Pappalardo v Hau

The appellant and respondent owned adjoining residential erven in an upmarket urban township (Waterford Estate, Sandton), with the respondent’s erf situated at a higher level than the appellant’s. After the appellant constructed his house and a solid boundary wall along the common boundary, the respondent later developed his property extensively, covering most of the land with buildings, paving and a swimming pool. Heavy rainfall thereafter caused water to accumulate and dam against the boundary wall on the respondent’s property. The respondent sought a declaratory order permitting him to insert drainage pipes through the boundary wall to allow rainwater to flow onto the appellant’s lower-lying property, contending that the lower owner was obliged to accept such water. The appellant resisted, arguing that the water was not part of the natural flow but was increased and concentrated due to urban development, and that the respondent should drain stormwater to the street instead.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order granting the appellant absolution from the instance, with the respondent ordered to pay the appellant’s costs, including expert witness costs.

The case is an important reaffirmation and clarification of South African neighbour law concerning stormwater drainage in urban areas. It confirms that lower owners are only obliged to accept the natural flow of rainwater, strictly understood as the flow that would have occurred before development, and places the onus on the upper owner to prove such flow. The judgment limits attempts by urban property owners to rely on broad notions of natural drainage and emphasises that concentrated or artificial discharge requires a servitude or statutory authority.