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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 265/96 In the matter between
L W WILLIAMS     Appellant
and
J M HARRIS       Respondent
CORAM: SMALBERGER,NIENABER, MARAIS, SCOTT et
PLEWMAN JJA
DATE HEARD: 5 March 1998 DELIVERED: 29 May 1998
JUDGMENT
2 MARAIS JA:
3 properties what they regarded as necessary in order to arrive at the truth.
Instead, they have fought a long and costly battle in the courts. It is not
possible to say who was to blame for no settlement of the dispute having been
reached. However, it is now too late for tears.
Avenue, Craighall Park, Johannesburg which is situated on Erf 561 Craighall
Park Township. Respondent is his neighbour and the registered owner of her
home at 11A Hamilton Avenue which is situated on Portion 1 of Erf 557
Craighall Park Township. Appellant's property adjoins respondent's property
on the southern boundary line of the latter. After some preliminary skirmishing
by way of exchanges of correspondence, respondent launched motion
proceedings against appellant' in which she sought first, an order directing
appellant to remove a steel wire mesh fence approximately six to seven metres
in length which he had allegedly erected "some 550 mm into (respondent's)

4 property----- and which intrudes some 550 mm into (respondent's) property
on the southern side thereof; secondly, an order directing appellant "to restore
a wooden splitpole fence on the boundary line between (respondent's) property
and his, being the boundary line demarcated as D - C on the Land Surveyor's
Diagram A 6059/1952"; thirdly, an order directing appellant to give her
"vacua possessio of her property"; fourthly, an order that appellant remove ivy
allegedly protruding into her property and keep the foliage in a proper and
reasonable state; and fifthly, an order that appellant pay the costs of the
application on the scale as between attorney and own client.

supporting affidavits was that there existed on the boundary between her
property and appellant's property (shown as line D - C on the relevant
surveyor's diagram) a wooden splitpole fence. Ivy planted on appellant's side
of the fence allegedly covered the entire fence and protruded into and overhung

5 ... her property. It was alleged that flooding of outbuildings converted into a
cottage and a flat which respondent built close to the southern boundary in 1989
started to occur in 1994 and that the cause of the flooding was the diversion
onto her property of rainwater from appellant's property. That diversion was
said to have been caused by the removal of six to seven metres of the wooden
splitpole fence on the boundary line and its replacement by a wire mesh fence
which encroached some 550 mm onto her property. It was also alleged that the
ground level of appellant's property had been raised in order to erect the fence
and that that "had caused the natural flow of water to be diverted onto the
outbuildings and flat". The protruding ivy was said to prevent access by
respondent to the area between the wall of her outbuildings and flat and the
boundary and it was alleged that appellant had refused to control the growth of
ivy on the fence.

6 a supplementary affidavit in which she jettisoned most of the allegations she had
made in connection with the diversion of rainwater onto her property and set up
an entirely new case. The case now made was that respondent's property is
situate below that of appellant and that "some of the stormwater and spring
water falling on the (appellant's) land flows from a higher level to that of
(respondent's) property and therefore flows onto (respondent's) property". It
was alleged that "(w)ater flows freely off the (appellant's) land from
approximately a south-easterly direction to a northerly direction and flows onto
(respondent's) land". The erection of a dwelling house and other structures on
appellant's property was said to have altered the natural arrangement of the soil
and prevented the rainwater from flowing as it used to flow before the properties
were developed.
Respondent said that since commencing proceedings she had
become aware of a servitude over her property registered in 1954 in favour of

7 appellant's property. I shall quote only those parts of the servitude which are
material.

NOW THEREFORE THESE PRESENTS WITNESS:
Portion 1 of the said Lot 557, TOWNSHIP OF CRAIGHALL PARK along the strip of ground herein referred to into the Municipal Drain in Hamilton Avenue by means of the said drain hereinafter referred to.
9 The distance of two feet referred to in clause 1 is equivalents 0.63 metres
(630 mm). Respondent alleged that her earlier allegation that the wire mesh
fence had been erected some 550 mm closer to her property than the splitpole
fence had been, was incorrect and based upon an "assumption" founded on
advice she had been given by Mr Baikie, a land surveyor she had engaged. She
alleged that Baikie had since then had an opportunity of inspecting respondent's
property as a consequence of appellant commissioning him to survey the
common cadastral boundary between the properties, and that he had ascertained
that the existing boundary line does not accord with the cadastral boundary as
measured and surveyed by the Surveyor General. That section of the existing
boundary line (the fence line) which adjoined respondent's outbuildings was
found to be 450 mm closer to respondent's outbuildings at their western end,
and 140 mm closer to her outbuildings at their eastern end, than it should have
been. I shall refer henceforth to these outbuildings as the cottage.

from appellant's property flowed beyond the area to which the servitude relates
and dammed up against the external wall of the cottage. She asserted that it was
this water which was responsible for the flooding of the cottage and the
dampness of its walls. She complained that appellant's failure to build a
suitable drain as envisaged in clause 2 of the agreement of servitude was the
cause of the problem. In an amended notice of motion respondent sought orders
(corrected in terms of a concession made in argument) in the following terms:
Affidavit as Annexure "A".
3.       affidavit.
12 proceedings relocation of the fence as a consequence of an alleged
encroachment by appellant when re-erecting portion of it, appellant dealt with
the issue. He denied that when the relevant portion of the fence was re-erected
it was re-erected closer to respondent's cottage than it had previously been. He
maintained that the fence was re-erected in the same position as that in which
it had always been, that the fence had been regarded for more than 30 years as
demarcating the boundary of their respective erven, but conceded that "as now
appears common cause between the parties, such boundary does not coincide
with the boundary as shown on the Surveyor General's diagram".
appellant's further response may be summarised thus.
The stormwater complaint:
Appellant denied that any surface water flowing from his property onto
respondent's property "exceeds the servitude" or resulted in the damming up of

13 water and contended that respondent's allegation that it did, had not been
substantiated. He denied that water flows off his property onto respondent's
property "to any significant degree". He pointed to the shift in respondent's
stance regarding the cause of the alleged problem and attributed to her a new
contention, namely, that building development on appellant's property and other
erven in the vicinity had resulted in a situation in which appellant's "common
law rights to discharge the natural flow of water over her land no longer apply".
He alleged that the water flow had changed since the servitude was granted as
a consequence of the construction of homes "higher up with hard drainage
surfaces, drains, fences and swimming pools affecting water flows and
seepage". He also drew attention to other physical features upon and adjacent
to respondent's property which he contended could have played a causative role
in respondent's problems and for which he was not responsible.

14 was flowing beyond the area provided for in the servitude or indeed beyond the
fence, appellant produced certain photographs and annexed: a letter and sketch
from one Thompson, a damp proofing specialist; an affidavit and sketch by one
Brown, a civil engineer; and an affidavit and sketches by one Armstrong, a
certificated mine surveyor. Appellant also referred to what he regarded as an
irresolvable dispute of fact relating to the correct position of the cadastral
boundary. That, so he said, precluded the court from fixing the area over which
the servitude is to exist and disabled it from finding whether any water flow
exceeded the area of the servitude.
The demand for a drain:
been built because the servitude envisages the drain being buried and, for all
respondent knows, appellant's predecessor may have built one. A photograph
of an underground drain was annexed in support of the suggestion. The next

answer was that appellant cannot be compelled by respondent to exercise his
servitutal right and to build a drain if one has not yet been built. The protruding ivy:
even although it formed a mutual boundary. Some of the offending ivy had
17 was thereafter permitted without objection from respondent to file an affidavit
by one Midgley, professor emeritus of civil engineering of the University of the
Witwatersrand, in which he set about attempting to show that the development
of appellant's property has greatly reduced the quantity of rainwater that would
normally have flowed onto respondent's property if such development had not
taken place.
The court a quo (Coetzee J) granted respondent the relief she
sought and ordered appellant to pay the costs on the scale of attorney and own
client. Respondent was ordered to pay the wasted costs occasioned by the
amendment of the notice of motion and the filing of a further founding affidavit.
The judgment is reported - 1998 (2) SA 263 (W). With the leave of this court
appellant appeals against the granting of that relief and the order of costs made
against him.
The basis upon which the substantive relief claimed was granted,

18 was broadly the following. The properties are urban tenements in an urban area
the original contours of which have been disturbed by building and other ,
structural development to such an extent that whatever right may have existed
historically at common law entitling the owner of higher lying land to allow the
water from his land to flow onto another's lower lying land had come to an end.
The sole source of any right which appellant has to allow rainwater falling upon
his property to flow onto respondent's property is the registered servitude. If
appellant intends to avail himself of his servitutal right, he is obliged to provide
the drain contemplated by the servitude, and is also obliged not to allow water
from his property to flow beyond the area demarcated in the servitude. Upon a
proper analysis of the affidavits there was no real dispute as to whether or not
rainwater from appellant's land had flowed or would flow onto respondent's
land, or as to whether it had flowed or would flow beyond the servitutal area.
The volume was irrelevant.

19 The drain required by the servitude had not been provided. If a
certain drain which was found was indeed a drain installed in purported ,.
compliance with the servitude, it was not an adequate drain for it failed to
restrict water emanating from appellant's land to the servitutal area.

20 Counsel for appellant's contentions were these
The stormwater complaint:
withdrawn allegations as to the origin and cause of the flow of water about
which she complained, he submitted that her substituted allegations were
equally speculative and no more deserving of credence. She had not actually
witnessed water flowing onto her property from appellant's property and was
therefore in no position to compare any such flow of water with respect to its
route, velocity and volume, with what it was or might have been before
development of the erven occurred. The consulting engineer, one Lines, who
deposed to an affidavit in support of respondent's case, had made the bald and
unmotivated assertion that stormwater flowing off appellant's property dams up
against the southern external wall of respondent's cottage and is causing damage
to the internal finishes. His further affidavit (filed in reply to appellant's

21 answering affidavits) took the matter no further. It showed no more than that it
was theoretically possible that water could flow from appellant's to respondent's
property and failed altogether to address the question of whether any such water
would flow beyond the servitutal area.

motion proceedings and contended that all the key allegations made in support
of respondent's case were hotly disputed and, at worst for appellant, should not
have been accepted but referred to trial. (I interpolate here that neither party
asked the court a quo to order the hearing of oral evidence.) At best for
appellant, the application should have been dismissed. He submitted that the
resolution of the issues was complicated yet further by the existence of a dispute
as to the precise location of the correct boundary between the two properties.
That dispute would fall to be resolved in other pending trial proceedings in
which encroachment was the issue. It was argued that the court a quo had

22 adopted too simplistic an approach towards both the factual and the legal issues,
and that it had wrongly characterised as common cause, or as not seriously
challenged, a number of allegations by respondent which were in dispute. It was
said that it had misunderstood the import of some of the affidavits filed by
appellant and unjustifiably extracted from them concessions and admissions
which had not in fact been made. Finally, and somewhat laconically, it was
submitted that "(I)n any event, the appellant had for many years put his land to
its normal use". The sole reference to authority for this proposition was the
case of Barklie v Bridle 1956 (2) SA 103 (SR) at 108 A-C.
The demand for a drain:
The dispute of fact as to whether or not a suitable drain had been
provided by a predecessor in title was said to be largely irrelevant because
appellant was under no obligation to provide or maintain such a drain. The
court a quo was said to have been wrong in saying "The fact that a suitable drain

23 has to be constructed is common cause". In the alternative, it was contended
that the order granted in this respect is "so vague and uncertain" that it is
incapable of implementation and should not have been granted.
The protruding ivy:

fact which were not capable of being resolved against appellant in motion
proceedings. It was contended that "on the respondent's own approach" there
was a dispute which was the subject of a pending trial action as to the correct
location of the cadastral boundary between the properties and that, if respondent
is correct in alleging that the entire fence encroaches upon her property, the
"overwhelming probability" is that the ivy is situated on her own property. Even
if there remained, after the trimming which had taken place since the
commencement of proceedings, some areas in which there was protruding
("overgrown") ivy, there was more than ample room for respondent to gain

24
-access to it from the western side and to trim it herself.     
The special costs order:

25 (The examples I have given of disputes of fact which are not real are not
intended to be exhaustive, merely illustrative.) With that in mind I approach the
alleged disputes of fact.
The stormwater complaint:
and three related allegations of fact. The assertion of law is that appellant has
no right to allow rain water to flow from his property to respondent's property
save in accordance with the servitutal right registered in favour of his property.
The allegations of fact are: first, that appellant is allowing the rain water which
falls on his property to flow onto her property; secondly, that that water is
flowing onto her property beyond the strip of land which is burdened by the
servitude; and thirdly, that the water which flows over or collects upon the strip
of land burdened by the servitude, is not being led away in the manner provided
for by the servitude, namely, by means of a drain of the kind referred to in the

servitude.
27 present purposes is the distinction drawn between urban and rural environments.
In bygone days the distinction affected not only the substantive rights and
obligations of adjoining owners but also the choice of procedural remedy. The
choice of procedural remedy became progressively less critical as the
preoccupation of jurists with formulary procedures diminished. However, the
greater tolerance which an owner of rural lower lying land was expected to show
towards water flowing onto his land from his neighbour's rural higher lying land
persisted. The level of tolerance required from his urban counterpart was not the
same. Yet a basic proposition appears to have been common to both rural and
urban environments, namely, that surface water such as rainwater flowing
naturally by reason of the respective situations of the respective properties
(natura loci) from one to the other, can give no legitimate cause for complaint.
See Retief v Louw supra at 174; Ludolph and Others v Wegner and Others
supra at 198; Van der Merwe v Van Dyk (1899) 17 SC 538 at 539; Dickens v

28 Lake (1906) 23 SC 201 at 204; Bhayroo v Van Aswegen 1915 TPH 195 at 196:
New Heriot G M Co Ltd v Union Govt 1916 AD 415 at 421: Cape Town
Council v Benning supra at 320; Bishop v Humphries 1919 WLD 13 at 17;
Barklie v Bridle 1956 (2) SA 103 (SR) at 108; De Villiers v Galloway 1943 AD
439 at 444; Gorgens v Williams 1946 CPD 10 at 16. It was otherwise where
there had been human interference with the natural state of things so that the
rainwater was artificially diverted from its natural course, or its volume or
velocity increased. See Retief v Louw supra at 173, 174; Austen Bros v
Standard Diamond Mining Co Ltd supra at 375; New Heriot GM Co Ltd v
Union Govt supra at 421: Cape Town Council v Benning supra at 320; Bishop
v Humphries supra at 16 - 17; Barklie v Bridle supra at 108; De Villiers v
Galloway supra at 444. Cf Johannesburg Municipality v Jolly 1915 TPD 429
at 432 - 3. (This was not necessarily so where rural lands were concerned; an
upper owner could increase the flow or volume of water to the detriment of the

lower owner "if such increase be occasioned in the ordinary course of draining,
Notwithstanding the existence of the cases I have cited, respondent
the proposition.
rainwater. It was said explicitly that the right asserted (and denied by the court)
"is a very different right from that relating to the flow of surplus rainwater
during or after a storm in the way in which it used to flow while the land was in
its natural condition". (At 17.) In other words, the learned judge was contrasting
the spurious right asserted with the different and legitimate right to allow

31 rainwater to flow down to a neighbour's property if that is a naturally occurring
phenomenon. The decision is in fact against the proposition for which it is cited
by respondent.

sought an order compelling a lower owner to demolish a wall which the latter
had erected to prevent rainwater flowing onto his property. The order was
refused because it had not been proved by the upper owner that the rainwater so
obstructed was no more than would have flowed onto the lower owner's
property if there had been no buildings erected on the upper owner's property.
It is inherent in that conclusion that if it had been established that the wall had
been erected solely to obstruct rainwater which would have flowed naturally
onto the lower property, demolition would have been ordered. Implicit in that
is that the upper owner cannot be prevented from allowing rainwater to flow to
the lower lying property, provided that he has not artificially worsened the

32 position of the lower owner.

33 supra Professor Scholtens said: "The decision (in Barklie's case) is correct, but
it could have been arrived at in a less roundabout way. Direct authority is
provided by Grotius, 2.34.16, who says with regard to urban tenements (Lee's
translation):
'For by the common law every one must lead his water on his own land, or over his own land out to the street.'
34 speaking of naturally flowing rainwater but of water (whether it be rainwater or
not) which has been artificially collected by the upper owner and which is
sought to be discharged on to the lower owner's property. Such an
interpretation harmonises the passage with another passage from Grotius.
namely, 2.35.17, in which he said: "By the common law any one may let his
water flow in its natural course, from which comes the old proverb 'if water
hurts you, you may turn it away'". (Lee's translation) The competing
interpretation would result in attributing a self-contradiction to Grotius - a
highly unlikely postulate. I am aware that the first passage cited occurs under
the rubric of urban servitudes and the second under that of rustic servitudes but
I do not think that Grotius was confining his observation in the latter to rural
situations. If it was indeed so that a fundamentally different principle applied
in urban situations I would have expected Grotius to pointedly draw attention
to the contrast. See too the observations of Kuper J in Benoni Town Council v

35 Meyer and Others 1959 (3) SA 97 (WW 101 A-E.

full argument in order to identify what the relevant factual issues are which arise
and then to consider whether or not they can be resolved on the affidavits. The
questions which seem to me to arise as a consequence of my consideration of the
common law are these: 1. Is it so that rainwater from appellant's property is
flowing and will continue to flow onto respondent's property? 2. If it is, is it
flowing beyond the area to which the servitude relates? 3. If so, is it flowing
in a volume, or in a manner, or with a frequency, which would exclude the
operation of the maxim de minimis non curat lex? (This could include the
question of whether damage has been or might be caused.) If the answer is yes,
a further question arises. 4. Is the rainwater in question or the inconvenience
of the manner of its arrival more than would have had to be tolerated if it had
flowed there natura loci? If it is, and subject again to the de minimis principle

and possibly also to the addition of a rider confining the interdict to water in
37 affidavits have convinced me that while that may well be so in some instances,
it is not so in others. Any attempt to resolve the disputes solely by reference to
the affidavits could result in an injustice being done to one or other of the
parties. It is a conclusion I reach reluctantly and with regret for it prolongs this
unfortunate litigation yet further. Neither party asked the court a quo to refer
the matter to trial and the question arises whether respondent's application
should not simply have been dismissed. I do not consider that that would have
been the proper course to take. The claim was for an interdict to protect
respondent from having her property damaged by water allegedly emanating
from appellant's property. If the claim was a justified one the institution of a
trial action would have resulted in a lengthy delay in the obtaining of any relief.
The use of motion proceedings was understandable. Somewhat less
understandable was the decision to seek final rather than interim relief. Perhaps
the perceived need for an order in terms of prayer 2, involving as it did the

38 construction of a drain, made interim relief seem unattainable. However that
may be, a simple dismissal of the application would have left a festering and
continuing problem unresolved with all the potential for ongoing hostility
between neighbours that that would entail. It was, I think, a case in which the
court a quo should mero motu have ordered the hearing of oral evidence and that
is the order which I consider should now be made.

I have taken the debatable and unusual step of dealing with one of the law points
which arises in the litigation even although it was not argued as fully as I would
have wished and even although it is another court which will decide the fate of
the litigation. The case was approached by the court a quo on the premise that
at common law no rainwater at all which emanated from appellant's property
had to be tolerated by respondent. If that premise is wrong, as I consider it to
be, it would be as well for the court which deals with the matter hereafter to be

alive to that. For the rest, I abstain from commenting upon either the affidavits
40 attorney and client Appellant will also be ordered to pay on the ordinary scale
the costs incurred by respondent in seeking condonation of her failure to
respond timeously to the application.
achieved some success in that the orders of the court a quo given against him
have been set aside. As against that, he too failed to ask the court a quo to do
what I have held should have been done, namely, to order the hearing of oral
evidence. It may yet appear when oral evidence is heard that appellant's
denials were hollow and that his conduct during the litigation justified the
granting of a special order for costs against him such as was made by the court
a quo. To make now an irrevocable costs order in his favour could work
injustice. If, on the other hand, his defence is sound, it will follow that his
recourse to this court was justified, that respondent's resistance was not, and
that she should be ordered to pay the costs of appeal (other than those relating

41 to the abandoned application by appellant to be permitted to place further
evidence before this court). In the circumstances, a special order would be
appropriate. (Cf Nortje and others v Attorney General, Cape 1995 (2) SA 460
(C) at 485 F -I.) The costs of appeal (other than those relating to the aforesaid
application) will be costs in the cause.

made:
1.       Appellant is ordered to pay the costs of the application to this court to
1.      

4. The costs of appeal (other than those referred to in paragraph 3) shall be costs in the cause.
R M MARAIS
Smalberger JA ) Nienaber JA ) Concur Scott JA )

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between:
L W WILLIAMS     APPELLANT
and
J M HARRIS       RESPONDENT
CORAM:   SMALBERGER,NIENABER,MARAIS,
SCOTT and PLEWMAN JJA
DATE OF HEARING: 5 MARCH 1998
DATE OF JUDGMENT:
JUDGMENT PLEWMAN JA

2 I approach the legal questions raised in Marais JA's judgment
with even greater misgivings than he does. This is because in the
present case a proper discussion of and application of the principles
is bedevilled by a serious factual uncertainty. Firstly the role to be
played by the registered servitude is difficult to determine because
there is no clarity as to precisely what the flow of water is and what
the source thereof is. Secondly the law in the cases referred to has
always been considered in the light of specific factual situations. It
seems to me that before one can say that Grotius 2.34.16 has been
misunderstood or that Digest 3.1.17 is not an direction to some other
substantive solution one would have to obtain certainty as to what the
factual matrix is which has to be considered. That is precisely what
is lacking in the present case.
Save for these observations I concur in the judgment of
Marais JA.      

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