A September 2024 judgment of the Free State Division will be of interest to insurers who provide liability cover to municipalities, as the claimant succeeded in its cause of action against the municipality based on a water interruption which was entirely unexplained.

When a fire broke out at a scrapyard in Bloemfontein, the owner sued the Mangaung Metropolitan Municipality and its officials for damages, alleging that the fire could have been contained and extinguished if there had been water supply to the premises and the fire hydrants.  The municipality had conceded that it had a legal and statutory duty to ensure water supply to residents and businesses within its jurisdiction, within its means and available resources, but denied liability, arguing that the fire was caused by the plaintiff’s own negligence and that the interruption of water supply was not wrongful or negligent. Whilst accepting that there was no water at the plaintiff’s premises, the municipality did not admit that it breached its legal or statutory duty and argued that the plaintiff had not established the cause of the water interruption. It also argued that its bylaws stated that it did not undertake to maintain an uninterrupted water supply or a specific pressure or rate of flow, and that it could interrupt the water supply in an emergency without prior notice. In that context, the court’s formulation of the duty of the municipality is odd.

The court held that the municipality’s omission to supply water was prima facie wrongful (given the conceded statutory duty) and that the municipality had failed to plead or prove any ground of justification, such as statutory authority or an emergency as contemplated in the bylaws.  This conclusion is incorrect, given that the plaintiff did not in the first instance establish the cause of the water interruption or that it was linked to conduct on the municipality’s part in breach of any legal or statutory duty. The court did not address the possibility that such a finding of wrongfulness would open the floodgates of litigation against public utilities.

The court held that the municipality’s omission was negligent, as a reasonable person in its position would have foreseen the possibility of harm by an extended water interruption and would have taken reasonable steps to prevent or limit it, such as informing the public of the water interruption and its duration. The court rejected the municipality’s defence of contributory negligence, finding that the plaintiff had complied with the relevant fire safety regulations and had taken reasonable steps to combat the fire.  An examination of the negligence of the parties depends on wrongfulness which, on the evidence, was never established.

The court determined that the municipality’s omission was the cause of the plaintiff’s general damages for its loss of vehicles and spare parts, as the fire would not have spread or re-ignited if there had been water available for the plaintiff’s fire-fighting equipment and the fire brigade’s trucks and hydrants. The court, however, dismissed the plaintiff’s claim for consequential damages, as the plaintiff had failed to prove the quantum and the basis of calculation of the loss of income from the sale of the vehicles and spare parts.

The decision should be approached with extreme caution. There are peculiarities in the way the matter was pleaded and argued, and the court was wrong in assuming a breach of duty on the part of the municipality simply because water did not arrive at the plaintiff’s premises. The court also failed to consider the floodgates and other public policy issues. It will be interesting to see if the judgment is taken on appeal.

Cobra Towing CC v Mangaung Metropolitan Municipality and Others (2024)