Pappalardo v Hau (63/08) [2009] ZASCA 160; 2010 (2) SA 451 (SCA) ; [2010] 2 All SA 338 (SCA) (30 November 2009)

Pappalardo v Hau (63/08) [2009] ZASCA 160; 2010 (2) SA 451 (SCA) ; [2010] 2 All SA 338 (SCA) (30 November 2009)

The Supreme Court of Appeal held that the lower owner is only obliged to accept the natural flow of water, defined as the flow that would have occurred prior to urban development. The respondent failed to prove what constituted the natural flow from his property to the appellant's property. The court found that the respondent's proposed drainage pipes would concentrate water at specific points, which is not permitted absent an express servitude. The Sandton Town Planning Scheme requires stormwater to be drained onto the street where practicable, and the evidence showed that the respondent could have drained water to Calleto Crescent. The respondent did not establish the amount of natural...

Citation
[2009] ZASCA 160
Parties
Appellant: Gianfelice Pappalardo; Respondent: Gary Hau
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 November 2009
Case Number
63/08
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court
Outcome
Appeal upheld. The order of the court below is set aside and absolution from the instance is granted to the appellant. The respondent is ordered to pay the appellant's costs, including the costs of the expert witness.
Judges
Streicher, Heher, Hurt, Leach, Griesel
Legal Topics
Neighbour Law, Drainage Rights, Urban Servitudes, Natural Flow of Water
Land and Property Neighbour Law Drainage Rights Urban Servitudes Natural Flow of Water

Case Brief

Summary, issues, holding and outcome

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Parties

Gianfelice Pappalardo

Appellant

Gary Hau

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court

Legal Issues

  1. 1 Whether the lower owner is obliged to accept rainwater flowing onto his property from the higher lying neighbour in an urban environment.
  2. 2 Whether the respondent is entitled to insert drainage pipes into the boundary wall to discharge water onto the appellant's property.
  3. 3 Whether the appellant's construction of the boundary wall unlawfully obstructed the natural flow of water.

Ratio Decidendi

The Supreme Court of Appeal held that the lower owner is only obliged to accept the natural flow of water, defined as the flow that would have occurred prior to urban development. The respondent failed to prove what constituted the natural flow from his property to the appellant's property. The court found that the respondent's proposed drainage pipes would concentrate water at specific points, which is not permitted absent an express servitude. The Sandton Town Planning Scheme requires stormwater to be drained onto the street where practicable, and the evidence showed that the respondent could have drained water to Calleto Crescent. The respondent did not establish the amount of natural...

Court Disposition

Appeal upheld. The order of the court below is set aside and absolution from the instance is granted to the appellant. The respondent is ordered to pay the appellant's costs, including the costs of the expert witness.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside and substituted with absolution from the instance.