Gianfelice Pappalardo v Gary Hau

The appellant and respondent owned adjoining erven in Waterford Estate, Sandton. The respondent's property (erf 945) was higher-lying than the appellant's (erf 944), both sloping from south to north. The appellant built first and constructed a 2-metre boundary wall along the common boundary. The respondent subsequently built his residence, a swimming pool, and extensive paving, with at least 70% of his property covered by buildings, paving and pool. After completion in December 2003, the respondent noticed rainwater gathering in the north-western sector of his property, damming against the appellant's boundary wall. The respondent sought to insert drainage pipes into the wall to discharge water onto the appellant's property. The appellant refused, contending he was not obliged to accept increased water flow resulting from the respondent's building operations. The respondent instituted action seeking a declaratory order entitling him to insert drainage pipes into the boundary wall.

• Whether a lower-lying property owner in an urban township is obliged to accept rainwater flowing from a higher-lying neighbour's property
• What constitutes 'natural flow' of water in the context of developed urban properties
• Whether the upper owner must prove the 'natural flow' that would have existed before urban development
• Whether the upper owner has the right to concentrate water flow at particular points without a servitude
• The effect of section 13(2) of the Sandton Town Planning Scheme on the parties' rights and obligations

1. The appeal is upheld with costs. 2. The order of the court below is set aside and the following order substituted: (a) The defendant is granted absolution from the instance. (b) The plaintiff is ordered to pay the defendant's costs, including the costs of the expert witness Korsman.

1. In urban environments where development has fundamentally altered the natural topography, a higher-lying property owner seeking to enforce a right to discharge water onto a lower-lying neighbour's property bears the onus of proving what the 'natural flow' of water would have been before development occurred. 2. 'Natural flow' refers to both the quantity and the pattern (locality) of water flow that would have occurred over undisturbed land before urban development. 3. An upper property owner has no right, without an express servitude, to concentrate the flow of water at particular points even if the total quantity equals what would have flowed naturally, as this imposes a different burden on the lower owner than would have existed naturally. 4. Where town planning schemes make provision for drainage and contemplate drainage to streets where practicable, an owner must comply with such provisions rather than discharge water onto neighbouring properties.

The court noted that there is much to be said for adopting the approach in Bishop v Humphries (as qualified by Professor Scholtens) as correctly reflecting the common law - namely that in urban environments the very creation of townships puts an end to a large extent to the natural servitude regarding water flow, and each owner must make provision for water on their own property or discharge it to the street. However, the court stated it was not necessary to decide this definitively in this case. The court also commented on the difficulty and expense of proving 'natural flow' after development has occurred, suggesting this would be 'virtually impossible' and 'prohibitively costly' in most cases. The court noted that the National Building Regulations issues raised were not properly determined and would not bar the respondent from approaching the local authority about any alleged contraventions.

This case provides important clarification of neighbour law principles relating to water drainage in urban environments in South Africa. It confirms that while the principle that lower-lying owners must accept 'natural flow' from higher properties may still exist in urban contexts, the party seeking to enforce this right bears the onus of proving what the 'natural flow' would have been before urban development. The judgment emphasizes the practical impossibility of determining 'natural flow' after urban development has fundamentally altered topography through buildings, paving, and other structures. It establishes that upper owners cannot concentrate water flow at particular points without an express servitude. The case also clarifies the interpretation of town planning schemes that require drainage to streets where practicable. The judgment provides guidance on the application of historic neighbour law principles (actio aquae pluviae arcendae) to modern urban property disputes.