Lane and Others v Emfuleni Municipality (2011/40551) [2017] ZAGPJHC 215 (19 July 2017)

The case involves a dispute between the plaintiffs, Allan Roger Lane, Susan Claire Lane, and Valerie Ann Harbot, and the defendant, Emfuleni Municipality, over damage to a residential property located on the waterfront of the Vaal River. The plaintiffs are joint owners of an undivided one-third share of the property, which has been in their family for over 50 years and used as a holiday home.

Key background facts include:

1. Property Description and History:
The property is located on the waterfront of the Vaal River, running from […] Avenue at the top to the river at the bottom. Until 2008, the property had a residential dwelling located approximately 30 meters from the river, referred to as "the old dwelling." The plaintiffs inherited the property from the second plaintiff’s father.

2. Events Leading to the Dispute:
In 2005/2006, residents, including the plaintiffs, formed a Residents Roads Committee to address complaints and enhance real estate value by tarring the roads. The plaintiffs and other residents financially contributed to this project, which was undertaken by the defendant. The roads were surfaced and tarred in 2007, and a stormwater drain of approximately 450mm in diameter was installed at the corner of I. Road and P. Avenue. This drain daylighted on the property of Mr. Alan Green (stand 63), discharging water onto his property rather than directly into the river.

3. Flooding and Damage:
After the completion of the road construction in 2007, the plaintiffs noticed water seeping from the right-hand side along the fence of their property, gradually moving towards the old dwelling. By late 2007, water overspilled the edges of the channel created after heavy rains, leading to a dispute between Mr. Green and the defendant. Mr. Green blocked off the drainage system, exacerbating the flooding issue. In December 2008, the plaintiffs demolished the old dwelling due to consistent flooding and water seepage, which rendered it uninhabitable and dangerous. They subsequently built two separate dwellings on stilts on the upper section of the property.

4. Legal Action:
In November 2011, the plaintiffs instituted an action against the defendant, alleging that the tarring of the roads and the inadequately designed and constructed stormwater drainage system caused the flooding and damage to their property. The plaintiffs claimed that the stormwater drainage system was ineffective and inefficient, failed to disperse accumulated water without causing damage, and that the defendant failed to exercise reasonable care in its construction. The defendant disputed liability, arguing that the claim had prescribed and that the plaintiffs failed to give timely notice of the claim as required by Section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

5. Expert Evidence and Findings:
Expert witnesses, including Dr. Zvi Ofer, a geotechnical engineer, and Mr. Tobias, a building project manager and engineer, provided evidence on the probable cause of the flooding. Dr. Ofer conducted investigations and found that the introduction of impermeable surfacing (tarring) increased water surface flow, and the stormwater drain was inadequately designed and constructed. The experts agreed that the stormwater drain should have been constructed to discharge water directly into the river rather than onto Mr. Green’s property.

6. Procedural Matters:
The court determined the merits of the claim separately from the quantum of damages. An application for an inspection in loco was refused after expert evidence was heard. The court held over the decision on the defense of prescription and the application for condonation for failure to give notice of legal proceedings until the end of the trial. The case ultimately revolves around whether the defendant's actions in designing and constructing the stormwater drainage system were negligent and caused the flooding and damage to the plaintiffs' property.

The ratio decidendi, or core legal principle underlying the decision in this case, revolves around the determination of negligence and the duty of care owed by the defendant, Emfuleni Municipality, in the design and construction of the stormwater drainage system following the tarring of the roads. The court's decision is based on the following key legal principles:

1. Duty of Care and Negligence:
The defendant, as a municipal authority, had a legal duty to design and construct an adequate and efficient stormwater drainage system to prevent foreseeable harm to the plaintiffs' property.
The court applied the test for negligence as formulated in Kruger v Coetzee, which requires that a reasonable person in the position of the defendant would foresee the reasonable possibility of their conduct causing harm and would take reasonable steps to prevent such harm. The defendant failed to take such steps.

2. Wrongfulness of Omission:
The court considered the principles regarding wrongful omissions, as stated in Hawekwa Youth Camp and Another v Byrne. The defendant's omission in failing to properly design and construct the stormwater drainage system was deemed wrongful because public and legal policy considerations required that such an omission, if negligent, should attract legal liability for the resulting damages.

3. Causal Connection:
The court found a causal connection between the defendant's wrongful act (the inadequate and inefficient design and construction of the stormwater drainage system) and the harm suffered by the plaintiffs (flooding and damage to their property). The court applied the "but-for" test to determine factual causation, concluding that but for the defendant's negligence, the plaintiffs' property would not have been damaged.

4. Prescription and Notice Requirements:
The court addressed the issue of prescription under Section 12(3) of the Prescription Act, determining that the plaintiffs did not have the requisite knowledge of the facts giving rise to the claim until January 2010, and thus the claim had not prescribed. The court also considered the plaintiffs' failure to provide timely notice under the Institution of Legal Proceedings Against Certain Organs of State Act (ILPACOS) but granted condonation for the late notice, given the unique circumstances of the case and the short delay involved.

In summary, the ratio decidendi of the case is that the defendant, Emfuleni Municipality, was negligent in its duty to design and construct an adequate and efficient stormwater drainage system, which directly caused the flooding and damage to the plaintiffs' property. The court held the defendant liable for the plaintiffs' damages, and the claim was not barred by prescription or procedural non-compliance.

The court relied on several key cases in its reasoning process. Here are the case laws with their citations:

1. Kruger v Coetzee:
The court applied the test for negligence as formulated in this case. The test requires that a reasonable person in the position of the defendant would foresee the reasonable possibility of their conduct causing harm and would take reasonable steps to prevent such harm.
Kruger v Coetzee 1966 (2) SA 428 (A).

2. Hawekwa Youth Camp and Another v Byrne:
The court considered the principles regarding wrongful omissions, which state that negligent conduct in the form of an omission is not regarded as prima facie wrongful unless there is a legal duty to act.
Hawekwa Youth Camp and Another v Byrne 2010 (6) SA 83 (SCA).

3. Municipality of Cape Town v Bakkerud:
The court referenced this case to highlight that a municipality does not enjoy immunity in relation to a negligent act or omission.
Municipality of Cape Town v Bakkerud 2000 (3) SA 1049 (SCA).

4. International Shipping Co (Pty) Ltd v Bentley:
The court used this case to explain the two distinct enquiries involved in causation: factual causation and legal causation.
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A).

5. Linksfield v Michael:
The court referenced this case to emphasize the importance of logical reasoning in evaluating expert evidence.
Linksfield v Michael 2001 (3) SA 1188 (SCA).

6. Madinda v Minister of Safety and Security:
The court considered this case in relation to the requirements for condonation under the Institution of Legal Proceedings Against Certain Organs of State Act (ILPACOS).
Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA).

7. Fluxmans v Levenson:
The court referenced this case to discuss the requirements for knowledge of the debtor and the facts from which a debt arises under Section 12(3) of the Prescription Act.
Fluxmans v Levenson [2016] ZASCA 183.

8. Links v Department of Health, Northern Province:
The court used this case to highlight that the minimum facts required to give notice and/or institute an action do not mean the full ambit or legal conclusions or implications.
Links v Department of Health, Northern Province 2016 (4) SA 414 (CC).

These cases provided the legal framework and principles that guided the court's decision in determining the negligence and liability of the defendant, Emfuleni Municipality.