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
MARAIS JA

2 MARAIS JA:
Who chooses to ride a tiger will find it difficult to dismount it unscathed. Much the same can be said of the decision of the parties to this appeal to indulge in litigation rather than settle their differences in a less acrimonious and costly way. A spat between neighbours about a boundary line, the source of water allegedly finding its way onto the property of one of them, and some overhanging ivy has generated a record on appeal of 501 pages. A petition in which leave to appeal was sought from the Chief Justice generated a further 400 pages. A further petition in which leave to place further evidence before the court was sought has spawned another 378 pages. All this expense has been incurred in an attempt to resolve by litigation issues which would have lent themselves to relatively easy resolution if the parties had at the outset joined in appointing and allowing appropriate independent experts to do on both

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.
Appellant is the registered owner of his home at 15 Hamilton
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.
The case which respondent initially sought to make in the
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.
Before appellant could file his answering affidavit respondent filed

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.
"AND WHEREAS by reason of the contour of the land the storm and spring water from the property of the Grantee flows across the property of the Grantor;
AND WHEREAS it is expedient that facilities should be made for the drainage of the storm and spring water flowing from the Grantee's property over the Grantor's property along a specified route;
NOW THEREFORE THESE PRESENTS WITNESS:
The Grantor as the registered owner for the time being of the said Portion 1 of the said Lot No 557, situate in the TOWNSHIP OF CRAIGHALL PARK, hereby gives and grants to the Grantee as the registered owner for the time being of the said Lot No 561 situate in the TOWNSHIP OF CRAIGHALL PARK, who hereby accepts a servitude in perpetuity of drainage of storm and spring water from the Grantee's property over the Grantor's property along the route and subject to the conditions hereinafter set out.
1. THE servitude shall comprise a strip of ground two (2) feet wide running along and parallel to the whole length of the SOUTHERN boundary of the Grantor's property, and the Grantee as the registered owner for the time being of the said Lot No 561, TOWNSHIP OF CRAIGHALL PARK shall at all times be entitled and allowed to lead the storm and spring water from Lot 561, TOWNSHIP OF CRAIGHALL PARK over the said

8
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.
2.	THE Grantee as the registered owner for the time being of the said Lot
No 561, TOWNSHIP OF CRAIGHALL PARK or his nominee shall have
the right at all times to enter upon the premises of the Grantor for the
purpose solely of building, repairing or maintaining a suitable drain
whether it be an open furrow, either lined with brick or concrete or a pipe
either buried or upon the surface of the ground comprising the servitude
or such other system of drainage AS THE GRANTOR IN HIS
DISCRETION MAY DECIDE UPON.
3.	THAT the consideration payable by the Grantee to the Grantor in respect
of the Servitude hereby granted shall be the sum of 150,00 (ONE
HUNDRED AND FIFTY POUNDS) which shall be paid on the signing
of this Deed of Servitude.
4.	THAT the cost of preparing and laying and from time to time maintaining
the said servitude drain shall be borne by the Grantee hereto who shall
likewise bear the costs of preparing and registering this Agreement.
5.	The Grantor and the Grantee agree that this servitude shall be registered
against the Title Deeds of the properties affected thereby and they both
contract for themselves, their heirs, executors, administrators or
successors in title to their respective properties."

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.

10 Respondent alleged that from time to time stormwater emanating
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:
"1. That the (appellant) be interdicted and restrained from allowing stormwater and spring water flowing from his property, being Erf 561 Craighall Park Township, corresponding to 15 Hamilton Road, onto the (respondent's) property being Erf 557 Craighall Park Township, Johannesburg, corresponding to 11A Hamilton Road, Craighall Park, Johannesburg, beyond the servitude in favour of the (appellant) as contained in the agreement of servitude being Annexure "T" attached to the (respondent's) Affidavit.
2. Directing that the (appellant) build a suitable drain, whether it be an open furrow, either lined with brick or concrete, or a pipe either buried or upon the surface of the ground, comprising the servitude or such other system of drainage, as the (respondent) in her discretion, may decide upon in the servitude, as recorded on the Surveyor General's Plan being S.G. No. A 6058/52 which is attached to the (respondent's)

11
Affidavit as Annexure "A".
3.	Directing that the (appellant) perform such works being those referred to in paragraph 2 above within a period of two months of the grant of this Order, alternatively within such period as this Honourable Court deems meet.
4.	Directing that the (appellant) forthwith remove and cut back the foliage which protrudes and encroaches on the (respondent's) property, with particular reference to the area behind the cottage on the southern portion of the (respondent's) property, as illustrated oh the sketch plan being Annexure "Q" attached to the (respondent's)
affidavit.
5.	Directing that the (appellant) pay the costs of this application on the scale as between
attorney and own client, alternatively on the scale as between party and party."
I pause here to observe that it was implicit in respondent's case, and indeed its very foundation, that appellant had no right to discharge stormwater onto her property other than by virtue of the circumscribed right conferred upon him by the agreement or servitude.
Appellant responded to the application in this way. He criticised respondent for having set up the complaints originally raised by her without being able to substantiate them. Although respondent no longer sought in these

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".
Shorn of detail which tends to cloud rather than clarify the issues,
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.
In support of his denial that any surface water from his property

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:
The first answer was that respondent cannot say that a drain has not
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

15
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:
Appellant sought to characterise the ivy as a "party wall" in so far as it constituted "a mutual boundary" between the properties and contended that respondent was "obliged to maintain her side". He denied that the ivy protrudes substantially, that it is unsightly, and that it prevents respondent from gaining access to the area between the southern wall of her cottage and the fence separating the two properties. Any restriction of access he attributed to the building extensions undertaken some years before by respondent, and to certain walls on respondent's property. He said that it would be "physically impossible" to cut the protruding ivy from his side of the boundary fence without "totally destroying" the boundary fence. He said that "given access", and had he been asked to do so, he would have co-operated in trimming the ivy

16
even although it formed a mutual boundary. Some of the offending ivy had
already been cut (where accessible) by his wife "in an attempt to defuse a situation which had clearly got out of hand". Respondent had also cut some of the offending ivy away. Appellant alleged that he was "never properly or formally approached simply to cut the ivy" but coupled this with a denial that he was obliged to do so. The special costs order:
Appellant denied that there was any justification for such an order. He alleged that, in launching the proceedings, respondent had acted precipitately and in a high-handed manner, and without proper investigation of the issues. He suggested that the reason for her "haste to have (him) capitulate to her demands" was that he had objected to certain extensions which respondent proposed to make to the buildings next to her southern boundary.
Respondent thereupon filed a lengthy replying affidavit. Appellant

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.
As for the ivy, despite the removal of some of it by appellant since the institution of the proceedings, there remained a lot of "overgrown foliage" to which respondent could not gain access in order to remove it. Appellant had neither tendered to remove the offending ivy nor to allow respondent access to his property to enable her to remove it. In the circumstances respondent was entitled to an order compelling appellant to remove the offending foliage.
The motivation for the special costs order granted by the court a quo was based upon the manner in which appellant conducted himself while this litigation was in progress and was not related to his conduct prior to the commencement of litigation.

20 Counsel for appellant's contentions were these 
The stormwater complaint:
Drawing upon respondent's original, speculative, and subsequently
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.
Counsel emphasised that respondent was seeking final relief in
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:
Here again it was argued that there were irresolvable disputes of
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:
It was argued that the court a quo had been unduly critical of appellant's behaviour with regard to the conduct of the litigation and that respondent's own conduct had not been beyond reproach.
I turn to consider the contentions raised. Generally speaking, it is of course trite that where final relief is sought in motion proceedings, and the respondent seriously disputes allegations proof of which is critical to the applicant's success, the applicant cannot be granted the relief sought. It is no less trite that where there is no real dispute, in the sense that formalistic denials which may have been entered by the respondent are more apparent than real when regard is had to the affidavits as a whole, or where it is clear that the denials are not made bona fide, or where the denials are so palpably unfounded as to be incapable of being correct, it is open to a court to disregard the denials.

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:
Respondent's case, as I understand it, rests upon an assertion of law
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

26
servitude.
Loath as I am to take a position on the asserted proposition of law when the authorities have not been collected nor fully debated by counsel, I see no escape from it for reasons which will emerge. However, I shall say no more about it than is necessary to deal with the case. The historical background to and the origin of the modem rules of law which have evolved in this connection are explained and discussed in cases such as Relief v Louw 1874 B 165; Austen Bros v Standard Diamond Mining Co Ltd (1882) 1 HCG 363; Ludolph and Others v Wegner and Others (1888) 6 SC 193: Cape Town Council v Benning 1917 AD 315. Useful insights will also be found in Milton, The Law of Neighbours in South Africa. 1969 Acta Juridica 1 at 215 -233; Van der Merwe, Neighbour Law. 759 - 784 of Zimmerman and Visser, Southern Cross; Rodger, Owners and Neighbours in Roman Law. 141 - 166; Derham, Interference with Surface Waters by Lower Landholders, (1958) 74 LQR 361 -380. Important for

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

29
lower owner "if such increase be occasioned in the ordinary course of draining,
ploughing or irrigating the upper land, and be not greater than is reasonable under the circumstances". De Villiers CJ in Ludolph and Others v Wegner and Others supra at 200. See too Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 177; Labuschagne v Steyn 1920 OPD 20 at 23; Kohne v Harris (1899) 16 SC 144 at 145; Gorgens v Williams supra at 14.)
Whether or not the upper owner's powers in this regard are correctly characterised as servitutal as was done in De Villiers v Galloway. supra at 444, has been questioned, but it is unnecessary to decide the issue for the purposes of this case. See Retief v Louw supra at 174. So too whether or not what the upper owner may do, should be classified as a right or merely as a liberty. See Professor Derham's observations regarding the consequences of the choice at page 364 of the article in (1958) 74 LQR to which I made earlier reference.

30
Notwithstanding the existence of the cases I have cited, respondent
boldly contends that "in an urban residential area the owner of the lower property is not obliged to receive stormwater from a higher property". The authorities cited in support of the proposition are Bishop v Humphries supra; Green v Borstel 1940 (2) PH M 89 (W); Barklie v Bridle supra; Redelinghuis v Bazzoni 1976 (1) SA 110 (T); Grotius, The Jurisprudence of Holland. Vol 1 sec 2.34.16, (Lee's translation). In my view, none of these authorities support
the proposition.
Bishop's case was a case of interference with the natural flow of
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.
Green's case is also against it. There it was an upper owner who
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.
Barklie's case concerned an attempt by an upper owner to divert the natural flow of water from the property, to increase it considerably, to concentrate it, and to discharge it at a point most convenient to herself and most inconvenient to her lower neighbour. The court refused to allow her to do so. The case is no authority for the proposition that rainwater which would flow naturally from a higher property to a lower property must be prevented from doing so by the upper owner if the lower owner so demands.
The case of Redelinghuis is also of no assistance to respondent. It was not a case where the natural flow of rainwater was in issue.
The passage from Grotius appears to me to have been misunderstood. Commenting in the 1956 Annual Survey on recent cases involving problems arising out of the discharge of water onto neighbouring properties, and with particular reference to the cases of Barklie and Bishop

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.'
This rule exactly covers the facts of the present case. It is submitted that the decision in Bishop's case correctly states the Roman-Dutch law although a qualification is needed when the natural situation makes it impossible to discharge rainwater on to a street or road". (At 136.)
I explained earlier in this judgment why I do not consider that Bishop's case purports to support the notion that even rainwater which would have flowed naturally onto a lower owner's property must be prevented from doing so by the upper owner. I think it is reasonably clear that Grotius is not

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.
I have felt compelled to investigate the law despite the absence of
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

36
and possibly also to the addition of a rider confining the interdict to water in
excess of the historical natural flow or the addition of such other rider as might be appropriate, prayer 1 was properly granted. 5. If it is not, but the provision of the drain contemplated by the servitude would have prevented any water from flowing beyond the servitutal area, is prayer 1 inappropriate and is respondent's remedy, if any, confined to prayer 2? 6. In addition, there is a question which may be logically anterior to one or other or all of the previous questions. Is the agreement of servitude an exhaustive statement of the rights and obligations of the parties in regard to stormwater and spring water or does the common law still govern their relationship?
I was inclined initially to think that it might be possible to resolve these questions on the affidavits.' There appeared to be much to be said for the contention that the disputes of fact alleged to exist by appellant were more apparent than real. However, maturer reflection and a re-examination of the

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 should make it clear that it is for purely pragmatic reasons that
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

39
alive to that. For the rest, I abstain from commenting upon either the affidavits
or any of the other law points which are or may be involved in the resolution of the litigation.
I propose to uphold the appeal to the extent that all the orders (save the costs order against respondent (applicant)) made by the court a quo will be set aside and to remit the matter for the hearing of oral evidence in relation to all relevant disputes of fact which arise from the affidavits filed.
It is necessary to deal with the belated application by appellant to be allowed to place further evidence before this court. The application was withdrawn when the matter was called and a qualified costs tender was made. In my view, the application was so long delayed before it was made, and was so devoid of merit, that it amounted to an abuse of the process of the court and merits a special costs order. Appellant will be ordered to pay the costs of the application to re-open the case and to receive further evidence on the scale of

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.
The costs of appeal are not straightforward. Appellant has
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.
To recapitulate and particularise, the following orders are hereby
made:
1.	The appeal is upheld to the extent that all the orders (save the costs order against respondent (applicant)) made by the court a quo are set aside.
2.	The matter is remitted to the court a quo for the hearing of oral evidence in relation to all relevant disputes of fact which arise from the affidavits filed. These shall include the issues which have been identified in the judgment of this court, any remaining disputes of fact relating to the complaint about the ivy, and any other issues which are regarded as arising by either of the parties or by the court which hears the oral evidence.
3.	Appellant is ordered to pay the costs of the application to this court to
1.	
42
re-open the case and to receive further evidence on the scale of attorney and client and to pay on the ordinary scale the costs incurred by respondent in seeking condonation of her failure to respond timeously to the application.
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
CASE NUMBER: 265/96
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.	
C PLEWMAN JA