The law reports – September 2018

September 1st, 2018
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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

July 2018 (4) South African Law Reports (pp 1 – 331); [2018] 2 All South African Law Reports June (pp 597 – 892)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations

CC: Constitutional Court

ECG: Eastern Cape Division, Grahamstown

ECM: Eastern Cape Local Division, Mthatha

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

LP: Limpopo Division, Polokwane

SCA: Supreme Court of Appeal

Animals

Ownership of escaping wild animals: The dispute in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Society 2018 (4) SA 206 (SCA) concerned the ownership of a valuable herd of Cape Buffalo. The buffalo escaped from the fenced Thomas Baines Nature Reserve in the Eastern Cape, a provincial nature reserve managed by the appellant (Eastern Cape Parks) onto the respondent’s (Medbury) land. Medbury declined to return the buffalo. Medbury argued that it had become the owner of the buffalo under the common law. Under the common law, when a wild animal escapes its owner it becomes res nullius, and susceptible to the ownership of another party by means of occupatio (ie, capture and control with intention to possess).

However, s 2 of the Game Theft Act 105 of 1991 (the Act) provides that notwithstanding the rules of common law –

‘(a) a person who keeps or holds game … on land that is sufficiently enclosed as contemplated in subsection (2) … shall not lose ownership of that game if the game escapes from such enclosed land …;

(2)(a) For the purposes of subsection (1)(a) land shall be deemed to be sufficiently enclosed if, according to a certificate of the Premier of the province in which the land is situated, … it is sufficiently enclosed to confine to that land the species of game mentioned in the certificate.’

Eastern Cape Parks instituted an action for the buffalo’s return and the matter proceeded on a stated case confined to the question, inter alia, whether the certificate in s 2(2)(a) was a prerequisite for the protection in terms of s 2(1)(a) of the Act. (Eastern Cape Parks had no certificate.) The High Court held that it was, and dismissed the action.

On appeal to the SCA, per Navsa JA, formulated the primary question before the court as follows, namely, whether a certificate in terms of s 2(2)(a) is the only basis for the protection, afforded by s 2(1)(a), against loss of ownership.

The court held that it would be absurd to construe the deeming provision in the manner contended for by Medbury, namely, that the certificate is a ‘prerequisite for the protection afforded by the [Act] to apply’. This would defeat the purpose of the Act, which is to ensure that owners of game, who had in fact taken adequate measures to enclose land in order to confine game, do not lose ownership in the event of loss of control due to escape. The result of following Medbury’s construction would be that even where the land is in fact sufficiently enclosed to confine a species to it, the protection provided by s 2(1)(a) would be rendered nugatory. The production of a certificate was meant ‘to facilitate proof’ that the land in issue is sufficiently enclosed to confine the species in question. It was not meant to deprive owners who had taken the necessary measures to sufficiently enclose game on land, merely because they are not in possession of a s 2(1)(a) certificate.

The appeal was allowed with costs.

  • See law reports ‘Game Animals’ 2016 (Oct) DR 36 for the ECG judgment.

Arbitration

Grounds for setting award aside: The facts in Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty) Ltd [2018] 2 All SA 660 (SCA) were as follows: The respondent (Motlokwa) tendered successfully for a contract to remove waste from the appellant’s (Palabora) mine and smelter. Relations between Motlokwa and Palabora subsequently soured. The parties agreed to refer the dispute to arbitration. The dispute involved a claim by Palabora and a counterclaim by Motlokwa. The arbitrator held that a valid and binding contract had been concluded by way of a letter between the parties dated 23 December 2015. The arbitrator found that the pleaded defences of lack of consensus between the parties and that any contract was invalid by virtue of iustus error were unsound and fell to be dismissed; and, that the contract had not been lawfully cancelled either. Palabora’s claim was thus dismissed and Motlokwa’s counterclaim was upheld.

Motlokwa then applied for the arbitration award to be made an order of court in terms s 31(1) of the Arbitration Act 42 of 1965 (the Act). The application was opposed and a counter-application brought by Palabora under s 33(1)(b) of the Act to set the award aside.

Section 33(1)(b) provides that ‘where an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; … the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.’

Wallis JA held that where an arbitrator for some reason misconceives the nature of the inquiry in the arbitration proceedings with the result that a party is denied a fair hearing or a fair trial of the issues, that constitutes a gross irregularity. The party alleging the gross irregularity must establish it. Where an arbitrator engages in the correct inquiry, but errs either on the facts or the law, that is not an irregularity and is not a basis for setting aside an award. If parties choose arbitration, courts endeavour to uphold their choice and do not lightly disturb it.

While s 33(1)(b) provides that if an arbitrator commits a gross irregularity or exceeds its powers the court may make an order setting the award aside. It is silent on the situation where the irregularity or excess of powers affects only a discrete part of the award. The court held that there is no reason why an arbitration that has been properly conducted on certain issues and has properly determined those issues, should be set aside in its entirety, because of an irregularity in relation to a wholly separate issue. As the gross irregularity occurred in relation to the counterclaim alone, it was the award in respect of the latter alone that fell to be set aside.

Constitutional Law

Freedom of religion – limitations: The facts in MEC for Health, Limpopo v Rabalago and another 2018 (4) SA 270 (LP) were res nova. The applicant (the MEC) responsible for the Department of Health and Social Development in Limpopo Province, launched an urgent application in this court against the respondents for an interim interdict in terms of which a rule nisi was granted. The present application was to have the interim interdict confirmed.

The first respondent was a pastor of the second respondent (the congregation). In November 2016 it was reported in the printed media and later also in social media that the first respondent allegedly used Tiger Brand’s Doom insecticide to spray his congregants in order to heal members of his church assembly. Doom is generally freely sold to consumers in markets, shops and supermarkets for use in households. It is a multi-insect killer also registered as a pesticide to poison and kill insects. The MEC’s application for an interdict was to prevent the first respondent from spraying the members of his congregation with Doom.

Phatudi J pointed out that it was common cause that Doom spray was poisonous and detrimental to one’s health.

Section 15(1) of the 1996 Constitution guarantees the right to freedom of conscience, religion, thought, belief and opinion. Section 15(2) provides that ‘religious observances’ may be conducted at state or state-aided institutions.

In the present case the court was confronted with the question whether the respondents in exercising their ‘religious observances’ in their religion and beliefs, do so within the confines of s 15(2)(a) of the Constitution. The respondents relied on the provisions contained in s 31(1) of the Constitution, which stipulate that:

‘(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community –

(a) to enjoy their culture, practise their religion and use their language; and

(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.’

However, s 31(2) stipulates that ‘(t)he rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights’.

What, however, limits the right in ss 15(1) and 31(1) asserted by the first respondent, is the application and use of a toxic substance such as Doom spray on the human body contrary to the warnings on each can of Doom. The court thus held that the legislation that prohibits misuse of such insecticides or pesticides as Doom spray on humans, limits the very religious rights claimed by the first respondent under the Constitution. The freedom of worship, whether actuated by spirituality or not, has to be exercised reasonably within the confines of the law and the constitutional framework.

The rule nisi, which was granted in November 2016, was accordingly confirmed.

Contract law

Validity of demand for performance: The facts in Mr LED (Pty) Ltd v Waxfam Investments (Pty) Ltd and Another 2018 (4) SA 308 (GJ) were as follows: The appellant (LED) was the buyer and the respondent (Waxfam) the seller in terms of a contract of sale of a piece of land. When LED delayed in performing under the contract, it incurred an obligation to pay a sum of penalty interest. LED failed to pay the penalty. Waxfam’s conveyancer, in a written letter, demanded payment of the engineering services fee, as well as penalty interest, a total of some R 1,16 million. The total penalty interest claimed was R 422 013,14. After warning, and continued non-compliance, the agreement was cancelled. LED later unsuccessfully sought specific performance of the agreement. LED appealed to the Full Bench (the present court). The issue was whether LED’s demand for specific performance was valid.

On appeal LED averred that Waxfam had overstated the penalty interest owed. LED admitted owing a part of the penalty, and that that part was due.

Gautschi AJ held that on LED’s own admission, made in the replying affidavit, an amount of mora interest of some R 64 000 was due and payable by it. The question is whether the demand, overstated as it was, was a good demand in terms of clause 18.1 and would entitle Waxfam to cancel the agreement. The court held that it was. The mere fact that a demand for payment of money is overstated does not make it ineffectual, where there is an admitted portion thereof, which is due and payable. Its calculation is incorrect and overstated by three days, but the exact figure does not matter for purposes of this analysis.

The court further held if the principle is that an overstated demand which includes an admitted indebtedness would constitute a valid demand, there is no room for degrees of overstatement.

Waxfam’s cancellation of the agreement of sale was thus lawful. LED’s application was rightly dismissed in the court a quo. The appeal was dismissed with costs.

Delict

Medical negligence: The crisp facts in AN obo EN v Member of the Executive Council for Health, EC [2018] 2 All SA 678 (ECM) were as follows: The plaintiff sued the defendant for damages for alleged negligence by doctors and nurses at a hospital falling under the control of the defendant. In her particulars of claim the plaintiff provided a long list of allegations of negligence by the defendant’s employees, among others, their failure to monitor the plaintiff and her unborn foetus either properly or with sufficient frequency, which resulted in a failure to diagnose timeously the onset of foetal distress. As a result, so the plaintiff argued, her child was born with severe brain defects and was diagnosed with hypoxic ischaemic encephalopathy (HIE).

While admitting that the staff was bound to employ the skill and care as could reasonably be expected of staff in similar circumstances, the defendant nevertheless denied any wrongful, unlawful or negligent conduct.

Dawood J pointed out that the issue for determination was whether or not sub-optimal care by medical staff at the hospital caused or causally contributed to the child’s condition, that is, whether there was a causal connection between the failure to monitor the foetal heart rate and the HIE of an acute profound nature, hypoxic cerebral palsy, developmental delay and serious brain defects suffered by the child. The matter turned on the probabilities and credibility did not play a role since all the experts were equally credible.

The defendant’s case included an allegation that the baby was being monitored and that a nurse had taken a reading at 6:00am on the morning in question, showing that all was normal. However, so the court reasoned, the defendant failed to adduce the evidence of that nurse. The court was, therefore, unable to accept her recordings, especially since it was specifically placed in issue and questioned by the plaintiff’s expert. The defendant accordingly could not rely on this as confirmation that at 6:00am, the foetal heart rate was normal and that there was no cause for concern at that time.

The main expert witness for the defendant was unfazed by the exclusion of the above evidence. He stated that although that was what he relied on, the exclusion of that evidence would not change his opinion since it was still an acute profound event that would have occurred in the last half an hour prior to delivery and, therefore, even with no monitoring, the outcome would have been the same. The court accepted that the witness had the necessary expertise to express an expert opinion, and that his version that the problem was a sudden occurrence and there was no time to have acted to prevent the incident was more probable than the plaintiff’s expert that there must have been forewarning and that prompt action could have resulted in the baby being delivered earlier reducing or eliminating the HIE. The plaintiff’s expert’s theory was unsubstantiated by any medical authority.

The court concluded that the plaintiff had accordingly failed to demonstrate a causal connection between the sub-standard care and the injury that ensued on a balance of probabilities. Having failed to discharge the onus resting on her to prove her case against the defendant on a balance of probabilities, her claim was dismissed with no order as to costs.

 

Personal injury: The facts in Chowan v Associated Motor Holdings (Pty) Ltd and Others 2018 (4) SA 145 (GJ); [2018] 2 All SA 720 (GJ) were as follows: The plaintiff (Chowan) was employed by the first defendant, Associated Motor Holdings (AMH) as group financial manager. She was dismissed with immediate effect at the end of September 2015.

Chowan was head-hunted for the position of group financial manager at AMH. At the time she already had extensive experience as a chartered accountant in the corporate world. On being recruited for the position of group financial manager at AMH, she sought an assurance that opportunities would be available to her for career progression. Suffice it to say that these opportunities did not materialise and at a later stage Chowan was told she would never be promoted as Chief Financial Officer of AMH and that she was a ‘female, employment equity’ person. Chowan considered the mention of her race and gender totally unprofessional and unacceptable and lodged a grievance, which was dismissed. AMH thereafter instituted disciplinary proceedings against her because she had abused the grievance procedures. She was subsequently dismissed from AMH’s employment.

Chowan sued AMH in delict under the actio legis aquiliae for pure economic loss that she allegedly suffered through AMH’s wrongful and intentional acts. Her alternative claims for AMH’s alleged repudiation of the employment contract between them; and a claim for damages under the actio iniuriarum as a result of alleged injuries to her reputation (fama) fall outside the scope of the present discussion.

Meyer J pointed out that central to Chowan’s aquilian claim was her averment that her dismissal was wrongful because it contravened AMH’s duty under the Protected Disclosures Act 26 of 2000 (the PDA) not to subject her, as employee, to an ‘occupational detriment’ for having made a ‘protected disclosure’ in terms of s 3 of the PDA. Section 3 provides that no employee may be subjected to any occupational detriment by their employer on account, or partly on account, of having made a protected disclosure.

Section 1, in turn, defines ‘disclosure’ as ‘any disclosure of information regarding the conduct of an employer … made by an employee … who has reason to believe that the information concerned shows [inter alia] … unfair discrimination’. Under s 6(1)(a) such disclosures, when made to employers, were protected if they were made in good faith and substantially in accordance with prescribed procedures. The court held that Chowan’s disclosure was not an external one that fell under s 9 of the PDA. It was consented to by an employee of AMH and was thus an authorised internal procedure covered by s 6(1)(a) of the PDA.

Chowan’s subjective belief that she was being discriminated against was ‘reasonable’ within the meaning of ‘disclosure’ in s 1 of the PDA. Because the disclosure was, on the evidence, also made in good faith, it was protected, and the occupational detriments to which she was subjected – suspension, disciplinary action and dismissal – were contrary to s 3 of the PDA and hence unlawful.

Turning to the plaintiff’s aquilian claim, the court did not regard the availability of other remedies as a bar to extending the aquilian action to import wrongfulness and fashion a remedy in delict for the plaintiff. The court pointed to the numerous public policy reasons in favour of imposing delictual liability in the case. AMH was, therefore, held liable for payment of the delictual damages proven by the plaintiff. That rendered it unnecessary to consider the plaintiff’s contractual claim.

Chowan’s aquilian claim was thus allowed with costs.

 

Unlawful arrest and detention: The facts in De Klerk v Minister of Police [2018] 2 All SA 597 (SCA) were as follows: The complainant owed the appellant (De Klerk) money for services rendered. De Klerk went to the complainant’s office on 11 December 2012, to demand his money and an altercation ensued. In the scuffle, the complainant bumped into the frame of a wall picture. The glass broke and cut the complainant’s back. He reported the incident to the police who opened a docket for assault with intent to do grievous bodily harm. The police called De Klerk and invited him to make a statement. He went to the police station and after he unsuccessfully tried to contact his lawyer, according to the appellant’s version he was arrested and detained for a week. He was released after the complainant withdrew the complaint.

De Klerk subsequently instituted action against the respondent, the Minister of Police (the minister), claiming damages for unlawful arrest and detention and malicious prosecution. The High Court stated that the primary basis on which it was alleged that the arrest was unlawful was because it took place without a warrant, but found that the police had acted reasonably. It dismissed the claim.

On appeal to the SCA, De Klerk contended that the court a quo erred in not considering that there were no objective facts in evidence underpinning any reasonable suspicion that an offence referred to in sch 1 of the Criminal Procedure Act 51 of 1977 (the Act) had been committed. He contended further that the absence of a warrant made the arrest unlawful, because assault with intent to do grievous bodily harm is not one of the offences referred to in sch 1. The court a quo held that the police were entitled to arrest without a warrant for any offence, except the offence of escaping from lawful custody. However, it raised the issue mero motu and overlooked the fact that the respondent did not plead nor canvas that in evidence. The parties were also not asked to address the court on the matter, and the appellant also took issue with that on appeal.

Shongwe ADP, in a majority judgment, pointed out that it was common cause that at the time of De Klerk’s arrest, the police were acting within the course and scope of their employment with the respondent. Consequently, the minister was vicariously liable for their wrongful acts. The minister bore the onus to prove the lawfulness of the arrest.

Schedule 1 of the Act does not include assault with intent to do grievous bodily harm. It lists an offence of ‘assault when a dangerous wound is inflicted’. Therefore, one of the jurisdictional facts was absent in this case. It could not be said that the arresting officer entertained a reasonable suspicion that the listed offence had been committed.

The arresting officer failed to investigate the circumstances of the assault, whether the wound was inflicted intentionally or whether it came about accidentally during the scuffle. The nature and seriousness of the wound was never investigated. The arresting officer wrongly assumed that the assault was committed with intent to do grievous bodily harm and that the offence is listed in sch 1. Arrest without a warrant in the circumstances was unlawful.

Although in his claim relating to unlawful detention, De Klerk referred to his detention for eight days, the court viewed it differently. The police had taken the appellant to court within two hours of his arrest. It was, therefore, held that De Klerk was unlawfully detained for not more than two hours. What happened in court and thereafter could not be attributed to the minister.

The appeal was upheld and the court awarded De Klerk R 30 000 as compensation.

Stare decisis Principle

Lower courts bound by decisions of higher courts: In Patmar Explorations (Pty) Ltd and Others v The Limpopo Development Tribunal and Others 2018 (4) SA 107 (SCA) the court confirmed the sanctity and constitutional importance of the stare decisis principle.

The facts were as follows: The Limpopo Development Tribunal approved applications before it, at a time that the CC held the empowering act to be unconstitutional, but suspended the effect of that finding for a period of two years.

In Mogalakwena Local Municipality v Semmogo Property Development (Pty) Ltd and Others (unreported case no 18585/2013, 6-5-2013) (Mothle J) had previously held that the suspension applied to matters that had already been decided, but that the Tribunal was no longer entitled to rule on pending or new matters. Despite that court decision, the Tribunal dealt with the pending matters in this case and approved the applications of the applicants before the Tribunal.

Patmar, an objector to the applications before the Tribunal, brought an application before the LP contesting the validity of the Tribunal’s powers. The court, without much discussion or analysis, held that the previous decision in the Mogalakwena case was wrong and made a contrary finding, namely that the Tribunal was still entitled to deal with pending matters.

A few days before leave to appeal against this decision was granted, the SCA handed down the decision in Shelton v Eastern Cape Development Tribunal and Others (SCA) (unreported case no 489/2015, 26-9-2016) (Potterill AJA) (Lewis,
Wallis and Saldulker JJA concurring) where it reached the same conclusion as in the Mogalakwena case, namely that the suspension also suspended the powers of tribunals to deal with pending matters.

Wallis JA held that the principle that courts are bound by their own earlier decisions and will abide by them unless they are clearly wrong (stare decisis principle), is an important constitutional principle and the rule of law ensuring legal certainty.

The bar in determining whether a previous decision is wrong or not, is set very high to preserve this principle. The mere fact that a later court may disagree or have a different point of view is insufficient, as there must be clear reasons that the earlier decision was clearly wrong.

This principle applies not only to the CC and the SCA, but also to provincial divisions. Although different provincial divisions may disagree on a point of law, judges in the same division are bound by earlier decisions unless the earlier decision was clearly wrong.

In the hierarchy of courts, lower courts are bound by the decisions of higher courts and are not at liberty to decide whether such a decision was wrong or not.

In the court a quo, the judge failed to properly heed the principles of stare decisis principle. There was no clear reasoning why the previous decision in the same division was wrong and the judge should have followed it, even if he disagreed with it. The decision was reasonable and justifiable and not clearly wrong.

The appeal was thus upheld with costs.

Trusts

Validity of election of trustees: In Fesi v Ndabeni Communal Property Trust [2018] 2 All SA 617 (SCA) the court was asked to pronounce on the validity of the election of a trustee of a trust established to administer and develop property received as a result of a land restitution claim. The salient facts were as follows. In 1997, a land claim was successfully lodged in terms of the Restitution of Land Rights Act 22 of 1994. A trust was created to serve the interests of the claimant community and in contemplation of a successful land claim. The respondents were appointed trustees in August 2015, after the failure of the prior board to convene an annual general meeting to enable a new board of trustees to be elected.

The crisp issue in the present dispute was whether the six respondents were properly elected in terms of the trust deed by persons entitled to vote. And further, whether the respondents were entitled to assume office as trustees of the trust. The legality of the election was called into question by a number of persons. The second appellant (the Master) allowed a period of time for a court challenge to be launched. When that was not forthcoming, the Master, on 12 August 2015, issued letters of authority to the respondents. Shortly after the letters of authority were issued, the respondents concluded the first of a series of written agreements, which involved a property developer. The agreements provided for the sale of the property to a joint venture company (Devco) in which the developer and the trust would respectively hold 74% and 26% of the issued shares. The trust accepted Devco’s offer for the land without obtaining independent valuations and despite previously having obtained a substantially better offer.

In October 2016, the first appellant issued summons in terms of which she contested the validity of the appointment of the respondents. Faced with the summons and having regard to the complaints received from interested parties concerning the actions of the respondents, the Master declined to issue the letters of authority. The respondents then successfully applied in the court below for an order directing the Master to issue letters of authority authorising the respondents to act as trustees of the trust. The present appeal was against the High Court’s order.

On appeal, the appellants argued that the respondents were not entitled to approach the court for an order compelling the Master to issue letters of authority. They contended that the proper procedure would have been for the respondents to launch an application in terms of s 23 of the Trust Property Control Act 57 of 1988 (the Trust Act) and in accordance with r 53 of the Uniform Rules, to review and set aside the decision by the Master to not issue the letters of authority.

Navsa JA held that the respondents were entitled to approach the court for relief in terms of s 23 of the Trust Act on the basis that they had. The essential question was whether relevant and sufficient facts were before the court enabling it to adjudicate the claim for relief. The court confirmed that the necessary facts were before the court below to enable the respondents’ claim for relief and the grounds of opposition, with reference to the relevant statutory provisions, to be adjudicated.

For proper accession to the office of trustee, there must be –

  • appointment in a lawful manner;
  • proper qualification on the part of the trustee;
  • acceptance of the office; and
  • written authorisation by the Master.

The facts showed that the respondents could not be regarded as having been validly elected in accordance with the trust deed. A letter of authorisation from the Master could only follow on appointment in accordance with the trust deed. The Master rightly had concerns about the election of the respondents and the court below erred in being too readily dismissive of the Master’s concerns.

The fact that the respondents were not properly elected on its own disentitled them to the relief sought and granted in the High Court. The Master’s refusal to issue letters of authority was clearly
justified. The appeal was thus upheld with costs.

Water

Supra-natural flow of water from upper to lower property: The facts in Pietermaritzburg and District Council for the Care of the Aged v Redlands Development Projects (Pty) Ltd and Others 2018 (4) SA 113 (SCA) concerned an application by the owner of a lower property to interdict supra-natural flow of water from upper property. The two properties at stake were on a hill. The highest was owned by the respondents (Redlands). Beneath Redlands was a road owned by the municipality; below it two further properties; and then the land owned by the appellant, Pietermaritzburg and District Council for the Care of the Aged (PADCA). Rain-water on Redlands was combined and diverted into a catchment pit on the municipality’s road, which was fed also by the gutter of another municipal road. From the pit the water flowed by municipal pipe across the next two properties, and to a canalised watercourse on PADCA’s property.

PADCA’s application for an interdict was based on the actio aquae pluviae arcendae (that is, an action for the removal of obstructions erected by a neighbour to impede the natural flow of rain-water); alternatively, in neighbour law. The High Court dismissed the action.

On appeal to the SCA, Pillay AJA, pointed out that the municipality approved the storm water system within Redlands Estate during construction; the design plan met guidelines in place at the time for storm water disposal. Consequently, Redlands were lawfully authorised to dispose of their storm water into the municipal system. Lastly, in regard to the actio, the developers of the lower property 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 the higher property. Contrary to the advice it received, PADCA did not line its canal with concrete. It built the canal in place of the natural watercourse.

As for PADCA’s alternative claim based on the law of neighbours, the SCA held in Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) 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. 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.

The appeal was thus dismissed with costs.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administrative law, civil procedure, competition, contracts, divorce, immigration, land reform, litigation (norms and standards), local authorities, powers of police, review proceedings, selection of judges, telecommunication, tenders and winding-up of companies.

This article was first published in De Rebus in 2018 (Sept) DR 29.

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