THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1269/2017
In the matter between:

BERGRIVIER MUNICIPALITY

APPELLANT

and

RHYNARDT VAN RYN BECK

RESPONDENT

Neutral Citation:
Bergrivier Municipality v Van Ryn Beck (1269/2017) [2019]
ZASCA 38 (29 March 2019)

Coram:
Navsa AP, Zondi, Mathopo and Mocumie JJA and Eksteen AJA

Heard:
28 February 2019

Delivered:
29 March 2019

Summary: Delictual claim for damages – whether in prevailing circumstances
Municipality had a legal duty to take steps to prevent flooding of property – lack of
evidence – negligence, wrongfulness and causation not established.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Saldanha,
Yekiso and Savage JJ sitting as court of appeal):
1 The appeal is upheld with costs.
2 The order of the full bench is set aside and is substituted as follows:
‘The appeal is dismissed with costs.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Navsa AP (Zondi, Mathopo and Mocumie JJA and Eksteen AJA concurring):

[1] When one is told, in isolation, that a rate payer and resident of a small town,
had his house flooded on three occasions encompassing two successive two-year
intervals and sustained ostensible extensive damage to his house, due to the
municipal storm-water drainage system being unable to cope with heavy rainfall, one’s
instinctive reaction, is that the local municipality should be held liable to compensate
such resident for the damage caused by the last flood. That instinctive reaction,
because of the lack of evidence to fix the municipality with liability, dealt with more
extensively later in this judgment, has to give way to the compelling opposite
conclusion.

[2] The question in this appeal is whether the appellant, the Bergrivier Municipality
(the Municipality), established, in terms of the Local Government Municipal Structures
Act 117 of 1998, should be held liable for damages allegedly sustained by the
respondent, Mr Rhynardt Van Ryn Beck, as a result of the flooding, during 2011, of
his residential property, situated at 31 Buitenkant Street, Piketberg, Western Cape (the
Property), at the foothills of the Piketberg Mountain. The property is situated within the
jurisdiction of the Municipality.

[3] At the outset, the trial court (Binns-Ward J), had regard to the issues presented
by counsel on behalf of the parties for adjudication. They were as follows:
‘. . . word die Hof versoek om ‘n bevinding te maak ten aansien van die volgende:

7.1 Die nalatige verbreking al dan nie van Verweerder se regsplig;
7.2 Indien so bevind, of daar ‘n kousale verband is tussen die beweerde skade en sodanige
verbreking van die regsplig;
7.3 Of Eiser nalatig was ten opsigte van sy eie skade en tot welke mate.’1
In respect of negligence and whether the respondent had established a legal duty on
the part of the Municipality, the court held as follows:
‘[N]otwithstanding the sympathy I have for the plaintiff and his family for the trauma and
financial loss that they have experienced as a result of the successive flooding of their home,
I consider that the plaintiff has fallen short of discharging the onus to establish the existence
of the alleged duty in law on the part of the defendant or its negligent breach. In the
circumstances the appropriate order would be one absolving the defendant from the instance
with costs.’

[4] In respect of causation, the following was the comprehensive basis for the
conclusion reached by the trial court:
‘The Plaintiff’s counsel submitted that if the chute constructed by the defendant after the 2011
flood had been built after the 2009 flood the damage to the plaintiff's property would, at the
very least, have been lessened. At first blush the argument might appear attractive, but it does
not bear scrutiny in the context of the evidence, or rather, lack thereof in the particular case.
It may be accepted that the damage to the plaintiff's property occurred as a consequence of
the inability of the catch pit and drainage pipe at the bottom end of De Hoek Street to divert
the volume of water streaming onto De Hoek Street. The water that was not drained into the
catch pit would be that which would be pushed around the corner at the bottom on De Hoek
Street and into the plaintiff's driveway off Buitenkant Street. To ascertain whether the chute
would have made any difference to the extent of the damage to the plaintiff’s property one
would need evidence of the maximum capacity measured in units – say cubic feet of water
per minute – of the catch pit, an informed estimate, measured in the same units, of the volume
of water bearing down De Hoek Street, and also evidence of the maximum capacity of the
chute to divert water that could not be accommodated by the catch pit. Such evidence would
establish whether the amount of water that the combined drainage facility of the catch pit and

1 The court is requested to make a finding in respect of the following:
7.1 Whether there was a negligent breach of a legal duty on the part of the defendant.
7.2 If found that this is so, whether there is a causal connection between the alleged damage sustained
and such breach.
7.3 Whether the plaintiff was himself negligent in respect of the damages he sustained and if so to what
extent. (My translation.)

the chute could not accommodate was materially less than that which in fact probably poured
past the catch pit and round the bend into the plaintiff’s property.
When I put these considerations to the plaintiff's counsel during argument, he submitted that
it was for the defendant to have adduced such evidence. His submission in that regard
appeared to be predicated on an assumption that the evidence that had been led established
what he called “a prima facie case” against the defendant. It is indeed so that if a plaintiff who
bears the onus establishes a prima facie case, an evidential burden falls on the defendant to
lead evidence to rebut it, failing which the prima facie case will be sufficient to establish the
claim. The mere fact that the drainage system was unable to cope with the flood in question
and that the plaintiff's property was damaged as a result does not, however, as I have sought
to explain, amount, without more, to a prima facie case. Nor does the defendant's construction
of the chute and its putting in place the related measures described earlier, without more,
establish that the defendant could by relatively cheap means have done something that would
have effectively averted the harm.’
Consequently, the following order was made:
‘1. Subject to the provisions of paragraph 2, below, the defendant is absolved from the
instance with costs.
2. The defendant is ordered to pay the plaintiff's costs occasioned by its special plea of non-
compliance with the requirements of s 3 of the Institution of Legal Proceedings against certain
Organs of State Act 40 of 2002 and in the associated application for condonation.’

[5] This appeal by the Municipality, with the leave of this court, is directed against
the order of the full bench of the Western Cape Division of the High Court, which
overturned trial court’s order. The full bench made the following order:
‘(1) The appeal is upheld with costs.
(2) The respondent is liable for the proven damages sustained by the appellant during the
2011 flooding. The quantification and the apportionment (if any) of such damages stands over
for later determination.
(3) The respondent is also ordered to pay the costs of the proceedings thus far in the court a
quo.’
The detailed background is set out hereafter.

[6] The respondent had purchased the property in 2005 from a developer who had
acquired the land at the urban edge of Piketberg. The land on which the property is
situated was subsequently zoned for housing development. A house was built on the
property, which the respondent took occupation of during 2006. The Municipality had

provided the respondent with a certificate of occupation in accordance with the
provisions of s 14(1)(a) of the National Building Regulations and Building Standards
Act 103 of 1977.2 The property is located on the south-eastern boundary of the
suburban area at its lowest point at the corner of Buitenkant and De Hoek Streets.
These two streets, which are material to the dispute between the parties, were laid out
before the respondent’s property was developed.

[7] De Hoek Street separates the residential area from farmland that stretches all
the way up the mountain slope. The street has a steep gradient of 45mm:122mm. It
stretches down the mountainside from the main street higher up for a distance of 250
metres before it reaches the respondent’s property. De Hoek and Buitenkant Streets
both slope downwards to the point where they converge at the respondent’s property.
The Municipality had removed part of the curb of the pavement alongside the
respondent’s property in front of his garage to allow vehicular access to the property.

[8] It is common cause that the respondent’s property was flooded on three
separate occasions, namely December 2007, June 2009 and finally during April 2011.3
During 2007 whilst the respondent and his family were away on vacation, Piketberg
experienced a cloudburst accompanied by gale force winds, which led to flooding and
extensive damage to residences and businesses. He was informed of this and
returned home to deal with the effects of the flooding. The respondent testified before
the trial court that a number of rooms of his house were damaged as was his furniture.
His swimming pool had been flooded. He witnessed sheep droppings in the flooded
areas of his house, ostensibly carried there from the adjacent farmlands by floodwater.

[9] The respondent did not take any photographs of the flood damage in 2007. He
testified that in that year, shortly after the flooding had occurred, municipal officials

2 Section 14(1)(a) of the National Building Regulations and Building Standards Act 103 of 1977 reads
as follows:
‘A local authority shall within 14 days after the owner of a building of which the erection has been
completed, or any person having an interest therein, has requested it in writing to issue a certificate of
occupancy in respect of such building –
(a) issue such certificate of occupancy if it is of the opinion that such building has been erected in
accordance with the provisions of this Act and the conditions on which approval was granted in terms
of section 7, and if the certificates issued in terms of subsection (2) and, where applicable, subsection
(2A), in respect of such building have been submitted to it.’
3 The property was sold by the respondent after the close of pleadings.

inspected the property and undertook to take the necessary steps to ensure that the
drainage system would, in future, prevent flood damage. I shall, in due course, deal
with the Municipality’s denials of the alleged undertaking and with the evidence
adduced on its behalf.

[10] As recorded by the trial Judge the extent of the flooding during 2009 and 2011
was captured in photographs taken by the respondent. It is clear that the municipal
drainage system at and near the intersection of Buitenkant and De Hoek Streets had
been completely overwhelmed by the sheer volume of storm-water run-off on both
occasions, with the result that the respondent’s property had been very badly flooded.

[11] The trial court noted that the flooding had caused physical damage to the
building and its appurtenances on each occasion. The respondent, with reference to
the photographs, testified to that effect. The volume of water that entered the property
in 2009 was considerable. The water level against a wall in the backyard reached 0.75
metres above the ground. The force of the water was such as to cause the garage
doors to shift out of their frames. The extent of the flooding in 2011 was severe but not
as severe as in 2009.

[12] In respect of the flooding in 2009, the respondent described how the water had
flowed not only down De Hoek Street but also from the adjacent farms over the
Municipal street catch pits nearest his house and onto the gravel road next to the back
of his house and onto his property. Water had also flowed across his driveway into the
front of his residence and garage. His backyard was flooded as well as his swimming
pool. There was cattle dung on his property, once again indicating that water had
flowed from the adjacent farmlands. The photographs the respondent presented
showed muddied waters gushing over from the farmlands into De Hoek Street and
across the catch-pit in De Hoek Street. Debris from vegetation carried over by flood
waters was visible on the respondent’s property.

[13] The respondent, his father and others who had assisted in an attempt to avert
further flooding, dug a trench on the adjacent farm property to divert the water. It
proved ineffective. Another municipal inspection followed upon the 2009 flooding. The
respondent was adamant that municipal officials once again undertook to do what was

necessary to avert flooding in the future. This included, so he said, improving the
storm-water drainage system and ensuring regular maintenance of catch-pits and
trenches.

[14] According to the respondent, he had regularly contacted municipal officials
thereafter, in an attempt to persuade them to fulfil their ‘undertakings’. In support of
this assertion he produced letters from his attorneys sent in December 2009 and in
February 2010 demanding that maintenance be undertaken. There had been no
response from the Municipality.

[15] In relation to the flooding in 2011 the respondent testified that the water had
flowed onto his property from the upper reaches of De Hoek Street and the farmlands.
The pattern was the same as in 2009. There was vegetation and cattle manure that
had been carried over to his property and there was similar damage to the property as
on the prior occasion.

[16] As noted by the full bench, the respondent, during the trial, tendered a set of
rainfall figures which he had obtained from Agri-Oorsig, an agricultural organisation.
The total monthly rainfall figures for the years 1999-2012 were provided as well as
daily rainfall figures for 2012-2014. This was objected to by the Municipality but
admitted by Binns-Ward J on the basis of the exercise of his discretion, in terms of s
3 of the Law of Evidence Amendment Act 45 of 1998. The statistics indicated that in
December 2007 the total montly rainfall was 40 mm. In May 2009 it was 47 mm and
in April 2011, 33 mm. It must be appreciated that rain can fall intensely in a very limited
time period and that the monthly and daily statistics must be assessed in that light. In
short, rain-fall statistics do not provide a complete or accurate picture of the nature
and intensity of the rain that caused the flooding. I shall deal more fully with this aspect
in due course. It was common cause that in 2007 there had been a sudden cloudburst
followed by intense rainfall accompanied by gale force winds within a short space of
time. In short, the storm that led to the flooding in 2007 could rightly, at least on the
face of it, be regarded as a freak storm.

[17] Mr Werner Simon, a qualified technical engineer who has a National Diploma
in Civil Engineering from the Cape Peninsula University of Technology testified at the

trial on behalf of the respondent. He has extensive practical experience and worked
for the better part of his career as a site agent and surveyor and has experience in the
upgrading and maintenance of roads, canals, storm-water pipelines, paving and
general construction work.

[18] In relation to the flooding complained of, Mr Simon testified that the
Municipality’s drainage system was inadequate to deal with the volume of water that
had fed into De Hoek Street. He stated that blockages within the drainage system
further impeded its effectiveness.

[19] It is common cause that subsequent to the flooding that took place during 2011,
the Municipality effected substantial changes to the storm-water drainage system in
the vicinity of the respondent’s property and particularly in relation to the intersection
of De Hoek and Buitenkant Streets. A single catchment pit was converted into a double
catch-pit. In addition, an open v-chute was constructed to lead water away from the
property. This is what Binns-Ward J was referring to in the passage from the trial
court’s judgment set out in para 4 above. Mr Simon took the view that the improved
system was now adequate to deal with normal rainfall, if it was not obstructed in any
way. In support of his view he pointed out that there had been no flooding during the
rainfall on 13 August 2012 (43 mm), 3 June 2013 (46 mm) and & July 2014 (38 mm).
These are the total monthly figures for each of the respective months. These statistics
accord with those recorded for the days on which the flooding of the respondent’s
house occurred.

[20] According to Mr Simon, when one is dealing with a steep gradient such as that
of De Hoek Street, there is a proven method of reducing the velocity of the flow of the
water, namely, the use of dissipaters built onto the road surface. The material parts of
Mr Simon’s evidence, in respect of how the Municipality ought to have planned to avoid
flooding of residential properties such as the respondent’s, is usefully set out in para
30 of the judgment of the full  bench as follows:
‘[T]hat is a good question you know your design is you actually design your roads and your
services for the one in fifty year flood supposedly. I don’t know if they done that I don’t know
who designed it I don't know who constructed the road at the services but that is what you
use. Obviously you use your history of all your other roads next to it the adjacent roads and

so forth you don’t go from first principles and design everything again, you use what you’ve
got on your system and so forth.
. . .
[D]aar moes al vantevore vloede gewees het, iemand moes bewus gewees het dat daar water
afkom maar nee ek sou nie. Die kundiges wat dit ontwerp het moes 'n bietjie hulle werk beter
gedoen het . . . dink ek . . . ‘n fantastiese idee want dit sal in die toekoms baie skade – ek sal
nie sê daar sal nie weer skade wees nie, maar dit sal baie van die skade in die toekoms
verhoed. That’s taking our surface water away out of the road reserve.’4 (My emphasis.)

[21] Mr Simon’s evidence, at first blush, indicates that he was of the view that the
flooding in 2009 and 2011 depicted in the photographs and testified to by the
respondent, could be regarded as a one-in-fifty-year flood, which is the standard he
testified that municipalities and development actors are obliged to adhere to and plan
for. A careful examination of the evidence, however, reveals that Mr Simon accepted
that, where you have floodwater running down the mountain side from different
directions down a steep gradient to the extent testified to, the storm-water drainage
system that was in place, would be overwhelmed. He accepted that thunderstorms
could cause a greater volume of rain to fall within a very limited period and that too
would have a severe impact on the capacity of the storm-water drainage system to
cope. Mr Simon readily accepted that the ability of a drainage system to cope with a
downpour has to be seen against the intensity of the flow of the water at a given time.
So, for example, rainfall over a shorter period with high intensity would have greater
impact on the storm-water drainage system. He appears to have accepted that the
mountain-side fire that occurred shortly before the last flood, would have impacted on
the flow of the water on the basis that there would be less vegetation to decrease the
velocity of the flow of the water. The evidence adduced on behalf of the Municipality,
referred to later in this judgment, was that there had been such a fire. Added to that is
the velocity of the water as it made its way down the steep gradient. Furthermore, Mr
Simon’s evidence in relation to whether the municipality planned for a one-in-fifty year
flood referred to in para 20 above was, at best, equivocal.

4 There must have been floods before. Someone must have been aware that water would come down
from there, but no, I would not. The experts who designed it should have done their work a little
better…I think…a fantastic idea because it would prevent such damage in future. (My translation.)

[22] As to the planning and the steps the Municipality ought to have taken, the
following are the material parts of Mr Simon’s evidence:
'Normale omstandighede, ja. Maar ons het 'n – ek weet nou nie die geskiedenis van watter
datums en watter jare nie, maar jy het twee vloede gehad, en jou eerste vloed wat plaasgevind
het in 2009, het vir jou tog 'n aanduiding gegee daar is 'n probleem. En twee jaar later het jy
weer nog 'n vloed gehad, wat sê daar is weer 'n probleem. So dink u nie dat daar moes
daadwerklik werk gemaak geword het deur die owerhede en sê, luister ons het 'n probleem in
die area, kom ons sorteer dit uit voor die volgende vloede. Wat hulle wel gedoen het na die
tweede vloed, is daar verbeterings aangebring.'5

[23] Mr Simon could not, in the absence of more detailed available information
concerning the rainfall during the flood periods, determine the quantity, in cubic metres
or by any other measure, of water that the storm-water drainage system, at relevant
times, had to cope with, nor was the court afforded any insight into what the velocity
of the water was as it careered toward the respondent’s house. In relation to what is
set out in para 19 above and taking into account what is set out at the beginning of
this paragraph, one is unable to conclude what the true classification of the floods in
question were, nor is one any the wiser about what kind of storm-water drainage
system or adaptations would be required to avert floods of the kind experienced by the
respondent. Even Mr Simon’s evidence concerning the cost of R1 million that might
be incurred to address the problem, is less than convincing. Its viability is affected, not
only by the factors set out above but, also, by his less than emphatic assertions in that
regard, more particularly on whether it would be the complete answer to potential
future flooding. It also appears that at the time of the 2011 flood, blockages in the
municipal storm-water drainage system was caused by vegetation being swept into it
from the farmlands by the ferocity of the flow of the water.

[24] The Municipality tendered evidence in support of its case, that it could not be
held liable for the flooding and that to do so in the circumstances of the case, would
be to impose too heavy a burden on municipal authorities country-wide, which it

5 Normal conditions, yes. But we had a – I don’t know the history on which dates and during which
years, but you had two floods, and the first flood you had in 2009, surely must have given you an
indication that there is a problem. And two years later you had yet another flood, which tells you again
that there is a problem. Would you not consider that the authorities had to make work of it and say,
listen, we have a problem in the area, let us sort it out before more flooding. What they did do, was to
make improvements after the occurrence of the second flood. (My translation.)

substantiated, our law did not countenance. The Municipality also took the view that
the flow from the adjacent farmlands fell within the jurisdiction of another authority, the
West Coast District Municipality, and it was the latter’s responsibility and it could thus
not be held responsible for the damage caused.

[25] Mr Johannes Breunissen testified in support of the Municipality’s case. At
material times he had been the Municipality’s manager of civil services. He had
accumulated twenty two years’ experience with the Municipality. Mr Breunissen had
no involvement in dealing with the aftermath of the 2007 and 2009 flooding of the
respondent’s property. He did, however, inspect the respondent’s property after the
flooding in 2011.

[26] It was Mr Breunissen who, after the 2011 flood, had been responsible for
effecting the improvements to the drainage system in the vicinity of the respondent’s
property. The double catch-pit and the v-chute were his idea. He described these steps
as ‘short-term planning’. Mr Breunissen stated that the cost of upgrading the drainage
system for the whole of Piketberg would be in the region of R200 million. That was
beyond the Municipality’s means and all it could do was to deal with ‘hotspots’ as best
it could, within budgetary constraints. Piketberg, he explained, was a small
municipality with a small rates base.

[27] According to Mr Breunissen the drainage system was well maintained. He
testified that there were other low-lying areas in Piketberg which were even more
susceptible to flooding, because of water flowing down the mountainside. He
explained that a mountain-fire during April 2011 had contributed to the rapidity of the
water flow in that there had been no vegetation to impede the flow of the water. He
testified that the adjacent farmlands fell within the jurisdiction of the West Coast District
Municipality and blamed the farmers for not cutting and maintaining adequate contours
on their farmland along the mountainside in order to avoid flooding.

[28] In relation to the improvements made to the drainage system in the vicinity of
the respondent’s property, Mr Breunissen said the following:

‘Ek sê nie dit is die oplossing nie, wat ek wel sê is hy kan weer oorstroom. Daai kanaaltjie kan
ook geblok word met 'n tak of iets wat daar afkom, hy kan toemaak en hy kan weer oorspring.
So dit is ‘n sagte oplossing wat net gedoen is, dis nie 'n permanente oplossing nie.’

[29] Mr Breunissen was adamant that he had given no undertakings to the
respondent, after the 2011 flooding of his property, in respect of improvements to be
made to the drainage system. According to him, the latest improvements were made
at minimal cost to the Municipality as it entailed using existing municipal stock of bricks,
sand and cement.

[30] Responding to Mr Simon’s claim that an underground pipeline costing R1
million would go a long way to avoiding a repeat of the flood damage, Mr Breunissen
said that the Municipality simply did not have the money to install such a pipeline. He
testified that the Municipality also had other priorities such as informal housing
settlements, which were even more susceptible to flooding.

[31] Mr Breunissen testified that after the 2007 flash-floods the Municipality had
commissioned a hydrological study and that a master plan was then developed. The
plan would lead to a more detailed design followed by implementation. It was not
executed because of a lack of funds. The master plan, he explained, identified
problems in the storm-water drainage system but did not provide details. Mr
Breunissen could not say whether the storm-water drainage system in the vicinity of
the respondent’s property was mentioned in the master-plan. The master-plan did not
form part of the Municipality’s discovered documents.

[32] Mr Breunissen confirmed that there had been no further flooding but that was,
so he said, because there had been no further storm-water that had come over the
farmlands. He claimed that the West Coast District Municipality had also effected
improvements within their jurisdiction. They had repaired a retention wall on a farm
and opened up trenches for the water to flow towards the N7 drainage system. It
appears from Mr Breunissen’s testimony that the total budget for Piketberg was
approximately R6 million. Thus, the R1 million Mr Simon testified would be required to
provide a possible solution for intense rain that might fall in Piketberg, has to be seen
against that background.

[33] The last witness to testify was Mr Johannes Engelbrecht, employed as a project
engineer by the Municipality. He recalled the flood in 2007. He was informed that
various buildings in the town had been flooded and had seen the extensive damage
that had been done, with one building's roof having been blown off. A disaster had
been declared. Additional staff and even the police were employed to deal with the
aftermath. He visited the respondent’s property shortly after the flooding had occurred.

[34] Mr Engelbrecht conceded that the respondent had called at the Municipality’s
offices on several occasions to complain about the damage to his property. He had
merely referred the respondent to the Municipality’s insurance department. He was
emphatic in his denial of undertakings made to the respondent about improvements
to be effected to the drainage system in the vicinity of his house. Under cross-
examination he testified that all he had said was that they were waiting for finance to
upgrade the roads.

[35] In relation to the flooding in 2009 Mr Engelbrecht testified that accompanied by
Mr Arthur Willemse he had visited the respondent’s property shortly thereafter, and
had traced the flow of the water. The remnants of vegetation on the respondent’s
property indicated the flow from the adjacent farmlands. He had not visited the
property in 2011 because he had been busy elsewhere. He had not been involved in
effecting the improvements to the drainage system in the vicinity of the respondent’s
home after the 2011 floods. He accepted that the Municipality had been provided with
photographs by the respondent after the 2011 flood. He had no knowledge of
photographs having been provided in relation to the flooding in 2009.

[36] Mr Engelbrecht testified that De Hoek Street did not feature at all in the
hydrological report referred to above. According to him, maintenance reports received
by the Municipality indicated that regular maintenance of the drainage system had
been conducted.

[37] The relevant and material parts of the reasoning and conclusions of the trial
court are set out in paras 3 and 4 above. The full bench was cognisant of the repeated
warnings by this court, in cases such as Cape Town Municipality v Bakkerud 2000 (3)

SA 1049 (SCA) that courts should be cautious not to expose Municipalities to
unrealistic expectations in relation to an asserted duty to act, and that care should be
taken to ensure that plaintiffs prepared and conducted their cases with diligence so as
to discharge the evidentiary burden they bore. It had regard to the evidence that the
drainage system in the vicinity of the respondent’s house was hopelessly inadequate
to deal with the floodwaters in any of the years in question. The full bench took into
account that it must have been clear that the water in the first two floods had emanated
from the farmlands and that this had repeatedly been brought to the attention of the
Municipality but that nothing had been done to address his concerns. It pointed to what
is considered to be Mr Simon’s essentially un-contradicted evidence that the standard
to be met by Municipalities and developers is a one-in-fifty-year flood.

[38] At the end of para 53 of the judgment of the full bench the following appears:
‘In my view, there was sufficient evidence on record to have placed a legal duty on the
respondent municipality to have ensured that its drainage system was able to cater for flood
waters that would have emanated from the adjacent farmlands. It had not done so.’

[39] The full bench went on to consider whether the trial court was correct in
concluding that there was a paucity of evidence in relation to whether the
improvements made after the 2011 flooding would have made a material difference. It
said that a properly qualified expert could have considered the improvements against
an educated estimate of the water cascading into the drainage system as improved
after the 2011 flood and have been of assistance to the court. It recognised that the
respondent had failed to present such evidence.

[40] However, with reference to the decision of the Constitutional Court in Lee v
Minister of Correctional Services [2012] ZACC 301; 2013 (2) BCLR 129 (CC); 2013
(2) SA 144 (CC) the full bench held that there was sufficient evidence to find that there
was a duty to reduce the risk of damage. The full bench went on to state the following:
‘It was apparent that given the prior incidents of flooding at the appellant's property the
respondent should have appreciated the risk of flooding at the property. On its own version
however, it took no steps prior to the improvements post the 2011 flood to prevent flooding at
the appellant’s property. With regard to the adequacy of the improvements made by the
respondent in casu, on the recommendation of its own senior civil engineer Breunissen,

Simons' evidence was to the effect that it would have significantly improved the situation in
the event of the flood of a similar nature of 2009 or 2011. Despite the almost ambivalence and
prevarication of both Breunissen and Engelbrecht, it was the very comment of Breunissen that
was significant, who accepted that the improvements would have “grootendeels” made an
impact on the flood waters. They both maintained though that the improvement had not been
tested, despite the claims by the appellant himself that there had been heavy rains as
evidenced in the rainfall statistics since 2011. Significant in my view was that no expert
evidence had been called by the respondent to rebut the opinion of Simon other than the self-
serving views of its own employees. The witnesses for the respondents also claimed that there
had been improvements made on the adjacent farms and that could well have contributed to
the lack of further flooding after 2011. Moreover, counsel for the appellant, correctly in my
view, pointed out that any expert evidence lead by either of the parties with regard to the
capacity of the improvements would have been based to a large measure on speculation as
it would have depended on the accuracy of information available with regard to the intensity
of the flooding at the particular time and based on the amount of rainfall over a specific period
of time. The amount of water that flowed into De Hoek Street would also depend on the amount
of water that would have dissipated on the farmlands. If anything, such expert evidence would
have been no more than a general indication as to the amount of water that would have
entered De Kort Street from the farmland. What is however also significant is the fact that
Breunissen himself had recommended that a second catch-pit with a deeper access to it be
provided and an open v-chute which was apparent from the photographs would have on the
basis of common sense allowed for a greater amount of water to have been drained out of De
Kort Street to the trenches running toward the N7. That, coupled with a raised driveway in
front of the appellant's property would in my view and on the evidence, have had a material
impact on the amount of water that would have flowed into the appellant's property in 2011.
Mindful too that the flooding in 2011 was significantly less than that of 2009 as testified to both
by the appellant and Breunissen himself.
In application of the considerations referred to in the majority decision in Lee, I am of the view
that the concerns raised by the court a quo with regard to the nature of further expert evidence
that the appellant was required to have tendered was not entirely warranted. The appellant, in
my view had sufficiently established with the evidence of Simon and the very concessions by
Breunissen and Engelbrecht that would have materially impacted on the 2011 flood.
Furthermore, in application of the requirements set out by Holmes JA in Kruger v Coetzee,
referred to above, I am satisfied that the conduct of the respondent was negligent in having
failed to have taken reasonable and the very cost effective steps such as the improvements it
made in 2011, after the flood in 2009.'

[41] Consequently, the full bench made the order referred to at the commencement
of this judgment. It is against that order and the conclusions on which it was based
that the present appeal is directed. The full bench’s reliance on what it considered to
be Mr Breunissen’s concession that the recent improvements would ‘grotendeels’
have made a difference, has to be seen in the light of the concluding part of his
evidence under cross-examination. The following is the material exchange containing
that evidence:
‘En daarom stel ek dit aan u, as dieselfde ding gedoen is in 2007 en 2009, wat iemand sy
werk gedoen [het] soos wat u dit gedoen het in 2011, dan mag ons dalk nie die probleem
gehad [nie], want u stelsel is definitief beter as wat die ou stelsel was. - - - Dit is – dis nie waar
nie, dit kan nogsteeds oorstroom het, niemand het daai stelsel getoets [soos dit was nie].
Ek sal die res dan maar aan argument oorlaat. U Edele, ek het geen verdere vrae nie.’6

[42] The respondent had received compensation from his insurance company in
relation to the 2007 and 2009 floods. Thereafter his insurers were no longer willing to
provide him with insurance cover. He was, of course, not precluded, provided there
was no other bar, from suing the Municipality for damages.7 The trial court correctly
recorded that it was not entirely clear from the respondent’s particulars of claim
whether he was claiming damages in respect of the flooding that occurred during 2007
and 2009. Before us, counsel on his behalf, submitted that he was claiming damages
only in respect of the flooding that occurred during 2011. It bears repeating that the
respondent’s particulars of claim alleged a breach of a legal duty by the Municipality,
in that:
‘[N]ie voldoende dreineringstelsels te voorsien wat stormwater doeltreffend kan verwyder nie
en/of, nie die bestaande dreineringstelsels voldoende in stand te hou nie en/of; nie betyds
maatreëls in plek te stel om herhaling van oorstromings te voorkom nie.’8

6 And therefore I put it to you that if the same thing had been done in 2007 and 2009, where someone
had done his work like you did it in 2011, then we might not have had that problem, because your
system is definitely better than the old system used to be. – That is – it is not true. It could still have
flooded, no-one tested that system as it was. I will leave the reset to argument. Your honour, I have no
further questions. (My translation.)
7 In this regard, see the discussion on res inter alios acta in J Neethling and JM Potgieter Neethling-
Potgieter-Visser Law of Delict 7 ed (2014) at 239 para 4.8.2.
8 Drainage systems that could effectively remove storm-water were not provided; and/or were not
properly maintaining the existing storm-water drainage systems; and/or precautions were not timeously
put in place to prevent repeated flooding. (My translation.)

[43] The respondent’s claim against the Municipality is essentially one based on
omission. As pointed out by J Neethling and JM Potgieter Neethling-Potgieter-Visser
Law of Delict 7 ed (2014) at 58-59, with reference to the decision of this court in
Minister of Safety and Security v Geldenhuys 2004 (1) SA 515 (SCA) at 528 that, as
a general rule, liability follows only if the omission was in fact wrongful, and this will be
the case only if (in the particular circumstances) a legal duty rested on a defendant to
act positively to prevent harm from occurring and that a defendant failed to comply
with that duty.

[44] While conceptually the inquiry as to wrongfulness might be anterior to the
enquiry as to negligence, it is equally so that without negligence the issue of
wrongfulness does not arise, for conduct will not be wrongful if there is no negligence.
Depending on the circumstances, it may be convenient to assume the existence of a
legal duty and to consider, first, the issue of negligence. It may also be convenient
when the issue of wrongfulness is considered first, to assume negligence. So, too, in
a particular case one might assume both wrongfulness and negligence and consider
causation first.9

[45] Before us, counsel for both parties were of the view that the case turned on the
question of wrongfulness. In my view, the problem faced by the respondent is that the
evidence presented fell short of establishing any one of the aforesaid elements so as
to land the Municipality with delictual liability. The trial court was rightly concerned
about the paucity of evidence.

[46] To begin with, no evidence was tendered to explain the concept of a once-in-
fifty-year flood, which, according to Mr Simon, is the standard which municipalities
have to adhere to in designing and establishing storm-water drainage systems. Mr
Simon referred to it without explaining it. A search of internet sites for one’s own
edification, reveals that it does not translate simply into a flood that occurs only once
in 50 years, but is one that has a two per cent probability of occurrence in any given

9 See Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA) at 499B-D, Hawekwa Youth Camp &
another v Byrne [2009] ZASCA 156; [2010] 2 All SA 312 (SCA); 2010 (6) SA 83 (SCA) at 91F and Van
Vuuren v Ethekwini Municipality [2017] ZASCA 124; 2018 (1) SA 189 (SCA) para 18. See also L T C
Harms Amler’s Precedents of Pleadings 9 ed (2018) at 270.

year.10 The trial court was not provided with the legal basis for a one-in-fifty-year flood
being the standard that municipalities have to plan for. Simply put, the trial court was
not told whether it was based in legislation or in provincial or national government
policy. Neither do we know the key aspects of the standard, including its scope and
content.

[47] We have no evidence to indicate the measure of the intensity of the rainfall that
would constitute such a flood, either in cubic metres per second or measured in any

10 A 100-year flood is a flood event that has a 1% probability of occurring in any given year. The 100-
year flood is also referred to as the 1% flood, since its annual exceedance probability is 1%, or as
having a return interval of 100-years. The 100-year flood is generally expressed as a flow rate (m³/s).
Based on the expected 100-year flood flow rate in a given stream or river, the flood’s water level can
be mapped as an area of inundation. The resulting floodplain map is referred to as the 100-year
floodplain, which may be very important in how close to the stream buildings or other activities are
allowed. A common misconception exists that a 100-year flood is likely to occur only once every 100
years. In fact, statistically, there is an approximately 63.4 % chance of one or more 100-year floods
occurring in any given 100-year period. The Probability (Pe) of one or more of a specifically sized flood
occurring during any return interval, exceeding the specifically sized flood severity, can be expressed
as:

…where Pe is the probability, T is the return interval of a given storm (e.g. 100-year, 50-year, 20-year,
etc.), and n is the number of years. The exceedance probability Pe is also described as the natural,
inherent, or hydraulic risk of failure when, e.g. when referring to dams, bridges, etc. However, the
expected value of the number of 100-year floods occurring in any 100-year period is 1. In other words,
100-year floods have a 1% chance of occurring in any given year (Pe = 0.01), 10-year floods have a
10% chance of occurring in any given year (Pe = 0.1), 50-year floods have a 2% chance of occurring in
any given year (Pe = 0.02), etc. The percent chance of an x-year flood occurring in a single year can be
calculated by dividing 100 by x. (http://aed.co.za/wp/flood-lines/ accessed 19 March 2019.)
See also Zelda Els’ thesis for the degree of Master of Natural Sciences at Stellenbosch University at
17.
(http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&ved=2ahUKEwj1vdLH5Y3h
AhUqUBUIHRKbD8MQFjAKegQIARAC&url=http%3A%2F%2Fscholar.sun.ac.za%2Fbitstream%2Fha
ndle%2F10019.1%2F17803%2Fels_data_2011.pdf&usg=AOvVaw0mE1xTMW_44_LnIH2kZ_K3
accessed on 19 March 2019.), and the National Oceanic and Atmospheric Administration and the
United States Geological Survey, which are stated to be her sources.
Of course, none of these parameters, assuming them to be accurate and applicable, were explored
during the trial.

other way. On the evidence presented in the court below, we have no way of knowing
what type or extent of storm-water drainage system would be required in order to ward
off the damaging effects of a one-in-fifty-year flood or of the floods in question. From
Mr Simon’s evidence, highlighted in para 21 above, one is unable to say whether the
pre or post 2011 storm-water drainage system in front of the respondent’s house was
designed to handle a one-in-fifty-year flood. Furthermore, on the limited statistical and
other evidence, we have no way of knowing whether the rainfall and the consequent
flow and velocity of the water leading up to the flood on any one of the three occasions
was less or greater than would be required to qualify as a one-in-fifty-year flood. What
we do have, is Mr Simon’s evidence that he could not say whether the improved storm-
water drainage system effected after the 2011 flood, would have avoided the flood
damage on any one of the three occasions. His evidence about what would be required
to avert the damage is also unclear. We also have no idea of the likely cost of a storm-
water drainage system in the vicinity of the respondent’s house that would ward off
damage such as that caused by the flood on each one of the three occasions.

[48] It is for a plaintiff to allege and prove the defendant’s negligence.11 The onus is
on a plaintiff to establish that a reasonable person in the position of the defendant:
(a) Would foresee the reasonable possibility that the conduct (whether an act or
omission) would injure another person’s property and cause that person patrimonial
loss,
(b) would take reasonable steps to guard against such occurrence, and
(c) that the defendant failed to take such reasonable steps.12

[49] It is now well established that, whether in any particular case, the precautions
taken to guard against foreseeable harm can be regarded as reasonable or not
depends on a consideration of all the relevant circumstances.13 As stated above, the
2007 flood was one that everyone appears to have accepted as having been the result
of a freak storm, causing wide-spread devastation. In the absence of any reliable data
in relation to the nature and intensity of the storm in respect of 2011, it is difficult to
see how the respondent could discharge the onus. The obvious questions that arise

11 Eversmeyer (Pty) Ltd v Walker & another 1963 (3) SA 384 (T) and also Amler op cit fn 8.
12 Kruger v Coetzee 1966 (2) SA 428 (A) and Amler op cit fn 8.
13 Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) at 1203.

are, what in these unknown circumstances could reasonably be foreseen and what
reasonable steps could have been taken to prevent the flooding. These questions
were not addressed.

[50] As to wrongfulness, it is determined objectively, taking into account all the
relevant facts and circumstances and the consequences that ensued.14 The general
norm to be employed in determining whether a particular infringement of interest is
unlawful, is the legal convictions of the community. In Lee, the Constitutional Court
referred with approval to the decision of this court in Minister van Polisie v Ewels 1975
(3) SA 590 (A), where it was held that our law had reached the stage of development
where an omission is regarded as unlawful conduct when the circumstances of the
case are of such a nature that the legal convictions of the community demand that the
omission should be considered wrongful.15

[51] When the circumstances presented are as vague as described above and
particularly where the Municipality is restricted by budgetary and sociological concerns
and where it has demands in relation to indigent, informal settlement communities,
one might rightly ask how a court can hold that the legal convictions of the community
compel the conclusion that the Municipality should be held liable. The trial court, with
reference to the decision of this court in Bakkerud, was rightly concerned about fixing
local authorities with liability on a blanket basis and about being cautious in imposing
too onerous a duty on such authorities. It considered the very limited budget of the
Municipality and took into account the greater need to deal with the plight of informal
settlement communities in relation to the consequences of flooding. In my view, the
full bench erred in being too dismissive of such concerns.16 This should not be seen
as municipalities being given licence to ignore fulfilling their obligations to residents
and justifying it by merely asserting budgetary constraints.

14 See Neethling-Potgieter fn 6 at 33. See also Steenkamp NO v Provincial Tender Board, Eastern
Cape 2007 (3) SA 121 (CC).
15 See also the discussion in Neethling-Potgieter fn 6 at 36-37.

16 As to the interplay of factors to be taken into account in defining unlawfulness, see Neethling et al at
73 et seq and especially at pages 76-77. In includes a consideration of preventative measures that
could be taken and the probability of success of those measures and whether the public interest would
be served by imposing legal duty as well as considering whether a multiplicity of actions could result.

[52] It must be borne in mind that it was not the respondent’s case that the building
plans in relation to his property ought not to have been approved, since he lived at the
confluence of two flood water channels, at the foot of a very steep gradient, and/or
that the developer and the Municipality ought, in light thereof, to have conferred and
agreed on design measures to avoid flood damage of the kind that occurred.17 I
interpose to state that it does not appear that any of the respondent’s neighbours
suffered flood damage of the kind experienced by him. That, however, was not the
case the Municipality was called upon to meet.

[53] Lastly, the trial court held that, on the evidence, the respondent had failed to
show that the Municipality could, by relatively cheap means, have brought about
improvements to the storm-water drainage system that would have averted the flood.
As stated above, the paucity of evidence goes beyond that conclusion. One is left with
no idea of the intensity of the rain that caused the flood and, further, what it would
take, in the circumstances, if anything, to avoid the consequences suffered by the
respondent. The reliance by the full bench and the respondents before us on paras 44
and 46-47 of the majority decision of the Constitutional Court in Lee is misplaced. The
Constitutional Court, in that case, was critical of this court’s too strict adherence to
logic in its approach to causation and postulated that certainty is not required but that
a plaintiff only had to establish that the wrongful conduct was probably a cause of the
loss, which dictated a common sense approach. Having regard to the paucity of
evidence and what is stated above, the dicta referred to do not assist the respondent.

[54] Like the trial court, we too have a degree of sympathy for the respondent. It is
likely that he was restricted in the presentation of his case by financial considerations.
However, he did employ an expert who, judging by his qualifications and experience,
ought to have been able, if so directed, to place sufficient evidence at the disposal of
the trial court to enable a more informed decision.

17 In this regard, see the policy of Cape Town City Council, para 10.3 and 10.4 in relation to building
plan
approvals
involving
steep
gradients.
This
too
was
not
explored.
(https://www.westerncape.gov.za/assets/departments/transport-public-
works/Documents/floodplain_and_river_corridor_management_policy.pdf accessed 19 March 2019).

[55] For all the reasons set out above, it follows that the appeal must succeed. The
following order is made:
1 The appeal is upheld with costs.
2 The order of the full bench is set aside and is substituted as follows:
‘The appeal is dismissed with costs.’

___________________
M S Navsa
Acting President

Appearances:
For the Appellant:

H E de la Rey

Instructed by:

Visagie Vos Attorneys, Cape Town

E G Cooper Majiedt Inc., Bloemfontein
For the Respondent

J A B Nel

Instructed by:

Le Roux Attorneys, Port Owen

Honey Attorneys, Bloemfontein