SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 184/17
In the matter between:

PIETERMARITZBURG AND
DISTRICT COUNCIL FOR THE
CARE OF THE AGED (PADCA)
APPELLANT

and

REDLANDS DEVELOPMENT         FIRST RESPONDENT AND 32
PROJECTS (PTY) LTD

OTHERS

Neutral citation:  Pietermaritzburg and District Council for the Care of
the Aged (PADCA) v Redlands Development Projects (Pty) Ltd (184/17)
[2018] ZASCA 51 (29 March 2018)

Coram:
Navsa JA, Wallis JA, Willis JA, Mathopo JA, Pillay AJA
Heard:
27 February 2018

Delivered: 29 March 2018
Summary: Actio aquae pluviae arcendae – interdict – stormwater from higher
property discharging into municipal stormwater drainage system – combined with
water from road and other properties – increasing flow in watercourse on lower
property – discharging in accordance with approved plans – discharge lawful –
alternative claim based on neighbour law unjustified.

[1] 
________
ORDER

___

On appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Kruger J sitting as the court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.

________
JUDGMENT

___

Pillay AJA (Navsa JA, Willis JA, Mathopo JA concurring)

[1] The appellant, the Pietermaritzburg and District Council for the
Care of the Aged (PADCA), a voluntary association, appeals against the
judgment of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg. The trial court dismissed with costs PADCA’s action
for an interdict to ‘stop the run-off of water from the properties that form
part of the Redlands Estate . . . in excess of the natural flow when . . .
Redlands Estate was in a pristine condition.’ The trial judge (Kruger J)
gave leave to appeal to this court.

[2] Redlands Development Projects (Pty) Ltd (Redlands) is the
first of 32 respondents opposing the appeal. Redlands and the second
respondent, Mr Hesse, developed the property that is known as the
Redlands Estate. Apart from the fifth respondent, Redlands Estate
Homeowners Association, the remaining respondents are either owners of
property on Redlands Estate or bodies corporate representing the owners.

All the property owners are members of the association, which owns and
maintains the common services including roads and stormwater systems.
[3] The appellant based its action on the actio aquae pluviae
arcendae (actio).1 To determine whether PADCA meets the requirements
of the actio, I begin by outlining the topography of the area and the
relative location of the properties.

[4] After November 1993 PADCA began to develop ‘Woodgrove’
on its property, being Lot 3344 Pietermaritzburg, to provide residential
accommodation for the elderly. Shortly thereafter, development started on
Lot 321 Pietermaritzburg, being Redlands Estate, a secure enclosed estate
that is situated on ground that slopes down to Woodgrove. Old Howick
Road, a steep incline from the centre of Pietermaritzburg, runs on the
south western side of both properties, bounding Redlands Estate directly
but, separated from Woodgove by a single row of freehold houses.
Redlands Estate is higher up Old Howick Road than Woodgrove.

[5] Redlands Estate and the freehold and sectional title properties
forming part of it are not contiguous to Woodgrove. George McFarlane
Lane, a short road, lies between the lower (eastern) boundary of Redlands
Estate and the upper (western) boundary of Woodgrove. In November
1994 contractors for the developer of Redlands converted George
McFarlane Lane from a dirt track into a tarred road, on two erven
registered in favour of the municipality. Another two privately owned
properties lie between George McFarlane Lane and Woodgrove namely,
Portion 1 of Erf 674 and Portion 20 of Erf 837. Additionally, several other

1 J Voet The Selective Voet being the Commentary on the Pandects (translated by Percival Gane Dig.
XXXIX) vol 6 Water and the Action on the Diversion of Rain Water at 34; T Mommsen, P Krueger
and A Watson (eds) The Digest of Justinian vol III D. 39.3.1 translation: Water and the action to ward
off rainwater.

freehold properties separate the properties of some of the respondents
from Woodgrove.
[6] The municipal stormwater system consists of an open channel
or gutter on Old Howick Road adjacent to the boundary of Redlands
Estate and running up to the entrance to the estate. This collects water
from further up the hill and from municipal stormwater pipes before
diverting the water into drainage catchment pits and thence into two pipes
near the corner of Old Howick Road and George MacFarlane Lane, to
discharge into a canal. From at least the 1930s the municipality had
discharged its stormwater from Old Howick Road and higher properties
into and across the natural watercourse on the property where Woodgrove
now stands. PADCA built its canal on this watercourse during the
construction of Woodgrove for the purpose of receiving water from higher
properties and drainage within Woodgrove itself. This pipe and another
municipal pipe are laid over a stormwater drain servitude on Portion 20 of
Erf 837.

[7] Additionally, three roadside catchment pits – two situated on
either side of the entrance to Redlands Estate, the third further along
George MacFarlane Lane – collect stormwater from George MacFarlane
Lane, including water run-off from Old Howick Road. Redlands Estate
discharges stormwater into one of these catchment pits.

[8] After its development, Redlands Estate had a combined
stormwater reticulation and disposal system for all the properties within
the estate. Together they contributed to the volume of water flowing into
the Redlands Estate disposal system. This combined run-off of water from
Redlands Estate consolidated further in the catchment pits, from where it
passed through a 600 mm pipe under George McFarlane Lane, up to the

headwall of PADCA’s canal. Some surface water from Redlands Estate
and Briar Ghyll runs off onto George McFarlane Lane on to Woodgrove,
via an access road and through a stand of bamboo on the western
boundary.

[9] Before the development of Redlands Estate the property on
which it stands was not pristine. Instead it had a large residence, related
buildings, terraces and driveways. When this litigation started Redlands
Estate had developed into a residential estate and business park with a
boutique hotel, tarred roads, pavements and parking areas, all of which
resulted in the impervious coverage of the land increasing from 11.85 per
cent pre-development to 42.2 per cent post development.

[10] Stormwater within Redlands Estate is not attenuated; it is
collected and its discharge into the municipal system is controlled. The
sources of water allegedly causing damage to Woodgrove are via the 600
mm pipe, and over George MacFarlane Lane at both an emergency exit
driveway and through bamboo at the top end of Woodgrove.  This 600
mm pipe replaced a 450mm municipal pipe that had been installed before
Woodgrove was developed. The new pipe was built at the instance of the
municipality during the construction of George McFarlane Lane.
Although the old pipe terminated on Portion 1 of 647, just short of
PADCA’s boundary, the outflow from that pipe entered the watercourse
on Woodgrove. Water from the new pipe is also designed to enter the
watercourse. Predictably, however, the new pipe carries more water than
the old pipe; it receives municipal stormwater including water from the
catchment pits on George MacFarlane Lane.

[11] The 600 mm pipe, the catchment pits and George MacFarlane

Lane belong to the municipality. The pipe transmits all the water it
collects not only from Redlands Estate but also a considerable volume of
water flowing down from Old Howick Road. So it is practically
impossible to distinguish water from Redlands Estate from other water
flowing into Woodgrove’s canal. PADCA accepts that the respondents are
not responsible for water run-off from Old Howick Road, or for all the
water from George MacFarlane Lane. As mentioned above, when
developing Woodgrove PADCA knew of the pipe carrying water from
Redlands Estate as well as the other sources of water into the natural
watercourse. Hence, when it built its canal it knew that it would receive
the stormwater from Redlands Estate.

[12] The municipality has several servitudes registered in its favour.
As described above, a stormwater servitude exists under George
MacFarlane Lane and to the headwall at the top of PADCA’s canal into
which two drains deposit municipal stormwater. A condition of title in
Deed of Grant 1877 preserved the right of the municipality to discharge
water into the natural watercourse on Woodgrove. Preservation of this
right is reinforced in the Deed of Grant of 1878 of Woodgrove and as a
specific condition of title in the Certificate of Consolidated Title of
Woodgrove. The private properties between Woodgrove and George
Macfarlane Lane namely, Portion 1 of Erf 837 and Portion 1 of Erf 647
are subject to a registered servitude in favour of the municipality and the
province to drain existing and future storm and surface water onto
Woodgrove for the effective drainage of Old Howick Road.  Manifestly,
the purpose of the servitude over both private properties, which ceases at
their boundaries, is to carry stormwater over those properties. The
watercourse over Woodgrove would then bear the burden of that water
downhill and discharge it into a pipe leading eventually into the

Dorpspruit.

[13] When Redlands Estate was developed, one of the conditions in
the municipality’s Guidelines for Private Developers (Roads and
Stormwater Drainage) read:
‘All outfalls shall be arranged to discharge either into the City’s stormwater
system or a natural recognized watercourse … Alternatively the design shall
ensure that the post-development run-off does not exceed the pre-development
run-off.’

[14] Although a final signed plan could not be found, either in the
records of the municipality or the company that completed the works,
PADCA accepted that on the probabilities the plan would have been
approved. PADCA’s witness, who was also responsible for the works on
Redlands Estate, confirmed that the company ‘built  . . . exactly as the
plan is.  We built the stormwater reticulation as per the design plan.’  The
City Engineer’s ‘approved’ stamp appears on the layout plans for all the
subdivisions. If the developers had not complied with the guidelines and
the design plan, it is safe to say that the municipality would not have
approved the plan for Redlands Estate.

[15] In summary, the respondents are disposing of their stormwater
into a reticulation system designed and installed according to approved
plans. The stormwater then enters the municipality’s stormwater disposal
system, which rests on several servitudes in the latter’s favour.

[16] PADCA relied primarily on the actio and alternatively on
neighbour law. It pleaded that the respondents had increased the run-off
onto Woodgrove by proliferating artificial works without attenuating or

controlling the stormwater thus causing damage to Woodgrove. Both the
volume and the velocity of the water flowing from Redlands Estate into
the municipal stormwater system and on to George McFarlane Lane
exceeded the natural flow. Although s 23 of the National Building
Regulations and Building Standards Act 103 of 1997 (Act) exempted the
municipality from any liability arising from its having approved
Redlands’ plans, PADCA contended that it did not exempt the
respondents from their common law obligations, especially the alleged
duty to attenuate the run-off from their properties. Whilst acknowledging
the servitudes registered in favour of the municipality, PADCA submitted
that the respondents nevertheless had no right to use municipal servitudes
that were not registered in their favour. As the owners of the higher
properties discharging more water than the natural flow onto the lower
property, they had no servitudinal or other right to do so. Consequently,
even though the respondents complied with the municipality’s
requirements, PADCA contended that they did not comply with their
common law obligations.

[17] The trial court dismissed the action after finding first, that
PADCA was non-suited because its property was not contiguous to those
of the respondents; consequently the actio did not apply. Second, the
action based on neighbour law also had to fail because the appellant had
failed to prove animus or intention on the part of the respondents. The
court opined that it was not necessary to consider the exemptions under
s 23 of the Act because that would become necessary only if the question
of damages arose.

[18] Three legal principles arising from the actio are relevant:
a) First, a higher property has a natural servitude over a lower

property, which, as the servient property, is obliged to receive the
natural water flow from the higher property. 2
b) Second, a higher property has no right to concentrate or divert the
flow of water onto a lower property unless it is allowed to do so by
a servitude granted by regulation, the nature of the site or
established custom.3
c) Third, a person who undertakes construction work that causes water
to flow elsewhere than its normal, natural course or to flow greater,
faster or stronger than usual, 4 will be liable if it causes damage
unless (a) it acts under a statutory or a common law right and (b)
takes reasonable care to ensure that no injury is caused to others.5

[19] Applying these principles to the facts, it is common cause that
Redlands Estate has a natural servitude over Woodgrove. As the servient
property, Woodgrove, has to carry the natural water flow from Redlands
Estate. It is also obliged by servitude to receive water from the municipal
stormwater system and allow it to discharge into the canal. Woodgrove is
subject to the terms and conditions in the original Deed of Grant dated
27 July 1855, in force when PADCA took transfer under Certificate of
Consolidated Title T20859/94. One such condition is that ‘[a]ll …
watercourses, authorised by the Corporation running over the land, shall
remain free and uninterrupted . . .’.

[20] It is common cause that the developers of Redlands Estate
altered the natural flow of water onto Woodgrove.  However, the design

2 Digest above fn 1 at 39.3.1.; Williams v Harris 1998 (3) SA 970 (SCA) at 981E-F; Bishop v
Humphries 1919 WLD 13 at 17-18.
3 Digest 39.3.2.; Voet 39.3.2.; Pappalardo v Hau 2010 (2) SA 451 (SCA) paras 11-12.
4 New Heriot Gold Mining Company Ltd v Union Government (Minister of Railways and Harbours)
1916 AD 414 at 421.
5 Barklie v Bridle 1956 (2) SA 103 (SR) at 109-110.

of the stormwater disposal system on Redlands Estate is such that its
water is collected within the estate before being diverted into the
municipal system; some surplus run-off from the Redlands Estate, the
precise amount of which is uncertain, combines with other water run-off
from Old Howick Road, to be diverted into the municipal system. It then
passes into the 600 mm municipal pipe over the two private properties
before discharging into the canal on Woodgrove.

[21] Manifestly, from the design of the system, the respondents do
not discharge any water directly onto Woodgrove. They are also not the
sole source of water discharging directly off George McFarlane Lane and
down PADCA’s concrete driveway. Furthermore, the municipality
approved the stormwater system within Redlands Estate during
construction; the design plan met guidelines in place at the time for
stormwater disposal.  Consequently, the respondents were lawfully
authorised to dispose of their stormwater into the municipal system.
Lastly, in regard to the actio, the developers of Woodgrove knew the
design plan; not only did the developers of both properties use the same
firm of engineers, but also the same guidelines were then in force and
applied to both properties. In anticipation of receiving increased volumes
of water from its own and higher properties PADCA built its canal during
the construction of Woodgrove.

[22] Contrary to the advice it received, PADCA did not line its canal
with concrete. It built the canal in place of the natural watercourse when
construction of Woodgrove was underway, in order to carry the water
discharged by the municipal stormwater system as well as stormwater
from within Woodgrove itself.  So, even if water from Redlands Estate
did not discharge into this canal, scour damage to the canal by other water

is inevitable. However, whether damages arise in these circumstances is
not a question we have to answer. For now, PADCA fails to establish a
clear right entitling it to an interdict on the basis of the actio.

[23] As to whether contiguity was a prerequisite for invoking the
actio, in the cases to which the trial court was referred – Bishop v
Humphries, Barklie v Bridle,  Pappalardo v Hau – the properties shared
common boundaries. However, in De Villiers v Galloway 1943 AD 439
at 444 this court held that alien water may be discharged onto
neighbouring property if legislation or agreement allows. By ‘alien’ the
court was referring to water not from an adjoining land. Roman Law and
Roman Dutch Law cite examples in which contiguity is not a requirement
but that some degree of proximity should exist. 6 Whether contiguity is a
requirement is not relevant in the circumstances of this case in which the
municipality has directed how the respondents should dispose of their
water.

[24] As for PADCA’s alternative claim based on the law of
neighbours, this Court held in Regal v African Superslate (Pty) Ltd 1963
(1) 103 (A) (per Steyn CJ) that our common law must be investigated
fully before considering the English law of nuisance, which has not
replaced our common law. And, importantly, that liability flowed from
our conventional principles of delict. In that case the appellant sought to
prevent slate waste being carried down the river from the respondent’s
farm and being deposited across his land. Even if the actio did not apply,
the developers of Redlands Estate had a duty to comply with the
municipality’s conditions. In fulfilling this duty they acted reasonably. If
the municipality required the respondents to do more, either during or

6 Voet 39.3.2.; Digest 39.3.6.

after construction, it would have directed them accordingly. After all, the
municipality is the authority responsible and accountable publicly for
assessing and managing the water disposal needs of the area. In these
circumstances, PADCA cannot justifiably rely on neighbour law to hold
the respondents liable.

[25] Regarding the exemptions under the Act, the drainage system
that Redlands installed falls within the broad definition of ‘building’
under the Act in that it is a system ‘for the provision of a water supply,
drainage, sewerage, stormwater disposal . . . in respect of the building.’ 7
As such, the municipality had to and did approve plans for it. PADCA
does not suggest that the municipality’s conditions are unreasonable or
even negligent. If they were, then PADCA might have proceeded against
the municipality, which is not cited in this case.8

[26] However, the owner of a building is not exempted
‘from the duty to take care and to ensure that such building be designed, erected,
completed . . . in accordance with the provisions of this Act and any other applicable
law.’9
On 1 October 2008 amended National Building Regulations came into
operation. 10  Regulation R 1(3) enabled the municipality to call on an
owner to submit for approval plans and particulars of a complete
stormwater control and disposal installation for a site in certain
circumstances. These requirements are stricter in that plans have to be
approved first and the evidence was that in the present day the
municipality would require a greater degree of on-site attenuation of

7 Halliwell v Johannesburg Municipality 1912 AD 659 at 669; New Heriot Gold Mining
Company Ltd v Union Government (Minister of Railways and Harbours) 1916 AD 420 at 421.
8 New Heriot Gold Mining Co Ltd v Union Government (Minister of Railways and Harbours) 1916 AD
414.
9 Section 23(b) of the Act.
10 National Building Regulations GN R574, GG 8895, 30 May 2008.

stormwater from a development such as Redlands Estate. Previously, and
when Redlands Estate was being developed the municipality accepted as-
built plans. Seemingly the need for municipalities to be more
interventionist before rather than after building starts is being recognised.

[27] PADCA has not pointed to any provisions of the Act that the
respondents have violated. It relies on the common law but has
established no duty arising under the common law. Nor has it proven that
any rule of the common law has been breached. The appeal is dismissed
with costs, including the costs of two counsel.

D Pillay
ACTING JUDGE OF APPEAL

Wallis JA (concurring)
[28] I have read the judgment of Pillay AJA and agree with her that
this appeal should be dismissed for the simple reason that, whether
PADCA’s case is expressed as lying under the Roman Law actio aquae
pluviae arcendae, or under the more modern aspect of our law of delict
characterised as neighbour law, it must fail for the same reason. The
reason is that the collection and discharge of water from the Redlands
estate into the municipal storm water system, from whence it discharges
into the stormwater canal across PADCA’s property, Woodgrove, was
required by the terms upon which the construction of the Redlands
development was approved by the Umsunduzi Municipality. In those
circumstances it is not open to PADCA to select one of the many sources
from which that stormwater derives and demand that it attenuate the
water emanating from its property, in order to relieve PADCA of the
consequences of the municipality being entitled to discharge stormwater

across Woodgrove.

[29] In view of that simple approach it is unnecessary to formulate
and express final views on several issues that arise from the manner in
which PADCA has formulated its case. However, I think it desirable, lest
there be any misunderstanding, to highlight certain matters not dealt with
in my colleague’s judgment.

[30] Two of those issues arise in relation to the availability of the
actio aquae pluviae arcendae in our modern law. Firstly, like Hurt AJA
in Pappalardo v Hau,11 I have considerable doubts as to its availability in
relation to damage to urban, as opposed to rural, properties. In addition to
the Roman Dutch authorities to which he referred, my reading of the
relevant passages in the Digest suggests that it is a remedy that is
available to the owners of rural properties. Thus for example in D 39.3.17
it is said that:
‘Again it must be understood that this action is not available except when it is a field
that is damaged by rainwater. When it is a building or a town that is damaged, this
action is not valid, but an action can be brought to deny the right of eavesdrip or the
flow of water onto one’s property.’

Further in D 39.3.19 it is said:

‘Cassius also writes that if water deriving from a town building damages either a field
or a rural building, it is an action on a flow of water and eavesdrip that should be
brought.’12

[31] That passage is explicit in saying that the remedy available in

11 Pappalardo v Hau [2009] ZASCA 160; 2010 (2) SA 451 (SCA) para 6.
12 Mommsen, Krueger and Watson (eds) The Digest of Justinian Vol 3 p 396. Voet 39.3.2
(Gane’s translation, Vol 6 p 37) is to like effect in saying that: ‘The action is available to the
owner of a tenement when rain water … does harm on the farm of a neighbor as the result of
an artificial work.’

relation to urban properties is not the actio aquae pluviae arcendae.
There is academic writing that supports this conclusion, 13  as well as
Roman Dutch authority. Voet 39.3.4 says:
‘Action does not cover urban tenement. – The action falls away furthermore if water
is hurtful not to a rural but to an urban tenement, whether it flows down from an
urban or a rural tenement, inasmuch as in that case suit would rather have to be
brought by the action for denying a liability to receive drippings or a stream of rain
water.’

[32] If the distinction between urban and rural tenements is still part
of our law it raises the question of what is an urban and what is a rural
property. 14  That cannot be answered solely by reference to municipal
demarcation in an environment very different from that in which the actio
evolved. Beyond saying that rural properties would not be confined to
those in a local authority area, and that the type of urban environment
where Redlands and Woodgrove are situated would probably not be
regarded as rural for the purposes of the actio, it is undesirable to essay
any definition. All of these questions remain open and nothing in my
colleague’s judgment lends support to the notion that the actio is
available in an urban environment or that, if under Roman and Roman
Dutch law it was not, we should develop the common law to make it
available.

[33] The second issue is the one on which PADCA’s case was
dismissed in the high court, namely, the perceived need for contiguity

13 Paul du Plessis ‘Die gelding van die actio aquae pluviae arcendae in die Suid-Afrikaanse
Reg’ 2000 Fundamina 77 at 79-80. The view of William Smith, William Wayte and G E
Marindin  A Dictionary of Greek and Roman Antiquities (1890) sv aquae pluviae arcendae
actio was that the action only lay for damage to land and not for damage to a town or building.
The authors also say that it was a defence to the actio if the act was done with the permission
of a public authority. Redeleinghuis v Bazzoni 1976 (1) SA 110 (T) held that the distinction
between urban and rural tenements remained part of our law.
14 Pappalardo v Hau para 6, fn 7. Benoni Town Council v Meyer 1961 (3) SA 316 (W) at
318D-H.

between the higher and lower properties. This was not fully argued but
counsel’s attention was drawn to the decision of this Court in Cape Town
Council v Benning,15 where Solomon JA gave a full exposition of the
actio, without suggesting that contiguity was a necessary element thereof.
There are two passages in the Digest that suggest that contiguity may not
be essential in all instances, 16  although the majority of texts are
formulated in terms that deal with contiguous properties. If contiguity is
not essential, there is the difficult question of deciding when two
properties are too remote from one another for any obligation to rest on
the upper property to safeguard against increasing the discharge of water
onto the lower property, especially if that discharge occurs through the
municipal storm water system. Counsel was unable to suggest a solution
when this problem was posed and we need not determine it. The problem
disappears if contiguity is required.  As matters stand it cannot be said
with confidence that contiguity is not a requirement or, if it is not, what
the relevant requirement of proximity would be. 17  That must await
determination on another occasion.

[34] Turning to the claim based on neighbour law this was not fully
developed during the trial, perhaps because in opening the case counsel
for PADCA nailed his colours firmly to the mast of the actio. According

15 Cape Town Council v Benning 1917 AD 315 at 319-321.
16 D 39.3.6 (Mommsen et al op cit p 399) records Ulpian as writing that:
‘Sabinus says that if my neighbour next-but-one carries out some work and water from it flows
down through my immediate neighbour’s property and causes me damage, I can bring an
action against the immediate neighbour or, leaving him out of it, against the neighbour next-
but-one. This view is correct.’
D 39.3.18 attributes to Javolenus the following:
‘If a piece of work which causes rainwater damage is carried out on public land, no action can
be brought. But if the public land intervenes between the site of the work and that of the
damage, an action will be possible.’
17 A J van der Walt The Law of Neighbours (Juta, 2010) 240-241 suggests that for claims
based on nuisance the properties must be situated close together, but not necessarily
adjacent to one another.

to the leading judgment of Regal v African Superslate18 the criteria of
reasonableness in the use of one’s property determines what usage a
neighbour must endure and what need not be tolerated.19 The evidence
showed that the storm water system on Redlands was designed in
accordance with the then existing requirements of the local authority in
order to collect storm water from Redlands and discharge it into the
municipal storm water system. No reason was advanced for saying that
this was unreasonable.

[35] That conclusion obviates any need to consider whether the
criterion of negligence alone suffices for conduct by a neighbour to be
unlawful, or whether a legal duty not to cause harm by negligence is
required and, if so, when that duty arises and the extent thereof.20 Any
person discharging storm water into a municipal storm water drainage
system must be aware of the possibility that the storm water from their
property will be concentrated with other water and may be discharged by
the municipality in a way that causes harm to others. But there is
something illogical in permitting the lower owner who suffers loss as a
result to recover from the upper owner, when they could only recover
against the municipality if the latter was negligent in constructing the
municipal storm water drainage system.21 A different view would mean
that the residents of the municipality could be held liable for discharging
storm water into the municipal storm water system, even though the
municipality could not. In those circumstances, there is much to be said

18 Regal v African Superslate (Pty) Ltd 1965 (1) SA 102 (A).  At 109F-H Steyn CJ specifically
refers to the need for unlawfulness.
19 See also Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others
[2007] ZASCA 167; 2008 (3) SA 134 (SCA) paras 15 to 17 and 21.
20 See J R L Milton ‘The law of neighbours in South Africa’ 1969 Acta Juridica 123 to 269 and
the discussion of this topic and the authorities referred to by Van der Walt, op cit, Chapter 1.
21 Halliwell v Johannesburg Municipality 1912 AD 659 at 669; New Heriot Gold Mining
Company Ltd v Union Government (Minister of Railways and Harbours) 1916 AD 420 at 421.

for the principle that negligence alone is insufficient to support an action
based on neighbour law and an element of unlawfulness is required.
[36] The duty element plays a central role in identifying the
circumstances in which a party will be liable for negligently causing harm
to another.22 The reasonableness of imposing liability in a particular set of
circumstances – something different from the reasonableness of conduct
when determining negligence – is central to this enquiry.23 Sometimes, as
with the conduct of a chicken hatchery adjacent to a residential property,24
or the activities of a golf club in relation to its neighbours, 25 both the
existence of the duty and its extent will be reasonably obvious and the
focus will fall on questions of negligence. In others it will be more
complex, especially where the activity in question is one regulated by
law. That is the present situation. There was no endeavour to explore the
duty element in the present case and it cannot be assumed that Redlands
Estate owed any duty to Woodgrove to avoid causing it damage by the
negligent discharge of stormwater from its property.

[37] The last point that needs to be made is that the trial judge relied
upon various judgments, starting with that of Gregorowski J in Bishop v
Humphries,26 and the passage in which the following was said about the
implications of claims such as these in a developed urban environment:
‘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 servitude which

22 Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 833A; Telematrix
(Pty) Ltdt/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) par 14.
23 Trustees, Two Oceans Aquarium Trust v Kantey & Templar (Pty) Ltd 2004 (3) SA 138
(SCA) para 11. See generally F D J Brand ‘Aspects of Wrongfulness: A Series of Lectures’
(2014) 25 Stellenbosch Law Review 451.
24 De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D).
25 Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others [2007] ZASCA
167; 2008 (3) SA 134 (SCA).
26 Bishop v Humphries 1919 WLD 13 at 17 to 18. The others were Barklie v Bridle 1956 (2)
SA 103 (SR) at 108 to109 and Pappalardo v Hau, supra. To these can be added Green v
Borstel 1940 (2) P.H. M89 (W)

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 allocating
temporary structures thereon or digging it up, and thereby annihilates the natural
arrangement of the soil. The rainwater can no longer flow as it used to flow.’

[38] The claim by the upper owner to discharge water concentrated
on that property by the building activities on it was dismissed because:
‘The Applicant has altered all the old conditions existing on the stand while it was
virgin soil and in a state of nature and it is quite impossible for him to throw a burden
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.’

[39] While the point pertinently made in these passages that urban
development must be a significant factor in dealing with claims such as
those arising in the cases to which the judge referred is clearly correct, it
must be borne in mind that all those cases27 involved the owner of the
upper property seeking to compel the owner of the lower property to
accept a discharge of water that had been concentrated by the
development of the upper property. The present case is the converse of
that, in that it is the owner of the lower property objecting to the owner of
the upper property concentrating stormwater on its property so that there
is an increased discharge of water across the lower property. This
difference was not recognised. If anything, the statement by
Gregorowski J supported rather than undermined PADCA’s case.

_________________________
M J D WALLIS

27 Williams v Harris 1998 (3) SA 907 (SCA) which the judge distinguished involved an
objection by the lower owner to the discharge of stormwater from the upper property.

JUDGE OF APPEAL

APPEARANCES

For Appellant:

A J Dickson SC

Instructed by:
J Leslie Smith & Company Inc,
Pietermaritzburg
McIntyre Van Der Post Attorneys,
Bloemfontein

For Respondent:
A J Troskie SC and P J Wallis
Instructed by:
Venns Attorneys, Pietermaritzburg
Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

29 February 2018

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.

Pietermaritzburg and District Council for the Care of the Aged
(PADCA) v Redlands Development Projects (Pty) Ltd (184/17)
[2018] ZASCA 051  (29 March 2018)

The Supreme Court of Appeal (SCA) dismissed the appeal against a
judgment of the KwaZulu-Natal Division of the High Court,
Pietermaritzburg. The appellant, which owns a lower property, applied to
stop the respondents who own higher properties from disposing of their
stormwater onto the lower property. The respondents were discharging
their stormwater into the municipal stormwater drainage system. Their
water, combined with water from Old Howick Road and other properties,
increased the flow into the watercourse on the appellant’s property. The
Court found that the respondents disposed of their stormwater in
accordance with plans approved by the municipality. The disposal was
lawful. The appellant’s alternative claim based on neighbour law was
unjustified.