IN THE
SWAZILAND COURT OF APPEAL
In the
matter between: Civil App. No. 2/80
MICHAEL
FARRAR JOHNSON Appellant
and
COMMONWEALTH
DEVELOPMENT CORPORATION Respondent
CORAM: Maisels
P
Dendy
Young J.A.
Isaacs
J.A.
JUDGMENT
(Handed down
6th May, 1981 )
MAISELS P.
I have had
the advantage of reading the judgments in draft prepared by Dendy
Young J.A. and Isaacs J.A. I agree with the Order proposed by my
brethren but prefer to base my judgment on the reasons given by
Isaacs J.A.
The
following Order is made:
1. The
Appeal is allowed with costs, such costs to include those occasioned
by the employment of two counsel.
2. The Order
of the Court a quo is altered to read:
"Application
for absolution refused. The defendant is to pay all wasted costs
occasioned as a result of such application, such costs to include
those incurred as a result of the employment of two counsel."
(signed)
I.
A. MAISELS 16.3.1981.
PRESIDENT OF
COURT OF APPEAL
2
DENDY YOUNG
J.A. .
This is an
appeal from a judgment of Cohen J in the High Court in which, at the
conclusion of the Plaintiff's case, he granted absolution from the
instance, costs to stand over. For the sake of convenience I shall
refer to the Appellant as the Plaintiff and the Respondent as the
Defendant .
Summons was
issued in October 1978 and issue was joined in July 1979. The case
made by the Plaintiff is contained in paragraphs 2 to 7 of the
Particulars of Claim annexed to the summons;
"3. At
all material times:
(a) Plaintiff
has been the registered owner of certain portion 14 of farm No. 860
situate in the district of Lubombo, Swaziland.
(b) The
Defendant has been the registered owner of the remaining extent of
the said farm No. 869 situate in the said district.
(c) The
Plaintiff has cultivated sugar cane on his land.
4. (a) The
Plaintiff's said land and in particular
that portion
on which sugar cane is cultivated is adjacent to and adjoins the
Defendant's said land and is separated from it by an earthern
irrigation canal which forms part of the Defendant's irrigation
system.
(b) The said
earthern canal is traversed at one corner of the Plaintiff's land by
a by-pass over the canal which takes excess flood waters into the
natural drainage land which runs into the Volindi River and there is
also an irrigation spillway constructed in the canal to take excess
water in times of flood.
3
5.
(a) During or about 1972, the Defendant commenced planting sugar cane
on its land adjacent to the Plaintiff's land and has been irrigating
the sugar cane intensively since that time.
(b) As a
result a large volume of water in addition to the natural rainfall
has been and is being applied to the land on which the sugar cane is
planted, thereby casuing excessive and unnatural quantities of water
to seep onto the Plaintiff's lower lying land.
(c) In
addition, the Defendant constructed or caused to be constructed, a
number of new drainage ditches which have greatly increased the size
of the catchment area which discharges run-offs across the bypass
over the canal into the watercourse which runs alongside the
Plaintiff's land down to the Volindi River.
(d) The
resulting increased volume of runoff discharge down the watercourse
has caused marshy conditions to spread alongside it to the extent of
encroaching onto Plaintiff's land.
6. (a) The
excessive and unnatural quantity of water so discharged and/or
seeping on to Plaintiff's land has resulted in an area of
approximately 20 acres thereof becoming completely waterlogged and
brackish, and the sugar cane which was planted thereon dying off.
(b) The said
area of approximately 20 acres has now become entirely useless for
the purpose of planting sugar cane thereon or for any other purpose.
4
7. In the
premises the Plaintiff has suffered damage in an amount of E39 000,
in which amount the Defendant is liable to compensate Plaintiff."
It will be
observed that there is no allegation of dolus or culpa on the part of
the Defendant. In this court counsel refrained from formulating any
principle or category of liability which could function as a general
proposition. He claimed that he had pleaded the facts and on those
the Plaintiff was entitled to the relief he sought. It is not even
alleged that the conduct complained of was unlawful. In its plea the
Defendant raised a number of defences, the onus of proof whereof
rests on the Defendant. However, at the conclusion of the case for
the Plaintiff, the Defendant took the point that the Plaintiff was
restricted to certain ancient remedies which (it was said) still form
part of the Roman-Dutch common law and in terms of which the
Plaintiff had failed to establish his claim for damages. These
remedies are the actio aquae pluvias arcendae ('actio A P A') and the
interdictum quod vi aut clam ('interdictum Q V A C'). The learned
judge in the court a quo held that these remedies form part of
Roman-Dutch law as that law applies in Swaziland and that the
Plaintiff was bound by them; further that the Plaintiff had indeed
failed to prove a case for relief in terms thereof. Before us, it was
conceded by counsel for the Plaintiff that, if the plaintiff's case
is governed by the two remedies, the application for absolution was
rightly granted. On the pleadings and the evidence led for the
Plaintiff, the facts are shortly as follows: The Plaintiff acquired
his land in 1970 and planted it to sugar cane. The land is a
sub-division of a large tract of land belonging to the Defendant. The
Plaintiff's land and the Defendant's adjoining land lie on a mountain
slope with the latter's land higher at every point than the former's
land, so that surplus rainwater falling on the Defendant's land would
naturally flow onto the Plaintiff's land. At the time of acquisition
there existed (and still exists) an earthern canal running along the
lower perimeter of the Defendant's land. This canal, to all intents
and purposes, intercepts surface runoff from entering the Plaintiff's
land.
5
The canal
empties into a dry wash or a natural drainage channel ("the
natural water course") which takes the water down to the Volindi
River. The natural water course by
-passes the Plaintiff.'s land on the
southern side, but does not abut on it. In the Lubombo district,
sugar cane cannot be grown without irrigation. The Plaintiff,
therefore, established an irrigation scheme on his land with the
necessary drainage system. The works conform, to normal sound
irrigation practice. The drainage system empties into the natural
water course. At this point the natural water course is no longer
even on the Defendant's land. No part of it is, be it recalled, on
the Plaintiff's land.
In 1972 the
Defendant, to the Plaintiff's knowledge, began sugar cane growing on
a large scale on land upwards of the Plaintiff's cane fields. Bush
was cleared and an irrigation and drainage system established. The
works conform to normal sound irrigation practice. New drains above
the canal and above the irrigated lands serve to protect the canal
and the lands by deflecting surface run-off to an overpass which
takes the water into the natural watercourse. However, included in
the Defendant's drainage system is a ditch or drain called the
southern drainage ditch ("SDD") built in 1974, which brings
surface run-off to the natural watercourse. The special feature of
the SDD is that it brings water from a catchment area or drainage
basin extraneous to that served by the natural watercourse. That is
to say, but for the SDD, that surface run-off would take a different
direction on its way to the Volindi River. From about 1975 it became
evident that the natural watercourse was not functioning efficiently
to drain the surface run-off being fed into it and on into the
Volindi River. The natural watercourse slowly became silted up and
choked with vegetation, damming back the water. Vet conditions
developed over a wide front below the canal. A high water table
emerged in a portion of the Plaintiff's land known as Field 5; the
soil became waterlogged and brackish; the cane began to deteriorate
and die; the Plaintiff lost his crop. The process is progressive -
further fields may be affected in the same way. In the opinion of the
Plaintiff's expert, the basic diagnosis of the unexpected problem is
(in his words):
6
"The
surface drainage pattern above the canal has been changed and drain
SDD is introducing a large volume of water from another catchment
which would normally not have flowed down (the natural) watercourse."
The
Plaintiff's land is afflicted with drainage and seepage problems. It
can be accepted that the Plaintiff was at all material times
acquainted with the Defendant's irrigation and drainage works; but he
had no idea of the impact on the natural water course. It is not
suggested that the Plaintiff knew or ought to have known of such
consequences.
Returning
now to the grounds upon which the court a quo dismissed the
Plaintiff's action: As the learned Judge saw it, the Plaintiff,
having elected to claim damages only was bound to bring his case
within one or other of the Actio APA and the Interdictum QVAC. He
held that under the former only damages which accrued after joinder
of issue were recoverable; under the latter relief by way of damages
could only be granted if the Plaintiff's irrigation and drainage
works were established "vi aut clam", that is (as
expounded by the jurists) "against his will or without his
consent." The learned trial judge held that on the pleadings and
evidence led, the Plaintiff failed on both counts.
I turn to
the law in Swaziland. By section 2 of the General Administration Act,
1905, it is provided that:
"The
Roman-Dutch law, save insofar as the same has been heretofore or may
from time to time hereafter be modified by statute, shall be the law
of Swaziland."
It is not
suggested that there has been any relevant statutory modification of
the Roman-Dutch law touching the issues between the parties in this
case. It is as well to emphasise two matters. First, because the
concepts, principles and doctrines of the Roman-Dutch law form the
authoritative basis of the common law of Swaziland, and also of the
Republic of South Africa, it does not follow that the exposition and
development of the Roman-Dutch law by the courts of South Africa
determine the Swazi common law. It can, of
7
course,
readily be accepted that the decisions of the courts in South Africa
are of high persuasive value in Swaziland, more especially decisions
prior to the year 1905. Since that year it has been primarily the
function of the Swazi legislature and courts to continue that
development. The resultant common law will not necessarily be the
same in both countries. It must be borne in mind that, whether a
particular rule of Roman-Dutch law is part of the Swazi common law
also depends upon its suitability to the conditions in Swaziland.
Second, I do
not think that this case is governed by neighbour law or nuisance law
in the usual context. In my view, we are concerned here with the
wider field of irrigation and drainage of agricultural land; the
dispute falls therefore to be decided in terms of common law of water
rights and duties. The difficulties which have developed are a common
phenomenon in many countries. In Union Government v Marais &
Others, 1920 AD 240 (a case involving percolating water feeding a
stream) Maasdorp J A
examined English and USA decisons on the common law of water rights.
He noted that in Chasemore v Richards (1859) HL 349 Lord Wensleydale
had applied the principles of the Civil law as set out in the Digest.
Maasdorp J A
then cited a passage from the judgment of Harwell J in Bradford
Corporation v Ferrand (1902) 2 Ch.D 655: After saying that the
foundation of water rights possessed by owners of land in jus
naturae, Farwell J went on:
"What
is jus naturae? I have come to the conclusion that jus naturae is
used in these cases as expressing that principle in English law which
is akin to, if not derived from, the jus naturale of the Roman law.
English law is, of course, quite independent of Roman law, but the
conception of aeguum et bonum and the rights flowing therefrom which
are included in the jus naturale underlie a great part of English
Common Law, although it is not usual for find "the law of
nature" or "natural law" referred to in so many words
in English cases.
8
I am,
therefore, introducing no novel principle if I regard jus naturae on
which the right of running water rests, as meaning that which is
aequum et bonum between the upper and lower proprietors. Each has his
rights jus naturae. "
Maasdorp
J.A. concluded (p. 268)
"Having
ascertained that the principles of the English and American law on
this subject are identical with those of our law and the English and
American cases afford us valuable assistance, I turn to our own
authorities on the law."
There is no
reason to think that those dicta do not apply to the common law of
Swaziland.
I turn then
to the Swazi common law. In Ludolph v Wegner (1888) 6 Juta 193, De
Villiers C J, Smith and Buchanan J.
J. held that -
"A
right to discharge water upon a neighbour's land may exist by virtue
of a duly created servitude or by the natural situation of the
locality."
In Van der
Merwe v Zak River Estates Ltd 1913 CPD 1053 Searle J referred to
Luddph v Wegner and remarked at p. 1072:
"In the
present case there is no servitude and the defendant falls back upon
the natura loci, endeavouring to establish the proposition that no
more water came down to plaintiff's land through the Rooiwal breach
than would have come down if there was no dam in the river. But where
the natural state of things has been completely altered by the upper
proprietor's acts the onus is strictly upon him to prove this
proposition....".
At page 1073
Searle J continued:
9
"Grotius,
in his introduction (2.35.17) says: 'By-common law, everyone may
allow his water to flow as it flows naturally or by itself; hence the
old proverb, 'that person is responsible who obstructs or diverts
water'. The maxim, 'Aqua currit et debet currere ut currere solebat',
may be applied, in my opinion, both to the case of a stream which,
under our law, prior to Act 12 of 1912, would be called perennial,
and to that of one which has only an intermittent flow, where that
flow is in a regular and defined channel; it may be applied both to
prevent the upper proprietor from taking out of the channel more than
his reasonable share of the perennial stream, and to prevent him from
discharging in a non-natural manner from his land onto the land of
the lower proprietor an excessive or unreasonable quantity of the
flow of an intermittent one, to the damage of the lower proprietor."
Searle J
cites the English case of Rex v Trafford where Tenterden C J said:
"It has
long been established that the ordinary course of water cannot be
lawfully changed or obstructed for the benefit of one class of
persons to the injury of another."
Earlier in
his judgment, Searle J refers to Farnham, an American authority on
water right where the author says (Vol 2 sec 490) that the liability
for negligently effecting a change in the channel of a stream is as
great as though the change is effected intentionally.
In regard to
the content of the rights and duties under water law in a particular
locality, the principle of reasonable user is clearly
recognised. This is so in the area of drainage rights as well as
running water. Rights of drainage seem to me to be correctly
expounded in an article (anonymous) which appears in the South
African Law Journal Vol 20 (1903) P 43. The article has this (so far
as relevant):
10
"In
order to complete the subject it will be necessary to add a few words
as to the rights of drainage, for, if upper properties are subject to
certain duties towards lower with respect to water flowing on or
across the former, lower properties in their turn are subject to
certain corresponding duties towards the upper. If upper properties
are in certain cases bound to allow water to run down for the use of
the lower in accordance with the rules laid down above, lower
properties are bound to receive water flowing to them from higher
ground in obedience to the laws of gravitation, being subject to a
sort of natural servitude in that respect. To put it another way, the
upper proprietor is entitled to demand that the natural surroundings
of his land and the natural laws, to which they are subject, shall be
left undisturbed in so far as their continuance is essential to the
proper and reasonable enjoyment of his rights of ownership. And,
though the lower proprietor is entitled to demand that no water or
any other substance shall be discharged on to his ground by the
upper, which would not have come there in the ordinary course of
nature, unless he is bound by some servitude to receive the same, yet
he will be bound to receive water flowing down to his ground not in
consequence os some act of an upper proprietor but in accordance with
natural laws, and if he obstructs such flow and damage is thereby
caused to the upper proprietor, he will be liable to an action. It
follows that the upper proprietor in his turn will not be entitled to
interfere with the laws of nature affecting his land or that of his
lower neighbour to the injury of the latter, and will therefore
not be allowed to alter the natural drainage, of his ground in such a
manner as to discharge or divert water on to his neighbour's ground
which would not have flowed there naturally, nor by means of some
artificial structure such as embankments, watercourses, plantations
and such like, to cause water, which would have flowed there
naturally, to flow down differently from what it would naturally have
done, that is, in increased volume or in a more rapid or stronger or
more compressed stream or in a polluted confition, if injury is
thereby caused to the neighbour. A man is not even allowed to let the
rainwater drip from his roof on to a neighbour's ground, unless
he has a servitus stillicidii recipiendi over it, nor may he
discharge his rainwater by means of a down pipe and spout into a
neighbour's property, unless he has a servitus fluminis recipiendii
over it. No action however, will lie either against an upper or a
lower proprietor for damage due to an alteration in the natural
drainage, if such alteration is due not to any work expressly
constructed with that object but merely in consequence of the
enjoyment of the rights of property and the cultivation of land in a
fair and reasonable manner in the ordinary way, e.g. by making
irrigation furrows where there can be no cultivation without them or
by cutting ditches for the drainage of one's land, provided the water
is not c collected into one united stream and then discharged on to a
neighbour's land in a more forcible and destructive manner than it
would otherwise have got there naturally
11
for everyone
ought to improve his own land in such a way that he does not thereby
deteriorate the land of his neighbours. But where an upper proprietor
is entitled to use a particular channel for the discharge of his
surplus rainwater, he will be entitled also to increase the ordinary
flow into such channel even to the prejudice of the lower proprietor,
if such increase be occasioned in the ordinary course of draining,
ploughing or irrigating his lands and be not greater than is
reasonable under the circumstances."
In the USA
the reasonable use theory has recently been stated by Frank J
Trelese, Professor of Law, University of Wyoming, in his work on
Water Law (194-7) (American Case Book Series) pp 265-6: He is dealing
with reasonable user among riparian owners, but there is no reason to
think that the theory does not apply to drainage rights as well. He
says:
"The
reasonable use theory. Under the reasonable use theory the primary or
fundamental right of each riparian proprietor on a watercourse or
lake is merely to be free from unreasonable uses which cause harm to
his own reasonable use of the water. Emphasis is placed on a full and
beneficial use of the advantages of the stream of lake, and each
riparian proprietor has a privilege to make a reasonable use of water
for any purpose, provided only that such use does not cause harm to
the reasonable use of others. Each riparian must make his use in a
manner which will accomodate as many other uses as possible ... The
major advantage of this theory is that it tends to be
entirely-utilitarian and tends to promote the beneficial use of water
resources. ... The rule of reasonableness came to be applied in two
quite different senses. The courts lumped together two distinct torts
under the heading of riparian rights. One is the interference
with the water supply of riparians who build dam3 to create a head
for water power and store the water until needed... The other is an
interference with the quality of water to the injury of lower
riparians, where waters are used to carry away the waste of human
activity or are otherwise polluted. The distinction between the two
types of cases has not often been made explicit. In both situations
the courts have been purported to apply the same rule of reasonable
use, but the application of the rule has been different in each and
the distinction can be found in the results. In the water quality
cases, reasonableness depends upon a balancing of the interests of
the plaintiff and the defendant in each case, in a manner
identical to the process used in the law of nuisance. Indeed, in many
water pollution cases the courts have employed the nuisance formulae
In some cases, therefore, a defendant's pollution has been held to be
justified because the utility of the defendant's conduct out-wighs
the gravity of the harm imposed upon the plaintiffs.
12
In the water
quantity cases, the rule of reasonableness is applied quite
differently. Each use is required to be beneficial, suitable to the
watercourse, and to have economic and social value. If these
requirements are met, reasonableness may require each riparian to put
up with minor inconveniences and to adjust the quantity of water used
or the method of its use so that both uses can co-exist. If they
cannot be reconciled in this fashion, because the interference is
caused by the defendant taking himself, resolution of the conflict
involves consideration of the reciprocal factors of whether the first
user's investments and other values are entitled to protection and
whether the new user ought to compensate the former user for the loss
of that which the later user has gained. In most of the cases in
which the plaintiff has suffered substantial harm through his water
supply for a reasonable use being taken, the decision has been
that the taking is unreasonable."
So, in the
USA the basic test is reasonable user.
That the
theory of reasonable user applies in England emerges from the case of
Sedleigh-Denfield v St Joseph's Missions (1940) 3 All ER 349 at 364
in which Lord Wright said (dealing with interference by owners of
property with the use or enjoyment of neighbouring property):
"A
balance has to be maintained between the right of the occupier to do
what he likes with his own and the right of his neighbour not to be
interefered with. It is impossible to give any precise or universal
formula, but it may broadly be said that a useful test is perhaps
what is reasonable according to the ordinary usages of mankind in
society, or, more accurately, in a particular society."
In the light
of the above discussion, I am clearly of opinion that, where there
has, as here, been an interference with the natural drainage of
a locality by one landowner to the detriment of another, the test of
reasonable user applies. I have not overlooked the fact that the
natural watercourse is not on the plaintiff's land. In my view, this
fact is not an obstacle. The natural watercourse is part of the
natural drainage system of the locality in which the plaintiff as
landowner has rights jure naturali.
13
What then is
the plaintiff's remedy? The court a quo thought that the plaintiff is
restricted to the actio APA and the interdictum QVAC. It can be
accepted that those two remedies still form part of the Swazi common
law; but I am entirely satisfied that neither is relevant in the
present context.
First as to
the actio APA; It is obvious that the claim here is not based on the
actio. A perusal of Voet 39.3.2 (Krause's translation) makes it, I
think, abundantly clear that the actio APA is wholly inappropriate.
As the name implies, it is an action for "warding off" rain
water. Voet says that -
"the
object of the action is that the construction shall be removed and
that the damage which has been occasioned after joining of issue,
from a construction made before, shall be repaired."
Such is
clearly not the object of the plaintiff's action. He is not asking
that a structure be removed and that damage subsequent to litis
contestatio be made good. The plaintiff's claim is for damages
resulting from interference with the natural drainage of the
area. The following passage from the judgment of Solomon J A in Cape
Town Council v Benning 1917 AD 315 at 321 brings out the point:
"It
would appear, therefore, according to these authorities, that the
owner of land upon which some work has been done, the effect of which
was to divert rain water from its natural course and to discharge it
onto the property of a third person, was liable to the owner under
the action aquae pluviae arcendae at most to abate the mischief and
to make good any damage sustained after litis contestatio; and
further that the person who had actually done the work, whether he
was the owner himself or a tenanat or other person, was liable for
the damage suffered before litis contestatio under an entirely
different form of action."
Next, as to
the interdictum QVAC: The "entirely different form of action"
contemplated by Solomon JA in Benning's case, is, in my view,
certainly not the interdictum QVAC The interdict is granted against
violent and secretive acts generally and is not special to water law.
It is directed against spoliation in respect of immovables. Thus Voet
XLIII Title 24.1 (Krause) says:
14
"By
means of the interdict quod vi aut clam the praetor frustrates the
cunning and malice of those who do anything by violence or secretly
in making or remaking some new work; for he commands that what has
been done by violence or clandestinely shall be put back into its
former condition (D.43.24.1); whether the construction be made in a
private, public, sacred or religious place (D.43.24.20); whether he
who makes it has or has not the legal right to execute it, as long as
he has acted contrary to the prohibition, and has not secured its
withdrawal (D.43.24.1.2.); just as is the case when notice has been
given objecting to the erection of a new construction, as has been
stated in the title de operis novi nuntiatione (Voet 39.1.7; Holl.
Cons. 3.2.97.2). Now a person is held to act secretly (clam) who,
when he ought to have given notice to another, has not given such
notice becasue he fears opposition or ought to apprehend it by
reason, it may be, of his ignorance due to his negligent
heedlessness; lest otherwise the condition of the foolish and
ignorant should be better than that of persons who knwo their legal
rights (D.43.24.3.7 and 8).....".
Voet then
deals with examples of violent acts coming within the interdict.
There is no restriction to water rights. In Section 2 Voet points,
out that the interdict is confined to immovables. He deals with those
who can employ it, against whom it lies and then turns to damages. In
regard to damages he says:
"The
damages must be estimated by the judge, or be fixed by judicial oath,
provided that the circumstances are such as to allow of such
procedure (D.43.24.15.9). And the wrongdoers must also make good what
the plaintiff has lost by reason of the wrongful acts; for instance,
if by reason of the construction some right attached to the immovable
property has been destroyed (D.43.24.21.3). In fact, and generally,
the function of the judge is that restitution should be made in such
a manner that the condition of the plaintiff shall be the same in
every respect as it would have been if that construction,
concerning which the action is brought, had not been made either
violently or clandestinely (D.43.24.15. 7). But if the defendants
indeed constructed the works without having possession, they must be
condemned to pay the plaintiff the cost of restitution, in addition
to damage. If they do possess, but the work is constructed by another
without their consent, they are not liable further than that they
must suffer the removal of the construction at the cost of him to put
it up. And, to summarise, he who constructs the work violently or
clandestinely and who is in possession must stand by and permit the
removal and pay the cost thereof; and he who constructs and does not
possess pays the cost; he who possesses but did not construct must
only permit the removal (D.43.24. 16. 2; D.39.3.4.3; do.5; read with
D.39.3.7 and D.43.24.7)."
15
In Section 3
Voet tells us when the interdict fails:
"But
the interdict ceases to be operative after one year, to be calculated
from the time the work was completed, or ceased to be carried on,
although at that time the work was not completed (D.43.24.15. 3 to
6). Or if the act is done but no work of construction results from it
(D.43.24.22.3). Or, if the plaintiff consented to the work after its
completion or during the course of construction (D.43.24.3.2.). Or,
if there be a just cause the work, for instance, agricultural
operations (D.43.24.7.7). Or, if the operations are undertaken
for the sake of checking a conflagration, and the the fire would have
reached the house which was demolished in order to check its course,
For if the fire would not have reached it, then this interdict would
be available, but not also the mixed penal action under the Lex
Aquilia (D.45.24.7.4 read with D.9.2.49.1; add Voet 9.2.28.). It
likewise fails in the case of him who ordered the work to be
constructed not on his own but on another's account (D.43.24.5.12).
Or, where the work has been done to a ship, or other movable
property, although of the greatest possible value (D.43. 24.20,4).
But if I have violently or clandestinely demolished that which
another has constructed violently or secretary, then as a general
rule, the interdict does not cease to operate; since the demolition
ought to take place under the authority of the judge. Unless an
urgent and very cogent reason exists to excuse a demolition made by
private authority (D.43.24.7.3.)."
(Emphasis
added)
It is quite
evident, therefore, that the plaintiff's action was not formulated in
terms of the interdictum QVAC and that the relief sought
(consequential damages only) is not appropriate to the interdictum
QVAC.
In my
judgment, the plaintiff's case is baded on the Lex Aquilia, But that
is not to say that a claim for an interdict based on the interdictum
QVAC could not have been advanced as well as a claim for damages
under the Lex Aquilia, I say nothing about that possibility in this
case. In Digest 9.2.50 (Lawson's translation in Negligence in the
Civil Law, p. 129) the following opinion of Ulpian on the Lex Aquilia
appears:
16
"If a
person demolishes another's house without the owner's consent and
builds baths on the site, then apart altogether from the rule of
natural law that erections belong to the owner of the soil, he is
also exposed to an action on the ground of damage done."
It may be
that the owner in that case might well have claimed an interdict by
the Interdictum QVAC as well, provided the circumstances did not
exclude that remedy.
In my
opinion the pleadings and the evidence in the present case being the
matter within the ambit of the Lex Aquilia. It appears from the
Digest 9.2.49.1 that it was Ulpian's opinion that.-
"The
saying that in the Aquilian action one can sue for damage done
wrongfully must be taken to mean that damage is held to be done
wrongfully when it inflicts wrong along with the damage."
It is true
that there is no allegation of wrongfulness in the plaintiff's
particulars of claim, but the facts are pleaded. An averment of
"wrongfulness" would then be tautologous. If the facts
disclose a wrongful act, that suffices.
whilst it is
true that relief under the Lex Aquilia requires "dolus or
culpa"it appears from Salkowski's Roman Private Law ( E E
Whitfiedl) P.515 that -
"Culpa
as a ground of obligation to make amends for damage comes into
account only -
(1) in
respect of damage to property by the wrongdoer, which engenders
an independent obligation ex delicto (damnum injuria datum ex 1
aquilia) -the so-called aquilian culpa. It here consists in illegal
positive action (culpa in faciendo), which already exhibits itself as
the violation of the general duty of citizens alterum non laedere;
(2) in
obligatory relations in which one violates the special positive duty
incumbent upon him to take some course of action on behalf of
another, or to avert damage (diligentia custodia).
17
It follows,
to my mind, given an invasion of a positive right conferred by the
common law or by statute that under Salkowski's first category
aquilian culpa is prima facie present. In the instant case, by the
common law of drainage, the plaintiff possessed a jus naturae as
owner of land to demand that the natural drainage which served his
land, be not disturbed to his detriment. The onus would be strictly
on the defendant to justify such disturbance; see the Zak River case
(supra). In this connection, the case of Bloemfontein Town Council v
Richter 1938 AD 195 is instructive. There the plaintiff claimed
damages and an interdict in respect of damage caused to his land
(which was riparian to the river) by the water works of the defendant
municipality. The defence of statutory authority was raised. The
defendant municipality proved that damage was an inevitable
consequence of the work carried out under statutory authority. In
answer to the plea of statutory authority, the plaintiff put forward
the case that the defendant had exceeded its statutory or servitudal
rights or had exercised its statutory rights unreasonably and
negligently. These defences had not been raised in the replication in
answer to the plea of statutory aurhority; but were considered by the
court; see the judgment of Curlewis CJ at p. 236. It was held that
the plaintiff had not discharged the onus of proving those defences.
It is important to note, however, that the matter of negligence was
canvassed only in relation to the plea of statutory authority.
Negligence was not the basis of, nor an element in, the plaintiff's
original cause of action which was simply that "the defendants
have unlawfully caused the water to be discharged onto and from
the plaintiff's property with greater rapidity, violence and volume,
in a non-natural flow and more concentrated form than was the case
prior to the opening of the said sluice gates." At pages 229-30
Stratford J A
remarked:
"The
term (nuisance) though not used by Roman-Dutch writers has been
introduced into South Africa from the English law and is often used
in judicial decisions and in legislative enactments. The idea
underlying the term is, of course, well known to our law: we merely
do not use the term in relation to the disturbance of a person's
right to the enjoyment of his land. The counterpart of an English
statement of claim founded on nuisance would, in our law, be a
declaration by the plaintiff that he is the owner (or occupier) of
land and that
18
his legal
rights of enjoyment of it are being infringed by another. And on this
pattern the present action is framed and, I think, correctly f
framed. No allegation of negligence is made since the action is not
based on it."
(Emphasis
added).
A similar
view of the law appears to have been taken for granted in the cases
of Reddy v Durbank Corporation 1939 AD 293 and in Johannesburg City
Council v Vucinovich 1940 AD 365. In Reddy the plaintiff claimed
damages, alleging that the defendant had constructed a road and
culvert in such a way that storm water accumulated at the culvert and
discharged onto the plaintiff's property in a volume and at a
velocity greater than would have been the case had the works not been
constructed, with consequent erosion and destruction of crops. The
works were carried out by the Durban Corporation under statutory
powers and, recognising this, the plaintiffs fornulated their claim
for damages in negligence. At page 296 Watermeyer J
A noted:
"Plaintiffs
recognise this (statutory authority) and accordingly they do not
claim that the defendant's acts of road construction and diversion of
storm water per se give rise to a cause of action. They base heir
case on negligence. They pick out faults in the method adopted by the
defendant to dispose of the stormwater. They say that these faulty
methods constitute actionable negligence causing damage, which they
seek to recover."
But earlier
on the same page, Watermeyer J
A remarked (obiter):
"Now
clearly, the construction of a road by the defendant which entailed
those consequences (increased volume and velocity) would be an
invastion of plaintiff's rights of ownership and would be actionable
unless authorised by Parliament."
There is no
suggestion in those remarks that liability for damages in the absence
of statutory authority would depend on proof of negligence.
In
Vucinovich the plaintiff's cause of action was formulated as follows:
19
"... in
the course of carrying on sewage disposal on the said site the
defendant wrongfully and unlawfully caused, allowed and permitted,
and still is wrongfully and unlawfully causing, allowing and
permitting sewage effluent and/or water to drain and percolate into
plaintiff's farm in such quantities and in such manner as to cause
the nuisance."
In the plea
the defences raised were (in the words of Ramsbottom J in the court
below:
"(a) That
at common law the defendant was not liable for injury sustained by
the plaintiff through the percolation of water which the defendant
had put on his land for the purpose of irrigation.
(b) That the
defendant was, in all the circumstances of the case, not liable to
the plaintiff for the damage suffered because of the immunity
conferred by section 161 of Ordinance 11 of 1926."
The
plaintiff claimed both an interdict and damages, and succeeded. On
appeal the only issue argued was the statutory defence. However, at
page 383 Feetham J A,
who delivered the judgment of the court which included De Wet CJ,
Watermeyer, Tindall, Centlivres J
J
A, noted:
+It is
established that in this case substantial injury has been done to the
plaintiff's property by the percolation of underground water from the
defendant's sewage farm, and it clear that, apart from the provision
of (the statute), the plaintiff would have a common law right to
recover damages for such injury and to claim protection from
continuance of such injury in future." (Emphasis added).
Again there
is no suggestion that fault in the sense of negligence was an element
in the plaintiff's cause of action. Negligence became an issue in the
case only as a defence to the defendant's plea of statutory
authority. There can, in my opinion, be no doubt that these cases
recognise quilian culpa in a wider sense than ordinary negligence. In
negligence the tests are foreseeability and remoteness:-
Santam
Insurance v Nkosi 1978 (2) (A); Dutton v Bognor Regis United Building
Co (1972) 1 ALL ER, 462 (CA) at 481.
20
The case of
Regal v African Superslate 1963 (1) S A 102 (AD) is also helpful.
This is not a case on water law. The result turned on the
discretionary power of the court to grant an interdict; but there are
dicta which are relevant here. The problem was that material
deposited in the bed of a river by a previous owner of a farm was a
threat to an adjoining farm owned by the plaintiff. He sued for an
interdict. Negligence was not averred. The action failed on the
ground that the plaintiff had not shown that the removal or
containment of the material was reasonably practicable for the
purpose of discretionary interdictal relied. The court was unanimous
in holding that the English law of nuisance was no part of the
Roman-Dutch law, but it would seem that in the relevant area, the
results are the same, Steyn CJ, Hoexter, van Blerk and Ogilvie
Thompson, J J
A treated the case as one of neighbour
law. As will appear from the judgments, neighbour law is a field in
which a number of praetorian remedies, each with its own special
content and limitations, still apply. Only Rumpff, J
A struck a discordant note., He thought
that, if damage did result, the plaintiff's claim for compensation
would have to be founded in dolus or culpa - culpa being understood
as "negligence" (onagsaamheid), "the culpa of to-day."
See generally the very helpful analysis of the Regal case in an
article by A. J.
E. Jaffey in Vol 87 (1970) SALJ 436. I
have derived much assistance from the article, although, with
respect, I think the conclusions reached (in my view) suffer from the
unjustified assumption that aquilian culpa is to be equated to the
"negligence of today."
At page 111
B C, Steyn CJ concluded that:
"Against
the previous owner (who had created the danger) the appellant would
in all probability have been entitled at least to recover damages
suffered or anticipated" (my translation).
There is no
suggestion that the negligence of today would be a prerequisite.
At page 114
C - D, Hoexter J A
said:
21
"In the
present case the defendant is the owner of property on which there is
an opus jam factum which threatens to cause damage to (plaintiff's
farm). As a result of this opus slate waste is being carried from
(defendant's farm) on to (plaintiff's farm) whenever the Elands River
is in flood. In effect, therefore, the defendant is (as it were
passively) using the Elands River as a conduit pipe to carry slate
waste from (his) farm on the (plaintiff's farm). That is an unusual
and unreasonable user of (his farm) by the defendant, and, in terms
of the judgment of this court in the case of Malherbe v Ceres
Municipality 1951 (4) SA 510 (A), the defendant is liable for any
damage caused to (plaintiff's fa farm) by such user,"
Again there
is no suggestion that liability would require the presence of the
negligence of today. Indeed the learned judge of appeal went on to
say at 114 H:
"(The
defendant's) liability is not based on any negligent act or omission
but simply on the wrongful user of his property to the detriment of
that of his neighbour. I am unable to see the relevance, in the
present case, of any doctrine relating to the law of negligence...."
Malherbe's
case concerned an application for an interdict in respect of nuisance
under neighbour law; but as pointed out by Jaffey (p 444) the
implication is that the same principle applies to a claim for
damages.
To the like
effect is the dictum of Van Blerk, J
A at page 115 A - B:
"My
view is, however, that the respondent as owner of the property will
be responsible, during the existence of his ownership, to the
appellant for damage caused by the wash of slate waste onto the
latter's ground." (my translation).
The judgment
of Ogilvie Thompson J A
has this passage (116 C - D):
22
"The
situation thus created by respondent's predecessor continues to
exist. That the law ought, under circumstances such as those, to
attach some liability to respondent, as the owner occupying land
whence the invading slate debouches, and will continue to debouch,
upon appellant's land appears to me to be eminently reasonable. The
vital question for decision, however, is the extent and scope of that
liability, which does not, in my view, depend on negligence."
(emphasis added).
It is
significant to note that the English law would, in like
circumstances, also attach liability even without negligence. Thus in
Rapier v London Transport Co (1895) 2 Ch 588 at 599, Lindley LJ said
that it was no defence to claim in nuisance that the defendant has
taken all reasonable precautions to prevent a nuisance. And in
Wagon Mound (No. 2) (1966) 2 All ER 709, Lord Reid giving the
judgment of the Privy Council said, at page 716 D - F:
"Comparing
nuisance with negligence, the main argument for the respondent was
that in negligence foreseeability is an essential element in
determining liability, and therefore it is logical that
foreseeability should also be an essential element in determining the
amount of damages: but negligence is not an essential element in
determining liability for nuisance, and therefore it is illogical to
bring in foreseeability when determining the amount of damages.
Nuisance is a term used to cover a wide variety of tortious acts or
omissions, and in many negligence in the narrow sense is not
essential. An occupier may incur liability for the emission of
noxious fumes or noise, although he has used the utmost care in
building and using his premises. The amount of fumes or noise which
he can lawfully emit is a question of degree, and he and his advisers
may have miscalculated what can be justified,, Or he may deliberately
obstruct the highway adjoining his premises to a greater degree then
is permissible hoping that no one will object. On the other hand the
emission of fumes or noise or the obstruction of the adjoining
highway may often be the result of pure negligence on his part."
To
summarise: In my opinion, this case falls within the first category
of Salkowski's definition of aquilian culpa and that negligence (in
which the tests are foreseeability and remoteness) is not an
essential element. Of course, aquilian culpa includes that kind of
negligence. In the present case there is no allegation of such
negligence, but there is an allegation and evidence that the
defendant has
23
interfered
with the natural drainage of the locality to the detriment of the
plaintiff. This is prima facie a breach of the plaintiff's jus
natura. It is then for the defendant to justify such interference on
the basis of reasonable user or otherwise. Although the theory of
strict liability nay well apply to certain of the praetorian remedies
for the protection of property, I do not think it has any relevance
in the present case. The plaintiff did not found his case on the
actio APA nor on the interdietum QVAC and he was not obliged to do
so; those remedies have no relevance here.
Accordingly,
in my judgment, the learned judge a quo erred in granting absolution
from the instance.
The appeal
should be allowed, the order of the High Court set aside and the
following order substituted: The application for absolution from the
instance is dismissed. The defendant is to pay all wasted costs
occasioned as a result of such application, such costs to include
those incurred as a result of the employment of two counsel. The
plaintiff should have his costs of appeal, such costs to include the
fees of two counsel.
Since
writing the above judgment I have had the opportunity of reading the
judgment of Isaacs, J A,
I think some comment from me is called for. I did not overlook
the fact that senior counsel for the plaintiff on a appeal conceded
that the claim did not fall within the principles of the Lex aquilia.
Hoever, he was unable to suggest an alternative cause of action and
the concession was thus of little assistance. It seems that he was
equating the culpa of the aquilian action with negligence in the
modern sense - "the culpa of today."
Mr, HA
Millner in his book "Negligence in Modern Law" (1967) says
at pp 9-10:
24
"In
other words the lex aquilia (especially the third
chapter)
contained the germs of a general remedy for damage wrongfully caused
by the defendant' s fault , By Justinian's time an extended aquilian
remedy exists side by side with the other delicts and quasi-delicbs
of the classical law, must as the tort of negligence exists side by
side with the nominate torts of English law. But its capacity for
expansion had by no means been exhausted and during the reception of
Roman law in Europe the civilians took over and emulated the aquilian
action, stripped of its penal characteristics as a general and
well-nigh exhaustive remedy for damage caused dolo aut culpa. In
short, the tendency of the evolution of the generalised fault
principle was to assimilate the individual delicts and quasi-delicts
of Roman law. However, the social necessity for retaining a strict
liability in certain classes of case continued, so that neither in
those systems in which the ,jus commune continued in face (e.g. South
Africa) nor in those in which the jus commune gave way to a code
(France, Germany, Italy), is strict liability eliminated.... The
growth of the fault principle latent in the lex aquilia thus
culminates in the 19th century in the continually expanding
generalisation of dolus culpa which submerges the bulk of the
separate delicts which once companioned it on terms of equality."
And at p. 27
Millner continues:
"The
Roman law, as Buckland points out, made no reference to a precedent
duty of care in the aquilian action, which is a remedy somewhat
analogous to the negligence action of the common law (England),
Culpa, unlike negligence, was not defined with reference to a
particular person or class. Failure to take that care which a
reasonable man, the bonus paterfamilias or paterfamilias diligens
would take was culpa; and if damage to property resulted there was
liability (subject only to a causal nexus)."
If that is a
correct analysis (as I think it is) there is, in my view, no
objection to the present action falling under the lex aqulia. The
defendant deliberately interfered with the natural drainage of the
locality; in so doing he caused damage to the plaintiff's land, Prima
facie the plaintiff's rights in the natural drainage were breached.
Ignorance of the law would be no excuse. To my mind, the case clearly
falls under the lex aquilia, just as if the defendant had wrongfully
killed the plaintiff's slave. The paterfamilias diligens does not
deliberately act wrongfully,
25
I do not
find anything in Voet 9.2.3 (relied upon by Isaacs, J
A) to the contrary. It is true that the
original culpa is rendered in Gane's translation as "negligence",
but there would appear to be no ground for reading "negligence"
in the narrow sense which implies forseeability, Isaacs, J
A takes the view that the case falls under
the praetorian edicts relating to the discharge of something (e.g.
water, smoke) onto the property of another. I do not find it
necessary to go into the question whether the plaintiff's claim for
damages could have been formulated under a praetorian edict. The fact
is that it was not so formulated. But, even assuming that an
appropriate edict can be found, that does not mean that action under
the lex aquilia is ousted. As pointed out by Millner (supra) by
Justinian's time the aquilian remedy existed side by side with the
other delicts and quasi-delicts. Presumably a praetorian edict would
only be selected as the basis for an action if it provided a special
advantage (e.g. no-fault liability) and was otherwise co-extensive
with the aquilian remedy.
Finally,
Isaacs, J A
holds the view that the action here is based on nuisance. Of course,
as was unanimously held in Regal's case, the English law of nuisance
as a cause of action is no part of the Roman-Dutch law. As to the use
of the the term "nuisance" in South Africa, the dicta of
Stratford, J A
in Richter's case at 229-30 (recited above) are to the effect that
the term was not used by Roman-Dutch writers and is not used in South
Africa in relation to the disturbance of a person's right to the
enjoyment of his land.
For the
above reasons I do not find any reason to alter my position.
(signed)
DENDY YOUNG
JUDGE OF
APPEAL
25th March
1981,
26.
ISAACS J.A.
I agree with
my brother Dendy-Young that the appeal in this natter should be
upheld. I agree also with the order proposed by him.
I cannot,
however, agree with that portion of his judgment in which he states
that plaintiff's case is based on the Lex Aquilia. In fact
plaintiff's counsel, Mr. Schutz, in his heads of argument and in his
address to this Court specifically conceded that neither dolus nor
culpa was pleaded and that the Aquilian action does not apply. This
was also common cause between counsel. I am of the view that under
the Lex Aquilia liability was based on either dolus or culpa and that
culpa meant negligence.(cf. Grueber Commentary on the Lex Aquilia p.
7). But whether or not Roman law required negligence as an element to
be proved in an action under the lex aquilia, in my opinion Roman
Dutch law does require this element. Thus Voet 9-2-3 states (Gane's
Translation Book 2, page 54-7):-
"Two
kinds of negligence are however known in our law, namely of
commission and omission, or consisting in doing and in not doing or
leaving undone. We should therefore bear in mind that only all damage
caused by commission or doing or by commission and omission together
was punished by the Aquilian Law, and not also that which arises from
omission alone for the reason that it would be too harsh for a person
to be held liable on wrongdoing for the slightest fault or omission."
The above
passage shows, in my view, that Voet considered negligence to be an
essential element under the Aquilian action.
There is no
doubt that in South Africa negligence has been an essential element
in the Aquilian action and I think in all countries which have
adopted the Roman Dutch Law, Negligence must be pleaded to establish
a cause of action and this has not been done in the present case,
27
I agree with
my brother Dendy Young in his statement that the dispute in the
present case must be decided in terms of the common law of water
rights and duties. There is no need to put a label on the plaintiff's
right of action but in my view on the terms of his declaration (which
are set out in the judgment of my learned brother) his action would
fall under the Roman Law actions based on immissiones. The immissio
of a corporeal thing on to another's property was actionable under
the Roman Law. This is referred to by Professor Schultens in 1956
Annual Survey at page 133 in which he gives the translation of Digest
8.5.8.5 as follows'-
"Aristo
says in an opinion given to Gerellius Vitalis that he does not think
that smoke can lawfully be discharged from a cheese factory on to
buildings which are overhead, unless the buildings are subject to a
servitude of that particular kind and such a servitude be
recognised. The same author declares that it is not lawful to
discharge water or anything else from the building above to the
building below as a man is at liberty to carry on operations within
his own premises in such a manner only as not to discharge anything
on those of anyone else; and it is, he adds, just as possible to
discharge smoke as it is to discharge water; accordingly he says the
upper owner can bring an action against the lower owner in which he
asserts that the latter has no right to act in the way described."
(see also Voet 8.5.5).
In my view
the English law relating to nuisance insofar as discharge of water is
concerned is very much like the Roman Law relating to immissiones,
and plaintiff's action could be based on nuisance. It seems to me
also that the extracts from the case of Bloemfonterin Town Council v.
Richter 1918 AD 195 quoted bymmy learned brother in his judgment in
respect of his view that plaintiff's action
28
is based on
the Lex Aquilia is relevant in support of my view that the action is
based on nuisance. The extract from the case of Johannesburg City
Council v. Vucinovitch 1940 AD 365 also quoted by my learned brother
is also relevant. I agree entirely with my learned brother that it
was not necessary for the plaintiff to allege or to prove negligence.
As I have
stated it is not necessary to place a label on plaintiff's right of
action. He has alleged in his declaration that an "excessive and
unnatural quantity of water" was discharged from defendant's
land and that such discharge had resulted in damage to his land. The
fact that the water was not discharged directly on to plaintiff's
land does not, in my view, affect the question of whether or not the
discharge of such water caused damage to the plaintiff as there is
prima facie evidence that damage has been caused to him by such
discharge. The defendant may, of course, show by evidence that in
discharging such water he was acting reasonably in the use of his own
land, but this appeal is only on the question of whether absolution
from the instance should have been granted at the end of plaintiff's
case and, as I have indicated, I am in agreement with my brother
Dendy Young that it should not have been granted and that therefore
the appeal should succeed. Apart from what I have said above as to my
disagreement with him as to his reference to the Lex Aquilia. I agree
with the rest of the dicta in his judgment and more particularly
with his view that in Roman Dutch Law the actio aquae pluvius
arcendae and the interdictum quod vi aut clam are not the only
remedies that are available when water is discharged from one
person's land in such a way as to cause damage to the land of another
and in my opinion any South African cases which may seem to show the
contrary are, with all due respect, not binding on Swaziland Courts.
(signed)
I ISAACS
JUDGE OF
APPEAL
