the High Court of Swaziland
Case No. 1169/90
the matter between:
Motors (Pty) Limited Defendant
PLAINTIFF Mr. Flynn
DEFENDANT Mr. Currie
plaintiff operates a restaurant in the industrial estate on the
southerly side of Mbabane. The premises are situated on the side of a
hill, immediately above the road. They share a common boundary with
the defendant's business premises, on the north side. Immediately
behind and above the restaurant is a funeral service, and higher up
behind that are business premises that used to be those of Mbabane
Engineering Company Limited.
hill is fairly steep. To explain the present dispute, it is necessary
to describe briefly the arrangements that existed, at the times to
which the dispute relates, for the drainage of rainwater from the
high, fairly long building on the defendant's property forms, in the
upper north portion, the physical boundary of
plaintiff's land. On the plaintiff's side an open drain runs down the
boundary. At the top end, it is some distance away from the
defendant's wall, but as it runs down the hill it gradually curves
in. At the lower corner of the defendant's building, the open drain
is close to the wall. There it empties into a large catchpit. These
last two aspects can be seen in photograph 5 in Exhibit Dl and in
closer detail in photograph 9 in that Exhibit.
contrast, photographs 1 and 7 in the exhibit show the open drain at
different points as it rises up the hill. These indicate its
increasing distance from the defendant's wall.
catchpit has two outlets. The lower one carries water back on to the
defendant's property, on the lower side of its building. The higher
one carries water down downwards towards the road. Both of them, for
the purposes of this case, carry water away from the properties to be
disposed of elsewhere.
open drain which leads rainwater into the large catchpit receives
water from the defendant's roof.
is a dispute, which is central to this case and to which I will
return, as to how it did so at the times to which the case relates.
It also receives water from a ground pipe that discharges into it
from the defendant's premises in the upper north corner of the
plaintiff's land, two ground pipes above the drain which discharge
water from the former engineering premises, and the roof of a lean-to
on the northern side of the funeral premises.
restaurant is built into an excavation in the hill in such a way that
the rear wall of the building is hard against the excavated bank, and
extends only a short distance above ground level. The roof of the
restaurant slopes down toward the rear. This can be seen in
photograph 5 in Exhibit D1. The photograph is taken looking down
the road. It also shows the lower end of the defendant's wall, as
well as the lower end of the open drain that I have already
mentioned, as it reaches the large catchpit.
shallower drain runs along the back of the restaurant. It runs the
full length of the rear wall, but roughly half way along there is
something of a ridge or a high point. The effect of that is that
water which falls off the roof to the south of that high point is
carried away to the south, as is water falling on the funeral
premises to the southerly side of the ridge.
water which runs off the northern part of the restaurant roof to the
rear of that building is carried to the north in the drain, which
then turns east parallel to the lower end of the other open drain,
and drops steeply down to a smaller catchpit, which is below and to
the south of the large catchpit.
course of this smaller drain and the smaller catchpit can be seen in
photograph 1 in Exhibit D2 and in photographs 5, 6, 13, 14, 15 and 7
in Exhibit D1.
can be seen from these photographs that as the smaller open drain
comes around from the rear of the restaurant, it passes above and
around a flight of open steps that run up the north side of the
restaurant, and then descends to the small catchpit on the northern
side of the steps.
smaller open drain also receives rainwater from the roofs and the
land of the funeral premises lying to the north side of the high
point or ridge, at the rear of the restaurant, that I have referred
the bottom of the steps, the restaurant has an open storage yard
enclosed by meshed wire. This can be seen in photograph 17, in
is not in dispute that during heavy rains on 12th January 1990 and
again on 2nd April 1990, the plaintiff's restaurant was flooded by
rain water that entered a door within the open enclosure, and then
passed through an inside storeroom and the kitchen into the lower
restaurant, with the water level reaching the height of a person's
knee. I do not think it is really in dispute either that as a result
of these two floods, the plaintiff suffered damage in the ways and to
the extent described by its managing director in her evidence.
issue in the case is to how these floods were caused. The plaintiff
contends that; the defendant negligently allowed rain water to
overflow off its roof along its boundary with the plaintiff's land,
and that this resulted in the flooding of the restaurant. It is
saying, to put it another way, that if the defendant's roof had been
properly guttered and provided with drain pipes (as the plaintiff
says it now is), then neither of the floods would have occurred, that
by failing to provide proper guttering and drainpipes, the defendant
caused the floods, and that in not providing them, the defendant was
plaintiff has the onus of proving that allegation on a balance of
witnesses were called on its behalf.
Hlatshwayo, the managing director, said that in 1990, stormwater from
the defendant's roof ran off it into the large open drain on the
property. Before the second flood, the roof was unguttered on that
side. It overlapped the building significantly. She said that it
extended to such a degree that the water that fell from it landed
outside the drain. Her evidence in chief was that instead of running
into the drain, the water ran down the ground ending up in her yard.
By "yard" I understood her to refer to the area of the open
enclosure. On 12th January it ran on from the
into the inside store room, causing the flooding. She estimated that
it continued to run in from about 3.30 p.m. until about 6 p.m. On 2nd
April, a similar flood occurred. Again the water floured off the
defendant's roof into the restaurant.
the second flood she and her attorney met with a Mr. De Sousa, who is
the defendant's financial manager. He inspected the side, concluded
that the roof was overlapping the drain, so that the water fell
beyond it, and undertook to repair it. Soon afterwards, the defendant
had about half a meter trimmed off the roof. It installed a gutter
along the length of the wall, with two down pipes. This gutter, and
the down pipes, which Mrs. Hlatshwayo said were installed after the
flooding, can be seen in photograph 14 of Exhibit Dl. Photograph 1 in
the exhibits shows the continuation of the guttering around the
corner at the lower end of the building. Whereas it is flat against
the wall on the southern side, it is in fact further out on the lower
eastern side, being attached to the overhanging eave that is on that
side. It can also be seen that it is only the end of the lower side
that is at the corner that has this continuation of the guttering.
The greater length of the eastern side is unguttered, and overhangs,
as does the northerly side. The overhang on the northerly side is in
fact quite extensive.
Hlatshwayo testified that since the roof was guttered, no further
floods had occurred. The down pipes lead the water into the drain.
When the floods had occurred, it had not been possible for the water
to run into the large catch pit. It ran outside it, taking a
different route, and finding its way into the restaurant.
cross-examination, she said that she had seen the water coming from
the defendant's property into her storeroom and that it was the only
water that did so.
Currie then questioned her as to whether her own drain often become
clogged. She denied this and said that it was always kept clean.
Counsel then showed her photographs 10 and 8 in Exhibit D1, which
show debris and rubbish in the large catchpit and the water level a
little way above the position of the grid in the pit, which is
perhaps one third of the way down it. She agreed that that kind of
thing sometimes happened but said that nevertheless someone would
Hlatshwayo denied that water had come into her storeroom from the
small catchpit, saying that only a small amount flooded down that
re-examination, she said that although the catchpits were normally
cleaned daily, they were sometimes cleaned every second day, and that
she had never seen them overflow as a result of being clogged.
second witness for the plaintiff was Mrs. Lessiah Dlamini, who was an
employee in charge of the restaurant.
testified that on 12th January 1990, it had rained from about 2 or
2.30 p.m. until about 5.30 p.m.
said that when the water began to flow into the restaurant, she went
outside to have a look at the source of the flooding. When she did
so, she saw a large amount of water coming off the defendant's roof,
and falling beyond the open drain leading to the large catchpit. It
flowed towards the steps and on towards the door, i.e. to the
cross-examination, the witness said that the defendant's roof
overlapped the larger open drain at the time of the flood, and that
it had no guttering or down pipes.
also said that the water from the restaurant's roof could easily be
taken into the smaller catchpit, and that what she had seen was a big
quantity of water falling from
defendant's roof beyond the large open drain, on to the steps and
then into the storeroom. She did not see it coming from any other
source, but did not know, however, if there had been other sources
because the rain had been very heavy.
answer to a question that I put to her, Mrs. Dlamini said that she
could not tell if the smaller catchpit was overflowing because of the
large volume of water. She had not noticed water spilling over the
bigger catchpit but only from the top, by which I understood her to
be referring to water coming from the defendant's roof.
the defendant, Mr. Jose Rodriguez testified that he was the company's
general manager, and had been with it for eighteen years. He
testified that the guttering and down pipes on the south side of its
building had been there for more than four years. He added that it
was close to five or six years - and that they had definitely been
there before 1990.
cross-examination he said that Mr. De Sousa, as the financial
manager, had been dealing directly with the plaintiff and attorneys.
Mr. Rodriguez was aware that he had met with Mrs. Hlatshwayo and her
attorney, but was not sure where. The general manager said that he
was not aware that his company had agreed to repair its roof and
gutters, and he did not think that such an arrangement had been made.
He did however remember that there had been some discussion about
repairs to the building as a result of a meeting between Mr. De Sousa
and Mrs. Hlatshwayo, but there had never been any alterations
afterwards, and nothing had been decided. The witness said that he
was not familiar with the overlapping of the roof, and that he did
not know anything about part of it having been cut off. He confirmed
that Mr. De Sousa still worked for the defendant.
De Sousa was not called as a witness for the defence.
Bagshaw, an insurance assessor for the Swaziland Royal Insurance
Corporation, produced and described the series of photographs he had
taken which are contained in Exhibits Dl, D2 and D3. He had taken
them on different visits to the locality, after the two floods.
to photograph 8 in Exhibit Dl, he said that at the time the
photograph was taken, the pit depicted was full of rubbish which was
obstructing the flow of water. Photograph 9, which also depicted
this, had been taken on a different day.
also said that the photograph marked 3 in the second numerical
sequence in Exhibit Dl showed the smaller catchpit full of debris.
D2 included a series of photographs that he had taken after heavy
rain had fallen in the late afternoon of 21st March 1991.
2, 3 and 4 in this exhibit showed debris on the steps and photograph
5 showed the larger catchpit. Further photographs in this exhibit
showed debris in the smaller catchpit on a later visit.
D3 contained a series of photographs showing debris and silt in the
drain, and in the small catchpit, and around them on a further visit.
defendant also called Mr. Duncan Little, a civil engineer in private
practice of many years standing, whose specialisation was public
health or environmental engineering, including water engineering.
testified that he had been asked to report on the rainwater falling
around the plaintiff's premises with particular reference to the flow
of water onto and off the property.
described the system of drainage that I have already-recounted,
noting that because Mbabane Engineering Company Limited was built
with impervious materials, the plaintiff's land accepted a run—off
of almost 100 percent of the water falling there and draining into
the plaintiff's property.
Little said that on his first visit, there had been a lot of waste
material in the large catchpit. Waste material would tend to block
its outlet and create a risk of overflowing.
had calculated the capacity of the large catchpit to accept and drain
rainwater. By his calculations, assuming a cloudburst of a severity
that would be likely to occur only once in every hundred years, the
volume of storm water flowing into the large catchpit would be
smaller than its capacity to discharge water through its outlet. He
also considered, on the basis of an educated estimate based on his
experience rather than by precise calculation, that the smaller
catchpit would also cope in these conditions with the water that fell
into its catchment area. He considered that the amount of water that
came off the defendant's roof was relatively small. In his evidence
in chief, he thought that it was very unlikely that it could lead to
knee-deep flooding in a store room.
Little also said that his conclusion assumed that the outlets were
unblocked. He was saying, in effect, that they would not necessarily
carry the water load if they were blocked.
cross-examination, he said that he based his calculations in respect
of the large catchpit on the premise that all the water from the
defendant's roof would fall into the larger open drain. It would have
done so, in his opinion, if the overhang had not exceeded 800
millimetres. If it extended further than that, the water could be
If there were a major downpour, in that event, it could go over the
steps along with water from the funeral premises, but the quantity
would be relatively small compared with the water from the funeral
service and the restaurant roof. However, although the water from the
defendant's roof might wet the floor of the restaurant, he did not
think it would cause knee-deep flooding. Mr. Little said that he was
prepared to concede that Mr. Flynn's hypothesis, i.e. the plaintiff's
allegation, could have a contributory effect, but he thought it would
be a relatively minor one.
Flynn then proceeded to elicit from the witness that he had thought
that the flood had occurred in the restaurant's storeroom. He would
need to know (but had not seen) the layout of the lower restaurant to
decide whether it could be flooded. He had not taken that into his
Little thought that in a severe storm, some of the water coming from
the restaurant roof and the funeral premises would probably overflow
on to the steps, i.e. from the drain leading to the smaller catchpit.
At that point in his cross-examination, he also said that he thought
a small amount of the water from the restaurant's roof would run the
other way, i.e. to the south.
Mr. Little had given his evidence, a second view of the site was
taken. Thereafter he returned to the witness to confirm things he had
indicated at that view. In answer to further questions by Mr. Flynn,
he agreed that he had not realised earlier that the southern portion
of the smaller open drain carried off almost half of the water from
the restaurant roof, i.e. to the south.
Little thought that the defendant's guttering and pipes were probably
about 6 or 7 years old, but said that they could have been put up in
1990 if, for example, they had not been adequately primed.
understand the plaintiff's case, as it was put, to depend on the fact
(if that is the case) that at the time of the floods the guttering
and down pipes that are now on the south side of the defendant's
building were not there. If they were in place, then as I understood
it, the plaintiff would not contend that the defendant was negligent.
Its position would be that the flooding would never have occurred
because that gutter and the pipes would have coped (which was also
the view of Mr. Little). It was because the roof extended so far
beyond the wall of the building, and lacked any kind of guttering,
that the floods did occur and, it is alleged, the defendant was
negligent in failing to foresee this and to take steps to prevent it
three of the witnesses who were called were in a position to claim to
be able to say whether the roof lacked guttering, and extended
significantly beyond the south wall, before the flood.
Hlatshwayo and Mrs. Dlamini both said that that was the case. They
went further than this, and said that it was because of this that the
water from the defendant's roof was dropped beyond the larger open
drain. They asserted that they saw these things. Mr. Little's
evidence was that if the gutter and down pipes had been in place, it
would not have done so.
Hlatshwayo also said that it was only after the flood, but soon
afterwards, following her meeting with him, that Mr. De Sousa had the
overhang cut back and the gutter and pipes installed.
Rodriguez said that the gutter and pipes were in place before the
consideration, for a combination of reasons, I have come to the view
that I prefer the evidence of the plaintiff's
to that of Mr. Rodriguez as to whether the pipes and gutter were in
place. I believe that the two women are probably telling the truth.
of them appeared to me to be an evasive or otherwise unconvincing
witness. They both described what they saw during the floods. None of
the other witnesses actually observed the flooding as it occurred.
Mrs. Hlatshwayo did describe in some detail the way in which the
water came over the roof on to her land. Mrs. Dlamini described it as
coming over the roof along the line of the roof.
defendant's roof in fact slopes from north to south. It is a fairly
large expanse of roof, and it appeared to me to be evident that
allowing for a measure of spillage on each side, most of the water
would run off towards the wall on the south side.
at the higher end the large open drain does curve away to the south,
until it is a good distance from the wall, the lower part of the
drain - for more than a third of its length, and perhaps as much as
half of it - is very close to the wall. The roof would not have to
extend out unduly - no more, I think that it does on the opposite
northern face - to reach beyond the drain. It also appears to me that
if it did so, then in very heavy rain, (as the women say happened,
and as Mr. Little acknowledged as a possibility) if the overhang was
far enough, the run-off from the roof along a significant portion of
its length might well be deposited clear of the drain, and might then
run down in the direction of the smaller open drain, beyond which lie
immediately the steps.
is, I think, a matter of common experience that flooding tends to
occur during or as a result of heavy rain. The evidence of the
witnesses in this case who saw the flooding was that the rain was
heavy and prolonged at that time.
Mr. Rodriguez' version is correct, then Mrs. Hlatshwayo and Mrs.
Dlamini have made up their account that the defendant's roof used to
extend, unguttered, beyond the large drain. At the risk, perhaps, of
being misunderstood as to my views on the difference between the
sexes, it does not strike me as the kind of scenario that a woman,
even a business woman, would readily think of. That particular
thought is no doubt something that I should entertain with a good
deal of caution. On the other hand, Mr. Rodriguez did not deny, but
on the contrary to a degree confirmed Mrs. Hlatshwayo's testimony
that she met with Mr. De Sousa after the flood to discuss repairs to
the defendant's roof.
there was a considerate gap between the time when Mrs. Hlatshwayo
give her evidence in chief in which she testified as to those
discussions, and her own cross-examination and the calling of the
other witnesses in the case, Mr. De Sousa was not called to give
evidence for the defendant, even though he was available to do so.
With respect, I do not think it was incumbent on the plaintiff to
Mr. Rodriguez' own account, the guttering and down pipes had not
always been in place. He himself put their installation on the other
side of the floods - but not too far removed from them. Mr. Bagshaw
did refer to them as appearing to be very old (or in those terms),
but on the general manager's version they were not old in any case.
Mr. Little acknowledged the possibility that they could have been
installed in 1990, notwithstanding their apparent corrosion.
do think that the failure of the defendant to call Mr. De Sousa does
weigh in the plaintiff's favour. Accepting that Mr. Rodriguez is a
person who does know when the guttering and down pipes were
installed, he was not by his own account someone who could assist in
this case by saying what Mr. De Sousa did or did not agree to. Mr.
Rodriguez is the general manager of the defendant. The plaintiff's
De Sousa acknowledged that the roof was the problem, and had it
repaired, has been known to the defendant for a considerable time. In
those circumstances, I do not find Mr. Rodriguez' apparent lack of
positive information about what Mr. De Sousa (his financial manager)
discussed very-convincing at all. I do not find it easy to
understand, either, why Mr. De Sousa was not called as a witness for
the defendant, unless the reason is that he would have found himself
unable to deny on oath Mrs. Hlatshwayo's version of events.
all of those reasons, I conclude that Mrs. Hlatshwayo and Mrs.
Dlamini were probably telling the truth when they testified that at
the time of the floods, the defendant's roof extended beyond the
large drain (at least for a significant length of it) without
guttering or down pipes -and that they were probably telling the
truth when they said that the water from the defendant's roof fell
beyond the large drain on the days in question.
was not in issue in this case that if the defendant had allowed its
roof to overhang the large drain in that way, without guttering and
drain pipes, then it was in breach of its duty of care to the
is nevertheless still a question as to whether the plaintiff has
proved that the flooding of the restaurant occurred in consequence of
the defendant's breach of that duty - in other words, whether the
discharge of water from the defendant's roof in fact was the cause of
the flooding. The plaintiff has the burden of proving this, in
itself, in order to succeed.
this respect, the defendant has put in issue whether or not the
greater volume of the water coming on to the plaintiff's premises
came from the former premises of Mbabane Engineering Company Limited,
which water caused the flooding.
has also put in issue whether or not the real cause of the flooding
was the plaintiff's own negligence in allowing the drainage channels
and the catchpits to become blocked by debris.
addition, it has put in issue whether in any event the plaintiff's
negligence in failing to keep the drains and catchpits free
contributed to the flooding.
plaintiff's evidence, from the two women who testified on its behalf,
was that the water coming off the defendant's roof passed down on to
the steps and from there into the restaurant, causing the floods. Mr.
Little acknowledged that this was a possibility. Not having seen the
layout of the restaurant, he was not in a position to deny that
flooding to the extent described by the women could have occurred in
that way. Mrs. Hlatshwayo also testified that since the installation
of the gutter and down pipes, the plaintiff's premises had not been
flooded. Mr. Bagshaw testified that there were very heavy rains in
1991 which had led him to take further photographs.
that evidence, subject to the issues raised by the defendant on this
question of causation, there is in my view prima facie evidence that
the floods in the restaurant were caused by water coming from the
is no evidence that raises a live issue that the flooding may have
been caused by water coming from the Mbabane Engineering Company
is no direct evidence that at the time of each of the floods, the
plaintiff had allowed the drains and the catchpits to become blocked.
Mrs. Hlatshwayo denied that it allowed this to happen.
defendant's plea that this caused or contributed to the flooding
depends on inferences to be drawn from observations
by Mr. Bagshaw, and to a degree by Mr. Little, on their visits to the
site after the floods; on their evidence that at times the catchpits,
and in some measure the drains, in fact had debris in them; on Mr.
Bagshaw's evidence, and from the photographs produced by him, that in
the case of the larger catchpit there was at times a considerable
amount of debris that caused water to gather in the catchpit above
the grid; and on Mr. Little's evidence that debris could affect the
ability of the catchpits to cope with the run-off.
inference that I am invited to draw is that if that were the case
after the floods, then it may well also have been so before each of
them - and that bearing in mind the onus of proof, the plaintiff has
not, having regard to these facts, shown that the flooding was
probably caused, or was probably caused only, by the water coming off
the defendant's roof.
evidence does in my view establish that at times significant
quantities of debris did accumulate in the catchpits. It does not
appear to me that any refuse that is shown to have gathered in the
open drain was of any real significance. Nevertheless, Mr. Hlatshwayo
(after being shown the photographs) did acknowledge that debris was
allowed to accumulate for more than one day. On the evidence, I
myself think it is probable that it sometimes accumulated for rather
longer than that. I am not satisfied that it has been shown that the
catchpits were probably cleaned out every second day at least.
I keep in mind the onus of proof, the evidence does not demonstrate
that debris was allowed to gather to the point where the catchpits
overflowed. The evidence that was led to show that debris did gather
in the drainage courses and catchpits does itself also show, or
indicate, that steps were taken to clear them periodically.
Hlatshwayo's evidence was that the courses and catchpits were from
time to time cleaned out.
the days in question, the flood water came from the defendant's roof.
Mrs. Dlamini did say that she was unable to tell, on the day about
which she gave evidence, whether some of the flood waters were coming
from the smaller catchpit, but she was also saying that the flooding
stemmed from the defendant's roof. The subsequent observations of Mr.
Bagshaw and Mr. Little do raise some doubts in my mind, but in the
end, in the context of this case, these are really matters of
further flooding has occurred since April of 1990, despite heavy rain
on at least one occasion. The plaintiff has in my view shown that the
water from the defendant' s roof probably caused the floods.
therefore find that the defendant did negligently cause the flooding
case was then postponed to 9.30 a.m. on 26th November 1993 for
judgment on damages, interest and costs).