbour’s property, must obtain the opinion of the local
authority that there is no other practical means of coping with the stormwater
before he acquires the right to do so. There is accordingly no substance in the
assertion that, in the absence of any evidence of the local authority’s view on
the matter the respondent’s contention must fail. In fact it was common cause
between the experts for both sides that the respondent could construct a
sump in the north-west sector of his property and drain the excess water from
there to Calleto Crescent. The dispute about this arrangement was focused
on its cost compared to the cost of inserting pipes in the boundary wall and
draining the water to the street along the appellant’s southern boundary. But
the fact that the latter arrangement would have been cheaper than the former
hardly assists the respondent. The issue is not one of expense but of
‘practicability’. I should mention that the experts agreed that if the respondent
had installed the sump and necessary piping to Calleto Crescent before
building his swimming pool and paving its surrounds, the cost of such

installation would have been far less. In my view the provisions of the Town
Planning Scheme also operate in favour of the appellant.

[21] The last aspect concerns the case which the respondent attempted to
develop concerning alleged non-compliance by the appellant with the
provisions of the National Building Regulations and their subsidiary provisions
in the construction of the wall. Respondent and his expert witness referred to
certain regulations relating to the provision of drainage through certain walls.
There was a dispute between the experts as to whether the appellant was, in
the circumstances in which he constructed the boundary wall before the
respondent started to develop his property, even obliged to provide drainage
holes in it. The lower court did not consider the question whether on the basis
of these regulations alone, it should exercise its discretion to grant respondent
relief. Nor do I think it would have been appropriate for the court, especially on
the limited evidence before it, to exercise such a discretion in the respondent's
favour. This appeal will certainly not operate as a bar to the respondent
approaching the local authority to complain about any transgression of the
Regulations of which the appellant may have been guilty and the regulations
and the by-laws will provide the remedy if the respondent's allegations are
well founded.

[22] In the result the appeal must succeed. I make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court below is set aside and the following order
substituted therefor:
(a)
The defendant is granted absolution from the instance.
(b)
The plaintiff is ordered to pay the defendant’s costs, including the costs
of the expert witness Korsman.

_______________________
N V HURT
ACTING JUDGE OF APPEAL

Appearances:
Counsel for Appellant:
A Bester
Instructed by
Kuilman Mundell & Arlow c/o Matthew Kerr-
Phillips, Johannesburg
Webbers, Bloemfontein

Counsel for Respondent: A van der Merwe
Instructed by
Vos Attorneys c/o Whalley Van Der Lith,
Johannesburg
Symington & De Kok, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 30 November 2009
Status: Immediate
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

G PAPPALARDO v G HAU

1.
The Supreme Court of Appeal today allowed an appeal by a resident of a township in
Gauteng who had been ordered by the South Gauteng High Court to permit his neighbour to
insert a number of drainage ports in the wall which he had constructed along the common
boundary between the two erven. The purpose of the drainage ports was to allow rainwater
gathering on the neighbour's side of the boundary wall to flow down the natural slope of the
two properties on to the appellant's erf. The high court had held that the appellant, as the
owner of the lower lying property, was obliged to accept the water from his higher lying
neighbour.

2.
The SCA held that the appellant's obligation was limited to the 'natural flow' of
rainwater between the properties before the erven had been developed by the construction of
residences etc on them. Since there was no proof of what this 'natural flow' was and how it
would have been distributed over the common boundary, the neighbour's contention that he
was entitled to drain the water through such drainage ports could not succeed. The question
whether the Roman Dutch law recognised an obligation on the part of a lower lying owner in
the urban context to accept the 'natural flow' of rainwater from a higher lying neighbour was
discussed but not decided.
--ends--