Committee of State Road Authorities

Komitee van Staatspadowerhede

TRH 25: 1994

GUIDELINES FOR THE HYDRAULIC

DESIGN AND MAINTENANCE OF

RIVER CROSSINGS

VOLUME VII: LEGAL ASPECTS

TECHNICAL RECOMMENDATIONS FOR HIGHWAYS

TRH 25 : 1994

GUIDELINES FOR THE HYDRAULIC

DESIGN AND MAINTENANCE OF

RIVER CROSSINGS

VOLUME VII : LEGAL ASPECTS

SEPTEMBER 1994

ISBN 1-874844-37-2 SET ISBN 1-874844-44-5 VOL VII PRETORIA, SOUTH AFRICA 1994

PREFACE

At the rate at which new information is generated and made available ft is becoming

increasingly difficult for the practicing civil engineer to decide on the appropriate norms and

analytical methods to be used in designs. Although there will always be cases necessitating a

comprehensive independent literature study to ascertain the best suited norms and methods

to achieve a sound solution, it is recognised that they tend to be the exception rather than the

rule. The designer cannot be expected to undertake such detailed studies for each case as

this would become impractical. Consequently the need for practical guidelines.

The main aims of these guidelines are to make recommendations on methods of calculation,

design norms as well as legal and other issues which need to be taken into consideration in

the pursuit of providing safe, economical and viable river crossings. The intention is not to

stifle original thinking and new development, and thus designers are expected to deviate from

the general recommendations where optimum solutions clearly fall outside the general

applicable norms. The guidelines are furthermore intended to serve as a basis for governing

bodies to formulate their policies on design standards with due consideration of legal and

other risks.

These guidelines comprise seven volumes each dealing with a particular subject or related

subjects.

SYNOPSIS

During the 1970s and 1980s a number of major floods caused serious damage to the road

and rail infrastructure in southern Africa. These events prompted the re-evaluation of the

implications thereof to the owners and users of the facilities especially with regard to the

associated risks, liabilities and legal aspects.

This volume deals with the law as ft affects the parties involved in infrastructural development

and is a condensed exposition of the legal aspects governing the design of river structures. It

focuses in particular on the law of delict, legislation, acts of wrongfulness and negligence,

court judgments, and the professional liability of the employer and independents.

Whilst this document should not be considered as comprehensive and all-inclusive, it reviews

the functioning of the law and presents the basic principles for sound decision-making.

Keywords : Legal aspects, flood damage, structures design, negligence, professional liability.

i CONTENTS

Volume VII : LEGAL ASPECTS By

Prof. T J Scott

Page

Contents of companion volumes ....................................... ii

Terminology ....................................................... iv

1. INTRODUCTION 1-1

1.1 Cautionary notes 1 -1 1.2 Relevant legal areas 1-1

2. LEGISLATION 2-1

2.1 Introduction 2-1 2.2 Provincial Government Act 32 of 1961 2-1 2.3 Provincial Ordinances 2-2

2.3.1 Cape Province 2-2 2.3.2 Natal 2-3 2.3.3 Transvaal 2-5 2.3.4 Orange Free State 2-7 2.3.5 General observation on ordinances 2-7

2.4 National Roads Act 54 of 1971 2-8 2.5 Professional Engineers Act 81 of 1968 2-9 2.6 Conservation of Agriculture Resources Act 43 of 1983 2-9 2.7 Regional Services Councils Act 109 of 1985 2-11

3 LEGAL ASPECTS OF DESIGNING FOR A DEFINITE FLOOD 3-1

3.1 Wrongfulness 3-1 3.2 Negligence 3-4

4. COURT JUDGMENTS 4-1

5. PROFESSIONAL LIABILITY 5-1 5.1 Employers liability 5-1 5.2 Employers of independent contractors 5-2

ii

CONTENTS OF COMPANION VOLUMES

Volume I : HYDRAULICS, HYDROLOGY AND ECOLOGY

1. General considerations 2. Hydrologic estimates 3. Waterway hydraulics 4. Sediment transport and scour 5. Design of bridge waterway openings 6. Hydraulic forces on bridges 7. Special aspects 8. Ecological considerations 9. References

Volume II : STRUCTURAL ASPECTS, BRIDGE CONFIGURATIONS AND FOUNDATIONS

1. Structural problems, which have resulted from floods 2. Bridge configurations 3. Foundations investigations and design 4. Structural design 5. References 6. Appendices

Volume III: EMBANKMENT AND BANK PROTECTION

1. Introduction 2. Direct protection 3. Indirect protection 4. Rockfill embankments 5. References

Volume IV : PARAMETERS FOR THE DESIGN OF LOW-LEVEL STRUCTURES

1. Introduction 2. Geometric parameters 3. Low-level structure types 4. Foundation parameters 5. Hydrologic and hydraulic considerations 6. Structural design criteria 7. Structural details 8. Approach fills 9. Safety precautions 10. References

iii

Volume V : BRIDGE MANAGEMENT OF RIVER BRIDGES

1. Introduction 2. Bridge management 3. Development of a database for river bridges 4. Inspection of river bridges 5. Remedial actions 6. References 7. Appendices

Volume VI : RISK ANALYSIS OF RIVER CROSSING FAILURE

1. Introduction 2. Scope 3. Level I risk assessment 4. Level II risk assessment 5. Risk management 6. References 7. Appendices

iv

TERMINOLOGY

bonus paterfamilias reasonable man (person)

casuistic approach approach according to which a problem is solved with reference to the prior solution of a specific problem

contra bonus mores in breach of the legal convictions of the community

court a quo the court from which an appeal has been lodged

culpa fault (wide meaning) or negligence (strict meaning)

defendant party defending a civil action

delict civil wrong (a wrongful, culpable act causing harm)

de now afresh, anew

dicta pronouncements, remarks

diligens paterfamilias synonym for bonus paterfamilias

et al and others

et seq and following

ex abundant! cautela from abundant caution

imperitia culpae adnumeratur want of skill is tantamount to negligence

infra below

initial onus main burden of proof

inter alia among other things

ipso facto by the mere/very fact

ipso iure by the mere operation of law

locatio conductio operis letting and hiring of professional services

mutatis mutandis with the necessary changes

on all fours amply substantiated

onus burden (of proof)

op cit in the work quoted patrimonial loss pecuniary loss

v

per se on Its own

plaintiff party instituting a civil action

principled approach approach according to which a problem is solved with reference to the general principles governing the field In question (also termed "generalising approach")

prima facie on the face of it

supra above

ultra vires beyond the scope of authority vicarious liability civil (delictual) liability for the act of another

1-1

1. INTRODUCTION

1.1 Cautionary note

This volume does not purport to furnish an exhaustive and authoritative exposition on all the legal aspects governing the design of river structures. In itself it does not lay down the legal norms in assessing the actions of a reasonable professional engineer, whether such engineer be employed by the road authority or a consulting engineer appointed by the road authority, or even an Independent professional engineer not connected in any way with the road authority The legal field of professional liability for negligence in particular, is extremely wide and it would be an impossible task to provide clear, Indubitable guide-lines within the ambit of this single chapter.

Whilst all reasonable precautions have been taken to ensure the correctness of this exposition of the law, its status should not be regarded as higher than that of an ordinary legal textbook on the topics at hand. Neither the author, nor the publishers, nor the road authority or any of its employees or agents hereby makes any representation of whatsoever kind to the effect that this chapter provides a complete and correct exposition of ail relevant legal principles pertaining to the subjects touched upon. Accordingly the author, the publishers, as well as the road authority and its employees and agents hereby disclaim any liability for any and every loss, however caused, flowing from any reliance of any person concerned with the design or construction of river structures, on the contents of this volume.

1.2 Relevant legal areas

The legal areas which are relevant to the field of road and bridge construction are numerous. However, in view of the problems specifically giving rise to the present project, it is at the outset evident that the law of delict (also known as the law of civil wrongs) can be targeted as the most relevant field of law. By application of the principles of the law of delict one can namely assess the possible legal responsibility of the road authority for damage caused through or by the construction of bridges.

As regards the question of damage in general, the basic starting point in South African law is the rule that harm rests where it falls, or, phrased differently, everyone must bear the damage he suffers, himself (Neethling, Potgieter and Visser Delict 3). However, there are certain legally recognized grounds which can cause this burden of damage to shift to another, with the result that such other is obliged to bear the formers damage or, in other words, to make reparation for it. Without enlarging in every detail on this "shifting" which forms the basis of the vast field of law known as the "law of obligations", it may be pointed out that one of the grounds effecting the shift is the causing of damage to a person by means of a delict, The law of delict is a subdivision of the field of private law, viz. the law regarding the relationship between individual persons, whether the latter be natural persons or legal personae like companies, a provincial administration or even the State.

The specific aim of the law of delict is thus, in the first instance, to determine what a delict is and when an act or omission can be classified as such and, secondly, to

determine under which circumstances a person is obliged to compensate another for damage caused to such other (see generally Neethling, Potgieter and Visser Delict 3; Van der Walt Delict: Principles and Cases par 2; Van der Merwe and Olivier Onregmatige Daad 3 et seq).

A delict can briefly be defined as the positive act or omission of a person, which in a wrongful and culpable (intentional or negligent) way causes harm to another (Neethling, Potgieter and Visser Delict 4; Van der Merwe and Olivier Onregmatige Daad 1). In order to determine whether a party is delictually liable in any specific Instance, the following so-called "elements" are gleaned from the above-mentioned definition:

(a) an act or omission; (b) wrongfulness; (c) fault (either in the form of intent or negligence); (d) causation; and (e) damage.

Nobody can be held responsible for causing another's harm, if his conduct does not conform to the requirements of the present law pertaining to the 5 elements enumerated above. One can thus at the outset declare that any person or body performing any task in pursuance of statutory authority bestowed upon him/her or it, e.g. to construct roads or bridges, should heed the principles pertaining to the elements of delict, in order to avoid any act or omission falling within the ambit of any or all of the elements concerned, to avoid possible legal responsibility for damage suffered by a user of such road or structure.

The main source of law upon which the South African law of delict has developed during the last few decades and is still developing, is case law, viz. the decisions of the Supreme Court of South Africa. (This is to a large extent a truism as regards the entire field of (private) law: see for example the notorious statement by Proculus Redivivus (1965 SAU 17 at 24) that "a country's law can be found in the last thirty years of its law reports". Fortunately, for the detailed field of civil (delictual) liability flowing from damage caused by storm-water affecting the structure of a bridge, the highest court, the Appellate Division, has proclaimed its opinions in a long judgment in the case of Administrator, Natal v Stanley Motors Ltd (1960 1 SA 690 (A)). Whereas it is usually said, and quite correctly that our law of delict is generalizing in its approach (Neethling, Potgieter en Visser Delict 4), viz. that the general principles pertaining to the 5 elements of delict as a rule apply irrespective of which individual interests are impaired, and irrespective of the way in which the Impairment is brought about (see e.g. the large number of cases quoted in 3 infra), the existence of the judgment in Administrator, Natal v Stanley Motors Ltd alleviates the task of the lawyer confronted with the problem of damage caused by bridge wash-aways, harm induced by scouring, etcetera in that it forms a case or precedent: we may thus, to a greater extent than may usually be the case, follow this judgment as the pronouncement of the opinion of the highest court. Technically this greater attachment to a specific judgment (or judgments) gives rise to what is called a casuistic approach. Although this type of approach is usually criticized by academic lawyers who favour a principled approach to resolve any individual legal problem, practitioners namely hail a firm precedent as a timesaving device, which indicates existing principles pertaining to a specific factual situation in a precise way. As will be seen, especially In the event of endeavoring to ascertain

whether negligence has been established (see 3.2 and 4 infra) a precedent like that of the Stanley Motors case will often be relied upon.

A secondary source of law relevant to the instant matter is statutory law. As will be pointed out (specifically In 2 and 3.1 infra) certain laws of Parliament, as well as provincial ordinances and even government notices given under the hand of a Minister of State can alter existing rules or, simply stated, lay down the law de now in a specific field. These measures are important in that they create legal duties upon specific persons/bodies and thus determine who are to be sued in delict when certain damage Is caused and, secondly, in that they may form the basis for a ground of justification, known as "statutory authority", which may exempt a specific authority from liability to redress damage. In view of the vast body of statute law existing within the Republic (e.g. statutes of Parliament, provincial ordinances, government notices, municipal by-laws, and the like) only those sources which can be ascertained more readily by means of the standard editions like the South African statutes and provincial ordinances has been concentrated upon. These measures are probably Indicative of similar measures of inferior legislatives like municipalities or health committees, to name but two.

Flowing from the relevance of statutory law. specifically in the context of determining delictual liability, the , principles of the vast fold of Interpretation of Statutes are of major importance. However, this branch of law is for present purposes aptly condensed in a single judgment of the Appellate Division, viz. Johannesburg Municipality v African Realty Trust Ltd (1927 AD 163). (See especially 3.1 infra, for application of the principles formulated above).

The last aspect to receive attention will be professional liability for damage caused through floodwater, bridge construction and the like (see 5 infra). In a technical sense this involves mainly the law of delict.

To conclude these preliminary remarks, a brief bibliography of the most important South African textbooks is afforded in alphabetical order with the mode of citation to be subsequently used, supplied In brackets:

Boberg P Q R The Law of Delict vol. 1 (Aquilian Liability) (1984) Juta Cape Town: (Boberg)

Macintosh J C and Norman-Scoble C Negligence in Delict 5th ed (1970) Juta Cape Town: (Macintosh et al)

McKerron R G The Law of Delict 7th ed (1971) Juta Cape Town: (McKerron)

Neethling J, Potgieter J M and Visser P J Law of Delict (1990) Butterworths Durban: (Neethling et al)

Van der Merwe N J and Olivier P J J Die Onregmatige Daad in die Suid-Afrikaanse Reg 6th ed (1989) Van der Walt Pretoria: (Van der Merwe and Olivier)

Van der Walt J C Delict: Principles and Cases (1979) Butterworths Durban: (Van der Walt)

2-1 2. LEGISLATION

2.1 Introduction

In this section an overview will be presented of legislation authorizing the construction of roads, including structures crossing natural water courses (specifically with the emphasis on the provisions entrusting certain powers in this sphere to governmental bodies), as well as legislation pertaining to storm-water in a broader sense.

The relevant consolidated editions of sources containing these measures have been scrutinized in order to ascertain whether some or all of the applicable measures have been interpreted by the courts to afford greater clarity as to the contents thereof. Unfortunately it would seem that a .dearth of case-law authority exists in this field (with one or two negligible exceptions, barely meriting mention).

2.2 Provincial Government Act 32 of 1961

(This act was formerly the chapter dealing with the powers of provincial councils (sections 84 et seq) of the repealed Republic of South Africa Constitution Act 32 of 1961.)

Every province within the Republic has its own provincial council, which Is empowered to legislate on certain specified matters within its territorial limits. These matters are circumscribed by section 84(1) of Act 32 of 1961 (as well as certain other acts of Parliament like the Financial Relations Act 65 of 1976, which acts are not relevant to the instant matter). Section 84 has essentially not been amended by the new Provincial Government Act 69 of 1986 and the powers which are conferred upon provincial government have remained (see Act 69 of 1986 section 14(1) (a)).

The said section 84(1) reads as follows:

"Subject to the provisions of this Act, the Financial Relations Act (65 of 1976), and the assent of the State President as hereinafter provided, and except in so far as the provisions of Part IV of the Republic of South Africa Constitution Act, [110 of 1983] have under section 98(3) (a) of the last-mentioned Act been declared to apply to any ordinance or other law of the province, [not applicable, part IV deals with so-called "own-affairs" and "general affairs"] a provincial council may make ordnances in relation to matters coming within the following classes of subjects, namely - ...

(h) roads, outspans, ponds and bridges, other than bridges connecting two provinces."

The provisions to which this enabling measure is made subject, does not concern the present subject and can thus be ignored. The wording of this measure does not create any uncertainty and the scope and ambit of this section is dearly as it has been formulated in In re Pennington Health Committee (1980 4 SA 243 (N) 245B): "The

legislative powers of provincial councils are defined in section 84(1) of... Act 32 of 1961 with reference to a variety of classes of subject... By implication this includes the power to legislate with regard to matters incidental to each designated class of subjects" [like that mentioned in section 84(1)(h)]. In 2.3, infra, the specific sections of the applicable provincial ordinances sanctioned by section 84(1)(h) will be reproduced.

In terms of section 84 provincial councils could exercise their legislative functions by virtue of a comprehensive capacity as original lawmakers (see Middelburg Municipality v Gertzen 1914 AD 544 550). Thus, ordinances ranked equally with acts of Parliament or original legislation and our courts accordingly had no capacity to "test" the validity of ordinances merely because they seemed unreasonable, unwise, unpolitic or unjust (Gertzen case at 554; S v Le Grange 1962 3 SA 498 (A) 504-5). A court of law could annul an ordinance only if the provincial council had transgressed the formal bounds of its capacity to legislate (R v Has 1938 TPD 32; La Grange case at 505; Belinco (Pty) Ltd v Bellville Municipality 1970 4 SA 589 (A)). It would appear that no attempt has ever been made to bring an application to annul any ordinance pertaining to road construction on the above-mentioned ground.

The new Provincial Government Act 69 of 1986 has formally transferred the legislative powers previously vested In the provincial councils to the four provincial administrators. It is provided by section 14(2) (a) of this act that the administrator may by proclamation in the Official Gazette of his province amend, repeal or substitute any provision of an ordinance and regulate any matters mentioned in section 14(1). These so-called "provincial matters" as the ones circumscribed in section 84(1) of Act 32 of 1961. Thus it is now possible for an administrator of a province to legislate by regulation.

As all the ordinances applicable to roads/bridges have been promulgated prior to 1 July 1986 (date of commencement of new Provincial Government Act), it is evident that no uncertainty exists as to their status as ranking equally with acts of Parliament.

2.3 Provincial Ordinances

2.3.1 Cape Province

The Roads Ordinance 19 of 1976 contains the following relevant sections:

"Construction and maintenance of public and private roads and public paths.

7.(1) The construction and maintenance of every public road, other than a minor road, of which the Administrator is the road authority shall be undertaken by him.

(2) The construction and maintenance of every main road and every divisional road of which a council is the road authority shall, in so far as funds permit, be undertaken by such council.

(3) The construction and maintenance of every minor road and every public path may be undertaken by the road authority of such road or path; provided that a council which is the road authority of a minor road which is used by or on behalf of the State for the conveyance of pupils to and from school shall, in

so far as funds permit, undertake the construction and maintenance of such minor road.

(4) The Administrator may by written order, direct a road authority which is a council to undertake the construction and maintenance of any public road or public path (other than a minor road) of which it is the road authority according to such standards, in such position and for such width as he may specify in such order.

(5) A road authority which is a divisional council may, by agreement with and at the cost of the owner or occupier of immovable property situate within the rural area of the division concerned, construct and maintain a private road on such property in order to provide access from any dwelling on such property to the nearest public road.

Actions for damages in certain circumstances.

60. (1) No action shall He against a road authority or any employee, agent or contractor of a road authority for or in respect of any damage or injury sustained or alleged to have been sustained by any person -

(a) in using any part of a public road or public path other than the roadway of a public road;

(b) in using a public road or public path merely by reason of the fact that such road authority has contributed towards the costs of construction, repair, Improvement or maintenance of such road or path ...".

The Divisional Council Ordinance 18 of 1976 contains the following relevant provisions. (For phasing out of divisional councils, see 2.7 infra.)

140. (1) Subject to the provisions of section 141 and of any other law, a council may, within its rural area -

(a) ... (b) ... (c) ... (d) drain storm-water or discharge water from any divisional service works into

any natural watercourse, and (e) do any other thing necessary or desirable for or incidental, supplementary or

ancillary to any other matter contemplated by paragraphs (a) to (d).

(4) A council which acts in terms of subsection (1)(d) shall pay to any person suffering damage in consequence thereof compensation in an amount agreed upon by such person and such council or, In the absence of agreement, determined by the Administrator."

2.3.2 Natal

The following sections of the Roads Ordinance 10 of 1968 are relevant:

"Main Roads vested in the Administrator.

2. Subject to the provisions of the National Roads Act, 1971 (Act No. 54 of 1971), all main roads and all works, undertakings and other things forming part of or connected with or belonging to main roads, shall vest in the Administrator who shall have the control and management thereof, with authority subject to the provisions of this Ordinance, and the aforementioned Act to construct, reconstruct, repair and maintain main roads, or to deviate or close existing main roads, or perform or do such other acts, matters or things as he may deem necessary or expedient for any of the purposes aforesaid, or in the exercise of any power conferred upon him by this Ordinance.

Main roads are public roads. 3. Every main road is hereby declared to be a public road, which the public has the right

to use. Director in charge of main roads.

4. The main roads of the Province shall, subject to the directions and control of the Administrator, be under the charge of the Director assisted by such other officers as the Administrator may subject to the laws governing the public service of the Republic, from time to time appoint for that purpose.

Raising and lowering of main roads.

18. The Director may raise or lower the level of any main road for such purposes and to such extent as he may deem necessary and may carry out and perform all such works as may in his opinion be necessary for or incidental to such raising or lowering.

19. (1) No person shall -

(a) release water over, under or across a main road;

or

(b) by any means whatever raise the level of the water in any river, dam or watercourse so as to cause any interference with or endanger any main road or any bridge, culvert or drift or other thing forming part of or connected with or belonging to a main road without the prior written consent of the Administrator and then only subject to such conditions as he may prescribe.

(2) The Director may after consultation with the owner and any lessee or after expropriation or other acquisition of such property as may be necessary for the purpose -

(a) deviate any watercourse, stream or river if such deviation is necessary for the protection of a road or structure or for construction of a structure.

(b) divert storm-water from or under any main road on to private property, not being land occupied by buildings or other structures or other improvements, without liability for any damage caused by such diversion; provided that if it be found necessary to divert such water on to property under cultivation, the owner or lessee of such property shall be entitled to such compensation for any damage caused thereby as may be agreed upon, or failing agreement, as may be determined in the manner provided in section 15.

Reconstruction and maintenance of district roads.

38. Subject to monies being made available by the Provincial Council for the purpose, the Administrator may undertake the construction, reconstruction and maintenance of any district road or any section of any district road or the construction of any deviation of any district road.

Limitation of actions

73A. No action shall lie against the Administrator or the Administration, or against any person who has constructed a road vested in the Administrator or a road for the maintenance of which the Administrator is responsible, in respect of damage sustained by any person in the use of any part of such road other than the roadway"

2.3.3 Transvaal

The following sections of the Roads Ordinance 22 of 1957 are relevant:

"Disposal of storm-water. 81. (1) The Administrator may -

(a) divert storm-water from any public road into private property not being land occupied by buildings, orchards, gardens, cultivated lands or other improvements if in his opinion such water will not damage any Improvements, and he shall not be liable for any damage caused by such diversion;

(b) after consultation with the owner divert storm water from any public road into unimproved private property situate above land occupied by buildings, orchards, gardens, cultivated lands or other improvements and he shall not be liable for any damage caused by any such diversion: provided that no such diversion shall be made within 100 meters from the said improvements;

(c) in consultation with the owner divert such storm-water into unimproved private property situate within 100 meters above buildings, orchards, gardens, cultivated lands or other improvements, or into private property

being land occupied by buildings, orchards, gardens, cultivated lands or other improvements in such a manner and on such terms as may be agreed upon.

(2) Where an agreement cannot be reached with the owner of land to divert storm-water as contemplated in subsection (1)(c), the Administrator may -

(a) in accordance with the provisions of section 7, acquire such portion of the land concerned as he may deem necessary for that purpose; or

(b) by notice in the Provincial Gazette acquire a right in the land concerned so to divert storm water to a public stream or natural watercourse leading to a public stream.

(3) Where the Administrator acquires a right in terms of subsection (2)(b) -

(a) the Registrar of Deeds shall register such right on the title deeds of the land concerned;

(b) he shall pay to the owner such compensation as may be mutually agreed upon or, failing such agreement, as may be determined in accordance with section 14 of the Expropriation Act, 1975, in which case costs shall be calculated and awarded in accordance with section 15 of the said Act: provided that such compensation shall not exceed the amount which the land concerned, Including improvements thereon, would have realized if sold on the date of the notice contemplated in subsection (2)(b) in the open market by a willing seller to a willing buyer.

Cultivation of land after storm-water diverted.

83. If a land is cultivated after the date on which the Administrator commenced to divert storm-water thereon the owner may advise the Administrator of his intention to cultivate such land, and the Administrator may thereupon execute such drainage works as he deems reasonable to abate the damage caused to the owner by such discharge of storm-water and the owner shall have no further claim against the Administrator In respect thereof.

Disposal of storm-water in townships, etc.

84. (1) When a township, or agricultural holding under the Agricultural Holdings (Transvaal) Registration Act, No. 22 of 1919, or other division of land into proportions of less than 24 hectares, is situate or established adjacent to or over a public road, the township owner or person establishing the agricultural holdings or other division of land, as the case may be, shall receive and dispose of storm-water discharged from such public road into the area of such township, holding or division, and the Administrator shall not be liable for any damage whatsoever caused by the discharge of such storm-water: provided that the Administrator shall consult with such owner or

person on a drainage scheme submitted by such owner or person, and shall arrange for the discharge of such storm-water in conformity with such scheme as far as he deems it expedient to do so.

(2) Should the Administrator alter an existing drainage scheme in connection with a public road to meet the requirements of such township owner or person establishing agricultural holdings, the cost of such alterations executed by the Administrator as predetermined by him, snail be paid by the said owner or person as the case may be, to the Administrator in such manner as the Administrator may determine." The provisions of sections 5(2) (c) and 5(2A) should be read in conjunction with sections 81-4. They read as follows:

5(2) (c) Proviso: "A local authority shall, notwithstanding the foregoing provisions of this subsection, be responsible for the disposal of all storm-water from such public road or deviation thereof and for any expenditure incurred in connection therewith."

5(2A): 'The Administrator shall not be liable for any damage caused by or arising from the disposal of storm-water by the responsible local authority in terms of the proviso to subsection (2) or the omission by such local authority so to dispose of storm-water."

With regard to limitation of actions, section 96(1) is relevant:

"No action shall lie against the Administrator or an officer or employee ... or against any person who has constructed a public road in respect of any damage sustained by any person in the use of any portion of a public road (Including the shoulders) which is not a roadway."

The wording of this section has been strictly interpreted so as to afford the Administrator the greatest amount of indemnity (see Swart v Scottish Union & National Insurance Co Ltd 1971 1 SA 384 (W)).

2.3.4 Orange Free State

The following sections of the Roads Ordinance 4 of 1968 are relevant:

17. (3) the Director [of Roads for the Province or a person specially or generally authorized by him to act on his behalf - section 1] may divert storm-waters from a public road on to private land and, except where otherwise provided by this Ordinance, no compensation shall be payable in respect of damages caused by such diversion.

18. (1) Whenever as a result of the construction or maintenance of a public road or pont or the exercise of a power in terms of section 12(2), 15 or 17 any direct damage is caused to dwellings, buildings, orchards, gardens, plantations, crops, cultivated trees or lands under irrigation (not being land which is capable of irrigation but not actually under irrigation) the owner of the land concerned shall be entitled to compensation.

(3) The amount of the compensation payable in terms of this section shall be determined by agreement between the parties, or failing such agreement, by arbitration."

2.3.5 General observation on ordinances

It is important to note that if a person or authority should fail to discharge a duty imposed upon him by statute (which also includes, as has been pointed out under 2.2, provincial ordinances), he or it can incur liability to compensate anyone who has suffered damage in consequence of such omission. In terms of this rule a divisional council in the Cape Province which was liable to undertake the construction of roads and bridges and to keep the same in a state of good repair with the funds at its disposal, was held responsible for allowing a road to deteriorate into a state of disrepair, which situation gave rise to a road-user suffering damage (Victoria East Divisional Council v Pieterse 1926 EDL 38; Mckerron 276 et seq; cf further Pretorius v Divisional Council, Uniondale 1939 PH 0 65 (C); Cradock D C v Hume 1 EDC 104 (1 Buch AC 27); Cathcart D C v Hart 9 SC 80; McArthur v Clanwilliam Divisional Council 1914 CPD 925; Brain & Guthrie v Aliwal North D C 1912 EDL 319; Jordens v Cape D C 11 SC 158; Niehaus v Worcester D C 1932 CPD 53; Mossel Bay D C v Oosthuizen 1933 CPD 509). As the enabling Cape legislation with regard to road construction pertaining to divisional councils have been transferred to regional services councils within that provincial boundaries, these cases are still relevant. (See 2.7 under which the Regional Services Councils Act 109 of 1985 and its applicability in the Cape Province are treated of.)

Provincial councils have in turn, in terms of their local government ordinances, delegated certain of their powers in relation to roads to local authorities such as divisional councils (in previous dispensation - see infra for regional services councils), town councils, village management boards, etcetera. However, Parliament has enacted a number of statutes, of which the National Reads Act 54 c.' 1971 is probably the most important, of an umbrella nature connected with roads and road transport in relation to matters of national, rather than provincial or local importance. (See for a detailed description of parliamentary statutes Middleton "Roads and Road Transport" in Joubert LAWSA vol. 23 251-290).

No uniformity, in a formal or strict sense, exists in the measures contained in the provincial ordinances, pertaining to roads and storm-water damage, as well as incidental matters like limitations of actions, compensation to landowners for damage suffered as a result of< public works undertaken by the administrations, and the like. In a material or intrinsic sense, however, a great measure of similarity is encountered.

One should further be aware of the fact that the definition section of an ordinance may contain data, which are of cardinal importance when seeking for the applicability of ordinances to, for example, bridges. For example, the measures of the Transvaal

Ordinance 22 of 1957 pertaining to a road should all be read as also applying to a bridge. Section 1(xxi):

" road' means any road (other than a railroad) intended for vehicular or animal traffic and includes a bridge or drift traversed by a road and intended for use in connection therewith; and all land reserved or designated as a road under the provisions of some law or other..."

2.4 National Roads Act 54 of 1971

In terms of section 5(1 )(c) the South African Roads Board (succeeding the National Transport Commission - see the provisions of the South African Roads Board Act 74 of 1971; National Roads Amendment Act 100 of 1992) is expressly empowered to plan, design, construct or maintain any national road, toll road or interprovincial bridge.

A "national road" is defined as "a road or route declared a national road under section 4(1) (a) [by the Minister of Transport by means of notice in the Gazette] and includes a part of such road or route". Prior to the actual construction, a notice by the Minister issued in terms of section 4(1)(b) indicates the route along which the construction of a national road is contemplated.

A "toll road" is defined as "a national road or portion thereof which has been declared a roll road" under section 9(1) (a) and of which notice has been given in the Gazette in terms of section 9(2).

An "interprovincial bridge" means "a bridge across the boundary between adjoining provinces".

The publication of a proclamation in terms of section 4(1) (a) or (b) has far-reaching effects and confers considerable powers on the South African Roads Board, not only in respect of the land involved and adjacent land, but also in respect to any land specifically mentioned in the relevant proclamation.

In section 1 "road" is defined as "a public road" and includes "anything ... forming part of, or connected with, or belonging to the road " (which clearly includes structures like bridges).

Specifically with regard to the disposal of storm-water on national roads section 18(1)-(3) is relevant:

"18. (1) The Board may divert storm-water from or under a national road onto any land but shall, save as provided in subsection (3), pay compensation for damage caused by the diversion of such storm-water.

(2) The provisions of section 7(4) (b) [which prescribe that any proceedings against the Board must be instituted within six months after the cause of action has arisen]

shall mutatis mutandis apply in relation to the compensation contemplated in subsection (1) of this section.

(3) Where a township is established on land adjoining a national road, the person establishing the township shall receive and dispose of storm-water discharged or diverted from the national road, and the Board shall not be liable for damage caused in the township by such storm-water."

It is of importance to note that, in terms of section 6(1) and section 6(2) (a), the South African Roads Board is empowered to delegate to a member or officer of the Board or the Administrator of a province to be exercised by the Administrator concerned in that province or in respect of a particular national road or other matter in that province. Furthermore, in terms of section 6(2A)(a) the board may delegate any power regarding national roads conferred on it by this act to a local authority, to be exercised by that local authority in connection with a national road within a township under its control.

Apart from the above-mentioned powers of delegation, section 6(3) (a) expressly empowers the board to have the construction of roads and toll roads or an investigation, survey, design, planning or other work which it Is empowered to do on or in connection with roads, toll roads or routes done by any other person on such terms and conditions as may be determined by agreement.

It is further to be inferred from the proposition of Middleton LAWSA 23 par 262, made with regard to the now defunct National Transport Commission (replaced by the South African Roads Board), that all powers which the Board possesses in relation to the construction of national and other roads may also be exercised in relation to the maintenance of such roads.

2.5 Professional Engineers Act 81 of 1968

Although it has been suggested that reference be made to this statute, it is clear that its provisions are not relevant to the determination of civil liability of professional engineers for deflects committed by them in the course of their professional activities. It regulates the engineering profession in an administrative way by recognizing the powers and capacities of a professional council and, inter alia, laying down guidelines as to unprofessional or improper conduct. The long title of the act reads: To provide for the establishment of a South African Council for Professional Engineers, for the registration of engineers and engineers in training, and for other incidental matters." With regard to improper conduct and the power of the Council to enquire into cases of improper conduct, see sections 22(e)-(f) and 23).

2.6 Conservation of Agricultural Resources Act 43 of 1983

This Statute repeals and replaces the entire Soil Conservation Act 76 of 1969, with the exception of part IV (sections 12-15) of the former (dealing with fire protection commimees, fire protection areas and schemes).

As is evident from the long title of the act, it has been promulgated to provide for control over the utilization of the natural agricultural resources of the Republic in order to promote the conservation of the soil, the water sources and the vegetation and the combating of weeds and invader plants; and for matters connected therewith. (See also section 3 for further detailed objects of the Act.)

In terms of section 2(1) its provisions do not apply to urban land (section 2(1)(a)), trust land owned by the South African Development Trust (section 2(1)(b)), or mountain catchments areas (section 2(1)(c)). Section 6(1) affords wide powers to the Minister of Agriculture to prescribe control measures which shall be complied with by land users. These measures may relate to, inter alia, the prevention or control of water logging or salivation of land (section 6(1 )(d)), the utilization and protection of vleis, marshes, water sponges, watercourses and water sources (section 6(1 )(e)) and the regulating of the flow pattern of run-off water (section 6(1)(f)). In terms of section 6(3)(a) such ministerial control measure may contain a prohibition or an obligation with regard to any of, inter alia, the above-mentioned matters. Section 6(4) lays down ex abundant! cautela that different control measures may be prescribed in respect of different classes of land users or different areas or in such other respects as the Minister of Agriculture may determine.

The legislature has thus given extremely wide powers to "legislate" by means of regulation to the Minister, and has couched his powers to regulate in such a way that it is extremely improbable that such control measures, passed in the normal way by means of proclamation of regulation, will ever be held to be ultra vires. ,

The general power of the Minister to make regulations, inter alia to impose control measures, is afforded by section 29. Regard should, in the planning and construction process of any road or bridge, thus always be had to any possible regulations existing by virtue of section 29: see, for instance, the regulations contained in Reg Gazette No 3707 (Govt. Notice No R 1048 of 25/5/84) and Reg Gazette 3904 (GN 2687 of 6/12/85). A most relevant regulation in terms of GN 1048 of 25/5/84 would seem to be regulation 8(4)-(5) which reads as follows; "No land user shall effect an obstruction that will disturb the natural flow pattern of run-off water on his farm unit or permit the creation of such obstruction unless the provision for the collection, passing through and flowing-away of run-off water through, around or along that obstruction is sufficient to ensure that it will not be a cause for excessive soil loss due to erosion through the action of water or the deterioration of the natural agricultural resources.

(5) No land user shall remove or alter an obstruction in the natural flow pattern of run-off water on his farm unit if such removal or alteration will result in excessive soil loss due to erosion through the action of water or the deterioration of the natural agricultural resources."

Regard should in addition be had to the fact that the so-called "executive officer" (viz. an officer of the Department of Agriculture as described in section 4(1)) may in terms of section 7(1) by means of a direction order a land user to comply with a particular control measure which is binding on him or with regard to the land specified in such direction, or if it is in such officers opinion essential in order to achieve the objects of

the Act, to perform or not to perform any other specified act on or with regard to such land. Anyone thus involved in any construction scheme affecting the surface of the land or interfering with the natural flow of water, should pay attention as to whether any such directive has been issued with regard to the land on which the construction works are situated, and even with regard to adjacent land which may be affected by such works: The executive officer may in terms of section 7(3) (a) publish any such direction in the Gazette or even, in terms of section 7(3) (b), have it contained in a written notice served on the land owner concerned. As section 7(3) (b) thus in effect sanctions a private communication between the officer and the land owner concerned, it would seem as if direct communication with the Department of Agriculture on this matter will be advisable. (No directions applicable for our purposes have as yet been found to be published in the Gazette in terms of section 7(3) (a).)

In conclusion it may be of interest to note that a Conservation Advisory Board Is established In terms of section 17(1) with powers to advise the Minister on matters pertaining to the Act; the Act furthermore creates vast powers to ensure its effectiveness.

2.7 Regional Services Councils Act 109 of 1985

The aim of this statute is: 'To provide for the joint exercise and carrying out of powers and duties in relation to certain functions in certain areas by local authorities within such areas; and to that end to provide for the delimitation of regions; the establishment of regional services councils; and the constitution, functioning, functions, powers, duties, assets, rights, employees and financing of such councils; and to provide for matters connected therewith."

The establishment of regional services councils is regulated by section 3(1) (a) which empowers the Administrator of a province to establish a regional services council, by notice in the Official Gazette and with effect from a date specified in such notice, for any region and to announce from time to time which local bodies are represented thereon.

The functions of such council are circumscribed in section 3(2)(b) as follows: 'A council shall be a juristic person and shall in respect of its region be charged with such functions or any part of a function mentioned in Schedule 2 as may from time to time, [subject to certain provisions not relevant in this context] by notice in the Official Gazette be identified by the Administrator as a regional function and entrusted to that council." Schedule 2 section 5 specifies "Roads and storm-water drainage."

Specifically with regard to the Cape Province it is important to note that the Minister of Planning and Provincial Affairs abolished regional and divisional councils and regulated certain measures pertaining thereto, specifically with regard to roads. In terms of GN 2882 (of 29/12/1989) the Administrator is designated as the public

authority regarding roads (including primary, divisional and secondary roads). In terms of regulation 4 the regional services councils are designated as the public authority regarding private roads, irrigation roads and streets in a rural area as defined in section 2 of the Divisional Councils Ordinance, 1976, excluding any portion of such area declared to be a local area in terms of section 8(1) (9) of the said Ordinance or which is situated in the area under section 2 of the Local Government Ordinance, 1963.

It is suggested that, in the Cape Province, the applicable regional services councils stepped into the shoes of the abolished divisional councils in so far as the matters of roads and storm-water drainage are concerned (see 2.3.1 supra where the applicable rules concerning divisional councils are treated of).

For relevant data on government notices abolishing divisional councils, see Godwin Juta's Index to the SA Government and Provincial Gazettes (1990) 354 et seq.

3. LEGAL ASPECTS OF DESIGNING FOR A DEFINITE FLOOD

At the outset it is important to heed the fact, as communicated, that economic considerations prohibit the design of river structures to make provision for probable maximum floods. The standard practice is to design culverts and bridges for estimated peak floods with recurrence periods varying from 10 to 100 years depending on the circumstances. The flood magnitude and level for the frequency selected are calculated and the structure opening length and height selected for acceptable upstream afflux height and stream velocity conditions. In designing a structure, the overriding object should logically be to ensure a safe structure. However, "safety" is in its essence a relative concept: were funds always to be available in unlimited quantities on the one hand, so-called "absolute safety" could be achieved (e.g. all bridges could be designed and constructed to cater for a 500 year return period flood); on the other hand, with a minimum of resources available, the standard of safety would by necessity be extremely low, which fact will be excusable. From the point of view of a third party - the user of a road or bridge - the safety aspect entails the possible civil (delictual) responsibility of a road authority entrusted with the specific structure. Thus the general principle of the law of delict, as set out under 1 supra, comes into play. Especially the delictual elements of wrongfulness and negligence have a bearing in the present context.

3.1 Wrongfulness

Not every act or omission of a person who causes harm to another can be regarded as wrongful, and thus prima facie actionable. The determination of wrongfulness essentially entails a dual investigation: First, it has to be determined whether a factual, harmful result has occurred, and, secondly, legal norms must be applied to determine whether such harmful result

occurred in a legally reprehensible or unreasonable manner (see Neethling et al 29 et seq; Van der Merwe and Olivier 56 et seq). Thus, the causing of factual damage alone is not to be regarded as unlawful - a fact frequently overlooked by the layman. An element of unreasonableness has to come into play It is frequently said that the causing of harm is not to be regarded as wrongful if such causing does not entail an act or omission contra bonos mores, viz. contrary to the legal convictions of the community (Neethling et al 31 et seq). The way in which modern-day legal practice approaches the question of wrongfulness, differs in practice from this approach. It is not asked at the outset whether an act or an omission causing harm is unreasonable (contra bonos mores), but in a sense accepted that the causing of harm is ipso facto unreasonable, except insofar as such causing of harm can be judged as justifiable. Thus a number of so-called "grounds of justification" have been developed: should conduct then fall within the ambit of one of the recognised grounds of justification, the harm caused by it will not be regarded as wrongful, and thus not actionable (see e.g. Neethling et al 61 et seq; Van der Merwe and Olivier 70 et seq; Van der Walt pars 26 et seq).

The ground of justification on which an authority entrusted with a specific task by means of legislation will usually rely in the event of its activities having caused harm, is so-called "statutory authority" (for the principles of this ground of justification specifically, see Neethling et al 91-2; Van der Merwe and Olivier 104-6; Van der Walt par 30).

In terms of the law of delict, a person or body does not act wrongfully if he performs an act which would otherwise have been wrongful, while exercising a statutory authority (East London Western Districts Farmers' Association v Minister of Education and Development Aid 1989 2 SA 63 (A) 70 et seq; Union Government (Minister of Railways) v Sykes 1913 AD 156 at 169; Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163). By authorizing an Infringement of interests, a statute in effect limits the rights of prejudiced persons. In dealing with this ground of justification, the precise wording of every applicable statute should be scrutinized meticulously in order to determine whether the act or omission complained of falls within the four corners of the enabling statute, or whether the bounds of such statutory authority have been exceeded (cf African Realty Trust case 172; Sambo v Milns 1973 4 SA 312 (T) 320; see same applicable statutory measures treated of in 2 supra).

The leading case, in which the operation of statutory authority as ground of justification is crisply set out, is the African Realty Trust case. The facts of this case afford a typical example of a situation in which a public body entrusted with the construction of certain works may find itself (the resume of Boberg at 776 is quoted here): 'Alleging that certain streets and drains constructed by the Johannesburg Municipality in the upper townships of Houghton and Berea had greatly increased the volume and velocity of the water discharged to the lower township of Killarney, which it owned, the plaintiff company claimed damages and an interdict against the Municipality The defense raised was statutory authority It was rejected in the court a quo, which held that the statute in question (Local Government Ordinance 9 of 1912 CT)) had not authorized interference with the common law rights of the company, and granted an interdict (though no damages).

On appeal, the Appellate Division discussed the proper approach to the defense of statutory authority The first question was whether the statute relied upon authorized an interference with private rights. This, the court found, the present statute did for, though the powers conferred by it were permissive and general, it was impossible to exercise them without some interference with the rights of others. The next question was whether the power had been exercised without negligence, which in the present context meant that all reasonably practicable measures to avoid or minimize the damage caused by exercising the powers had been taken. The onus of establishing such negligence rested upon the plaintiff. Finding that the only remedial measure open to the municipality in respect of its Houghton works had been to construct a series of canals costing 1,25 million pounds, the court held that the failure to construct such canals did not constitute negligence. The interdict, insofar as it related to the discharge of water from this area, should therefore have been refused. The discharge from the Berea area, however, stood on a different footing. Since the municipality had diverted the natural flow of this water ... for engineering reasons and it would have been perfectly feasible to retain the natural flow, the municipality had not been protected by the statute when it had discharged this water upon Killarney. Accordingly the interdict had been rightly granted insofar as it related to the Berea water."

The judgment of Innes CJ can, for practical purposes, be summarized as follows (see Neethling et al 90-2):

"(a) The question whether the statute authorizes infringement of the interest concerned, depends on the intention of the legislature. The intention of the legislature is determined In accordance with the principles regulating the interpretation of statutes. The intention of the legislature appears from the act itself. To determine whether the legislature intended to authorize an Infringement of interests, the courts apply especially the following guidelines: (i) If the statute is directory [contains the verb shall'] it is clear that an

infringement of private interests is authorized. The injured person is consequently not entitled to compensation unless the statute specifically provides for compensation.

(ii) If the statute is not directory but permissive (contains the verb 'may'), and if the statute makes no provision for the payment of damages, then there is a presumption that the Infringement is not authorized. (If provision is in fact made for compensation, it is generally accepted that the Injured party is only entitled to that compensation specifically mentioned In the act.)

(iii) The presumption referred to in (ii) falls away, however, if the authority is entrusted to a public body and for the general interest.

(iv) If the authorized act is circumscribed and localized (for example building a dam in a certain place or constructing a railway line between two specific points), there is a presumption that the infringement is authorized.

(v) If the authorization is permissive and general, not localised and does not necessarily entail an infringement of private Interests, the only possible inference is that the legislature did not Intend that private interests should be infringed.

(b) To determine whether the authorized act exceeds the bounds of the authority, the following considerations are taken into account:

(i) It must have been impossible for the defendant to exercise the powers without infringing the plaintiffs interest. (The onus of proof rests on the defendant.)

(ii) It must have been impossible to prevent or minimise the damage by taking reasonably practicable precautions or by using another feasible method of construction. (Here the onus of proof rests on the plaintiff.) In determining whether such alternative measures are reasonably feasible, particular attention Is paid to the relationship between the costs involved and the effectiveness of the measures. In this regard it is sometimes said that the defendant is liable if he exercises the powers 'negligently', and in consequence thereof the plaintiff suffers damage. However, this Is an incorrect formulation of the test. The question here is not whether the defendant acted negligently. but whether he has exceeded his authority by unreasonable conduct and therefore acted wrongfully."

The judgment in the African Realty Trust case follows a case like New Herlot GM Co v Union Government (1916 AD 415) and lays down the law with certainty: see, e.g., Reddy v Durban Corporation (1939 AD 293); Bloemfontein Town Council v Richter (1938 AD 195 at 209); Germiston City Council v Chubb & Sons Lock and Safe Co (1957 1 SA 312 (A)); see also Macintosh et al 227-8). From the above-mentioned one can conclude that if a statutory body is empowered by legislation to perform the work of building roads, bridges, canals, etcetera and in the process to interfere with the natural drainage of the land, the onus is first on such body to satisfy the court, that the legislature contemplated an interference with private rights. If that onus has been discharged, the onus lies upon an aggrieved party of proving that the statutory body could, by adopting reasonably practicable precautions, have avoided, for example, a great concentration in volume and velocity of storm-water or its erosive effect. In Germiston City Council v Chubb & Sons Lock and Safe Co 1957 1 SA 312 (A) the Appellate Division further lays down that, in the case of flooding by road construction operations by a municipality or local authority (and certainly, by analogy, to any authority entrusted with similar powers) in the exercise of statutory powers, the discharge of the initial onus is in effect automatic.

To determine which measures are reasonably practicable to avoid injury to road-users, etcetera, regard should be had to the total requirements and resources of the relevant authority, and not merely to the means of providing protection to an individual landowner. The position of any one plaintiff must thus be equated to the requirements of the whole area and the resources available to all of them (see generally Chubb & Sons case supra).

3.2 Negligence

Should the road authority not succeed in its defense of statutory authority it does not Ipso lure imply delictual liability on its part. In particular, in the present context, the onus is on the plaintiff to aver and prove negligence on the part of the defendant. The law relating to negligence in the modern law of delict is constituted by a vast number of reported judgments. In essence these judgments relate to the determination of negligence in any given case. Fortunately the Appellate Division has treated the concept of negligence consistently since its landmark decision in Kruger v Coetzee 1966 2 SA 428 (A), in which negligence is defined as follows at 430:

"For the purposes of liability culpa [viz. negligence] arises if -

(a) a diligens paterfamilias in the position of the defendant-

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

This has been constantly stated by this Court for some fifty years. Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable must always depend on the particular circumstances of each case. No hard and fast basis can be laid down."

The determination of negligence in any given case cannot be divorced from the surrounding facts. (See in particular the references to English law in Administrator, Natal v Stanley Motors Ltd 1960 1 SA 699 (A) at 700H-701A.) Thus, the reason able foresee ability and preventability of harm in any given situation involves the reaction of the so-called "reasonable man" (bonus or diligens paterfamilias), which is no more than saying that the law expects anyone to act reasonably with regard to others, having regard to the circumstances under which he operates. The characteristics of this reasonable man represent an average of the aggregate of qualities of the individual members of a community The reasonable "man", for this reason, is not necessarily male: see the words of Innes CJ in Cape Town Municipality v Paine 1923 AD 207 216: "I use the term reasonable man to denote the diligens paterfamilias of Roman law -the average prudent person." Boberg 280 lucidly states: "Judicial descriptions of the reasonable man vary, but their common denominator is his lack of any exceptional qualities." Thus "... the race, or the idiosyncrasies, or the superstitions, or the intelligence of the person ... do not enter Into the question" (R v Mbombela 1933 AD 269 273-4). We do not expect of this "notional epitome of reasonable prudence" (Peri-Urban Areas Health Board v Munarin 1965 3 SA 367 (A) 373F) to display "any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver. In short, a diligens paterfamilias treads life's pathway with moderation and prudent common sense" (S v Burger 1975 4 SA 877 (A) 879D). As will be pointed out below (see p27 et seq) an expert engaging in a profession which

demands special knowledge and skill, should act In accordance with what is expected of a reasonable expert, viz. the reasonable man trained and qualified in his particular field. The law thus expects a reasonable qualified person (expert) to display the amount of care and insight of an average expert in the same field. (For application of the reasonable expert test in regard to lawyers, see the recent work of Midgley, Lawyers' Professional Liability (1992) 124-6.) (This so-called "subjective" reasonableness test is more lenient than the objective reasonableness test for wrongfulness, in that it takes cognizance of the subjective circumstances in which a party finds itself: see e.g. Neethling et al 113 et seq). Harm caused unlawfully by any person can thus only be redressed if such harm was reasonably (a) foreseeable; and (b) preventable. (a) With regard to foreseeability, it has been laid down In the leading case of Administrator, Natal v Stanley Motors Ltd (1960 1 SA 699 (A)) that, with regard to wash-aways, anyone who designs and constructs a bridge and its approaches is under a duty to members of the public to do so in such a manner that it will be capable of resisting all the violence of the weather which may be expected to occur - although perhaps rarely - in the locality in question, and where a bridge is e.g. constructed near the mouth of a river, the forces of nature such as the winds and the tides and their effect on the river and the action of flood-water on the river-bed and banks must be taken into consideration by the reasonably careful man. In the Stanley Motors case the Administrator was held liable because of a failure to foresee a damming up of the river and consequent scouring away of the embankment, which resulted in a motor accident (for details see 4 infra). In the South African law the so-called concrete (or relative) approach to the test of foreseeability Is normally adopted (Nestling et al 119 et seq), in terms of which it is a prerequisite for the existence of negligence that a specific consequence which ensues must be reasonably foreseeable. This is formulated in the case of Ablort - Morgan v Whyte Bank Farms (Pty) Ltd (1988 3 SA 531 (E)) as follows: "In applying the law to the facts it must be borne in mind that the test is not whether, in the abstract, danger should have been foreseen. The facts peculiar to the occurrence under consideration must be established and in the light thereof one must determine whether the defendant ought reasonably to have foreseen the occurrence itself." (See also Boberg 276-7; Van der Merwe and Olivier 143.) Regarding the application of the test for foreseeability, Van der Walt (par 43) aptly states: "It is impossible to formulate exact legal criteria for the determination of the reasonable foreseeability of harm. There are, however, certain broad and flexible guidelines, which can be followed to determine the foreseeability of harm." These guidelines or variable factors are formulated crisply in Lomagundi Sheetmetal and Engineering (Pty) Ltd v Basson (1973 4 SA 523 (HAD) 524-5 as follows:

The sort of circumstances, however, which the Courts often look to in cases such as this in deciding what degree of foreseeability must be proved by the plaintiff before a defendant can be held responsible for the resultant damage are these: (1) how real is the risk of the harm eventuating? (2) if the harm does eventuate, what is the extent of the damage likely to be; and (3) what are the costs and difficulties involved In guarding against the risk?" Because the question of negligence is so closely connected with the facts of any given case, judicial precedent does not In reality prove of much worth. This fact Is stressed in the judgment of Stolzenberg v Lurie (1959 2 SA 67 (W) 74) as follows: "So much In negligence cases depends upon the particular circumstances that references to decided cases unless they are on all fours to do not assist overmuch." It is important to realize that in order to succeed in his action, a plaintiff must prove negligence on the defendants part. The ordinary burden of proof in civil cases entails that he who asserts a certain state of affairs, should bring proof to establish such state of affairs on a balance of probabilities. Facts should thus be furnished in order to arrive at a verdict of negligence: in the event of establishing negligence in matters pertaining to road or bridge construction, common sense dictates that the expert evidence of civil engineers will be of the utmost importance. (A fine example of the way in which such evidence Is weighed, is found In the Stanley Motors case at 704 et seq.) In conjunction with the last-mentioned statement, reference should be made to the maxim "imperitia culpae adnumeratur". A person who engages In a profession, trade, calling or any other activity which demands special knowledge and skill (like a civil engineer) must not only exercise reasonable care but must measure up to the standard of competence of a reasonable man professing such knowledge and skill (see in particular Van der Walt par 41; Neethling et al 117-118; Scott "Die Reel Imperitia Culpae Adnumeratur as Grondslag vir die Nalatigheidstoets vir Deskundiges in die Deliktereg" LC Steyn Gedenkbundel 24 et seq). (b) With regard to preventability of harm, ft should be reiterated that no person will be found negligent, in spite of the fact that the harm he has caused has been reasonably foreseeable, if the law does not require the reasonable man to take steps to prevent such harm from materializing. This idea is conveyed very clearly in the leading Appellate Division judgment of Herschel v Mrupe (1954 3 SA 464 (A) at 477; "No doubt there are many cases where once harm is foreseen it must be obvious to the reasonable man that he ought to take appropriate avoiding action. But the circumstances may be such that the reasonable man would foresee the possibility of harm but would nevertheless consider that the slightness of the chance that the risk would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no precautionary action on his part. Apart from the cost or difficulty of taking precautions, which may be a factor to be considered by the reasonable man, there are two variables, the seriousness of the harm and the chances of its happening. If the harm would probably be serious if it happened the reasonable man would guard against it unless the chances of its happening were very slight. If, OR the other hand, the harm, if it happened would probably be trivial the reasonable man

might not guard against it even if the chances of its happening were fair or substantial." This dictum forms the basis of the present-day recognition of four factors, which determine the question whether a reasonable man (or expert in the case of the imperitia -rule applying) would take steps to guard against an occurrence (harm), which is reasonably foreseeable:

(i) The nature and extent of the risk created by the wrongdoers conduct. The fact that the possibility of a certain risk materializing is very slight, or that the foreseen harm is trivial, may have the result that the reasonable man would not have taken steps to prevent such harm. (See also Wasserman v Union Government 1934 AD 228.)

(ii) The seriousness of the damage if the risk materializes. Thus, where there is only the slightest possibility that damage may occur, the reasonable man will nevertheless take precautionary measures if such harm were to be grave and extensive (Lomagundi Sheet-metal and Engineering (Ply) Ltd v Basson (1973 4 SA 523 (PAD)).

(iii) The relevant importance and object of the wrongdoers conduct. It may be that the interest or purpose served by the conduct in question is of such a nature that it is more important itself than the risk of harm which it involves - in such a case the reasonable man would not have taken steps to prevent the harm (S v Makwanazi 1967 2 SA 593 (N)).

(iv) The cost and difficulty of taking preventive measures. Where the costs and difficulty of taking such measures are greater than the gravity of the risk involved, the law does not expect the reasonable man to take these steps to minimize or reduce the risk (Gordon v Da Mata 1969 3 SA 285 (A); City of Salisbury v King 1970 2 SA 528 (HAD); Botes v Van Deventer 1966 3 SA 182 (A)).

Specifically as regards bridges, a very early example of the application of the reasonable man test for preventability of harm is afforded by the following judgments: In Jodens v Cape Divisional Council (11 SC 158) the plaintiffs cart, in endeavoring to pass a wagon on a single-lane bridge, went through the balustrade and off the bridge. The court held that the road authority was not liable for any damages, as the bridge was sufficient for ordinary strains. In Potgieter v Albert Divisional Council (1923 EDL 485) the court held (op cit): "There is no obligation to make a bridge of the very highest class, but one which, regard being had to the circumstances of the district and the funds of the council, would be safe for the ordinary traffic and the usual incidents of traffic."

In conclusion on this aspect, two further quotations may be furnished on the specific duties resting upon road authorities, embarking upon the construction of bridges, which quotations are generally in accordance with the spirit of the general exposition afforded above:

In New Heriot G M Co Ltd v Union Government (1916 AD 415 at 438): "In a country where rainfalls of great volume and severe intensity are common, and where meteorological data are scanty, I think that those upon whom a duty in favour of others is cast to deal with flood-water should be expected to provide a considerable margin of safety" (It should be added that with the additional meteorological data compiled since 1916, one can expect the approach to be less strict in present times.) In the Stanley Motors case at 699F-G the following dicta of the Privy Council judgment of Lord Chelmsfond in Great Western Railway Co of Canada v Braid ((PC) 8 LJ (NS) 31) are approved of: "In the construction of works of a permanent character, such as a railway, the amount of precaution which ought to be taken to guard against any external violence to which it may be exposed cannot be the subject of any precise rule, but necessarily vary according to the varying local circumstances of each case ... Their Lordships, without attempting to lay down any general rule upon this subject which would probably be found to be impracticable, think it sufficient, for the purpose of their judgment in these cases, to say that the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur." After pointing out the adherence to this line of reasoning in several earlier cases (Jamesorrs Minors v CSAR 1908 TS 575 at 596 and 606; Tilbrook v Port Elizabeth Town Council 4 Such AC 37 at 54; New Heriot case at 455 and 461), Ogilvie-Thompson JA concludes at 700A: 'The duty of the engineers constructing the bridge was, therefore, to construct it In such a manner as to be capable of resisting all the violence of weather which in the climate of the South Coast of Natal might be expected, though perhaps rarely, to occur." (On face value this may seem to point to a very heavy duty to take precautionary steps; however, the facts of the Stanley Motors case are to the effect that the stormy weather In question was within the bounds of which could be expected and should thus be guarded against).

4. COURT JUDGMENTS

It has been requested that specific court judgments be produced and scrutinized in order to lay down guidelines as to the liability or not of a road authority in the hypothetical case of a bridge over a major river having been designed for a flood for once In 100 years frequency, experiencing a flood of an estimated frequency of once in 500 years some time after construction. A passing motorist is washed off the bridge or crashes into the cavity caused by structural failure with resultant loss of life In the following cases:

4.1 The bridge is overtopped by floodwaters 4.2 The bridge approaches are washed away due to Inadequate protection leaving

cavities behind the bridge abutments. 4.3 Part of the bridge collapses due to scour damage to the foundations, the depth of

scour being deeper than anticipated In the design.

4.4 Part of the bridge collapses due to a pier failure or deck spans washing away as a result of an underestimation of the flood-forces acting on the structure in the case of a large accumulation of debris against the bridge.

The request is thus for a casuistic exposition to meet each of the situations envisaged. No precedent can be found which is "on all fours" and thus no single existing similar case "assists overmuch" (to employ the phraseology of Stolzenberg v Lurie 1959 2 SA 67 (W) at 74 - quoted supra under 3.2. (a). It is suggested, in the first instance, that the general delictual principles of wrongfulness and negligence furnished in 3 supra is of general application. The facts of specific decided cases, together with their court judgments, in a sense represents no more than an application of the general principles. However, in view of the system of precedent prevalent in our courts, these "applications of general principle" may well prove to have a strong convincing value in the process of deciding analogous sets of facts. As the Appellate Division has decided on analogous facts in the judgment of Stanley Motors, the facts of that case will briefly be reproduced: In this case one of the plaintiffs was driving a motorcar along the South Coast national road in a southerly direction towards Port Sheptone intending to drive over the Ndombe River bridge. Rain had been failing from late afternoon; the river had come down in flood and a gap formed in the road approach contiguous to the north abutment of the bridge. Consequently when the car traveled up the incline of the road approach to the bridge, It collided with the north abutment of the bridge. It was not certain whether the road itself had collapsed before the car-was driven onto it or whether it was suspended over a void and collapsed when the car was driven onto it, but the fact is that the car was wrecked with loss of life and serious injury as a result. The Administrator of Natal was sued for the resultant damage. It was alleged that the road approach to the bridge collapsed as the consequence of negligence on the part of the Provincial Administration or its servants acting in the course of their employment. In an action like the present, before it can be said that there was a breach of duty in constructing the bridge, it must be shown (and the onus rests on the plaintiff) that the danger of scour such as occurred at the time in question was one which should, at the time when the bridge was constructed, reasonably have been foreseen and guarded against. The main enquiry is whether the failure to foresee and take precautions against the danger of scour has been shown to be negligent.

In an appeal by the Administrator which had been held responsible in the court a quo (1959 1 SA 624 (D)) it appeared that the features which had combined to bring about the scour which caused the collapse, namely a sand bar across the river mouth, the tide, the wind and the rain, and the resultant rising lagoon water, were all natural features which, whether regarded individually or collectively, were readily foreseeable. It further appeared that the effect of the sand bar in ponding up the lagoon water and the probable extent of such ponding were readily susceptible of

investigation. It was found that no such investigation had in fact ever been made, despite the fact that when the bridge was constructed the question of scour had been raised specifically

It was held that in the circumstances the danger of scour ought to have been foreseen when the bridge was constructed and appropriate precautions ought to have been taken against its effects. The court accordingly held that the plaintiffs had discharged the onus of establishing negligence and that judgment had correctly been granted in their favour by the court a quo.

In view of the general principles of wrongfulness and especially negligence, and with regard to the Stanley Motors precedent, no hard and fast solution to any of the given possibilities is possible:

Where the bridge is simply overtopped by flood waters (example 4.1), this does not seem to be such an extraordinary occurrence and one may well argue that the damage thus created is so evident to road users that it does not (usually) constitute a new source of damage. A motorist entering upon such a bridge may be found to have contributed to such a degree to his own harm, that the law will afford no claim due to his own unreasonable conduct (voluntary assumption of risk) or reduce any claim substantially (by virtue of the Apportionment of Damages Act 34 of 1956, as amended by Act 58 of 1971). The operation of these ancillary legal principles excluding or reducing responsibility as envisaged here, will, however, not be pursued any further.

Where the bridge approaches are washed away due to inadequate protection (example 4.2), the prima facie position would seem to be that the road authority is liable in view of the Stanley Motors, Jameson's Minors, Tilbrook and New Heriot cases, although the Potgieter case and the general principles pertaining to the cost of taking preventive steps point to non-liability The same two approaches may be adopted as regards the damage due to scouring (example 4.3) and accumulation of debris (example 4.4).

4.5 The next problem pertains to the loss of income or additional transport costs incurred by a mining company dependent on the bridge for transporting ore by road to the nearest railway station as a result of the inaccessibility of the river crossing. This touches upon a developing area in the South African law of delict, viz. that of compensation for so-called "pure economic loss" caused negligently (see Neethling et al 246-250; Boberg 103 -149). The type of loss at hand refers to financial loss, which in fact results from damage to property but which does not involve damage to the plaintiffs property after having denied this type of claim for many years, the South African courts have In more recent years acknowledged it (see especially Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) and Shell and BP SA Petroleum Refineries (My) Ltd v Osborne Panama SA 1980 3 SA 653 (D)).

To found liability for this type of loss, the defendants conduct must comply with the stated delictual requirements (see 1 supra). It would seem that the element of wrongfulness merits special attention. It is usually required that a legal duty should have been owed by the defendant to avoid pure economic loss by the plaintiff. This entails a careful weighing up of the parties involved, with special emphasis on the interests of the public at large (see Coronation Brick case at 384). In this process a court of law will pay particular attention to (i) the defendants knowledge that negligent conduct on his part would bring about economic loss to the plaintiff (which Is a fact to be established by evidence); and (ii) policy considerations.

The overriding policy consideration which has fettered the development of this type of claim, Is that to afford an action in one case may cause a chain-reaction or multiplicity of actions, for example by thousands of other road users in the example under consideration. (See e.g. for a claim which failed Franschhoekse Wynkelder (Ko-op) Bpk v SAP & H 1981 3 SA 36 (C).) In spite of academic criticism concerning our courts' application of the "multiplicity of actions" policy consideration (see e.g. Neethling et al 249-50), it is suggested that such consideration would probably prove fatal to the success of any claim envisaged by the mining company.

4.6 The solution to the next problem, viz. loss of livestock and flood damage due to the property immediately upstream of the river crossing being flooded due to excessive damming up, is in all probability governed by the same principles pertaining to examples 4.2-4.

4.7 The following practical question to be resolved pertains to loss of crops and damage to lands immediately downstream of the river crossing due to the incorrect placing of the bridge resulting in achange in the direction of flow. The incorrect placing would seem to suggest a wrongful, as well as a negligent act on the part of the road authority, the principles of which have already been touched upon in detail (see 3 supra). Insofar as the negligence issue is concerned, the imperitia culpae adnumeratur rule should be applied (see 3.2 supra). Where the incorrect placing is due to independent contractors negligence, see 5 infra.

4.8 The penultimate practical problem to be examined, is that of a passing vehicle which is washed off a bridge, which has been sized for a lesser flood but designed for overtopping. It is suggested that the same principles governing examples 4.2-4 and 4.6 apply here.

4.9 The final example for consideration is the following: A vehicle comes to grief on a bridge where reasonable warning has been given in the form of road signs or flagmen. The relevant question here is whether the road authority can escape its normal liabilities towards road users by employing danger signs. In view of the basic principles governing delictual liability (e.g. the statutory duty to build and maintain bridges, the rules pertaining to negligence and the like) it is suggested that the placing of warning signs will normally only be of assistance in the sense that such signs should alert a road user of the existence of a specific danger: if the latter should not-heed such sign, a defence of either voluntary assumption of risk which is a complete defence (cf Lamport v Hefer 1955 2 SA 507 (A)) or contributory negligence, which may effect a reduction of the amount of damages (see section 1(1) (a) of the

Apportionment of Damage Act 34 of 1956; Neethling et al 133 et seq authorities quoted there), will be available to the road authority.

5. PROFESSIONAL LIABILITY

The question as to who should be liable in delict for harm caused in the type o