Durban - The eThekwini Municipality faces a R5 million claim to compensate a battery chicken farming company after it was forced to dump almost 62 000kg of meat because of water contamination.
On top of that, Rainbow Farms in Hammarsdale also had to replace pipes, water meters and equipment when the muddy water, filled with rubble, silt and sand, flowed into the plant on two occasions because of a fractured pipe further up the water supply network.
The incident occurred in 2007, but the municipality refused to concede liability and it was argued before Durban High Court Judge Dhaya Pillay only this month.
The judge rejected what she said were somewhat “novel and intriguing defences” put up by the city.
She said that had it made the “appropriate concessions” at the time, the trial would have been curtailed, if not avoided.
She did not rule on the amount the city would have to pay.
But Rainbow’s attorney Donovan Avenant confirmed that the claim was for almost R5 million, which excluded interest.
“My plan is to approach the municipality with the documentation substantiating the claim and hopefully we can settle and not have to wait more years to bring this to finality,” he said.
The incidents happened at a time when the city had engaged contractors to replace old water pipes with new steel ones.
The pipe to Rainbow was damaged twice, sending contaminated water down the line to the chicken production plant.
At issue, Judge Pillay said, was who was responsible and who was liable.
Evidence before her was that Rainbow’s production manager Devendaran Moodley, noticing a drastic drop in water pressure, had gone in search of the cause and had come across a heavy excavator in a muddy pool of water with two city employees in attendance, seemingly trying to sort out the problem.
The judge said a civil engineer had testified that it was vital when working next to existing services to locate where they were and to avoid damaging them. This could be done through plans and by digging trenches.
Any heavy machinery would damage them and this was “extremely foreseeable”.
And had a supervisor been on site – as was the norm – it could have been avoided.
The first incident on July 6 was caused when the operator of the excavator moved his bucket to stop his machine sinking into the ground and the pressure fractured the line.
The second, four days later, occurred when the excavator was collecting fill material and moved a clip in the joint of the pipe, causing a leak which then caused the heavy machine to get stuck, putting more pressure on the line.
After this, the heavy machinery was pulled off site and all further excavations were done by hand.
The city raised several defences including an indemnity that it could not be held liable for damages or compensation arising from anything done by it in terms of the by-laws.
However, the judge noted, the city’s own witness, head of water in Hammarsdale Mark Backman, had not assisted its cause by testifying that the upgrade (in terms of the by-laws) was to a pipeline 2m to 4m away from the one which supplied water to Rainbow.
When finally conceding on this issue during argument, its lawyers then contended that Rainbow’s losses occurred as a result of the shut-down of the water supply to fix the damage, not the damage itself.
To believe this, the Judge said, would be to ignore the substantial evidence of how the pipe came to be damaged.
As to the city’s claim that it had taken all “reasonable precautions” to avoid the damage, the judge said this was also not true.
“The municipality failed to lead any evidence to prove this … how such false and misleading information found its way into the court pleading remains unexplained,” she said, noting that in argument the lawyers had finally conceded the foreseeable harm and its failure to take reasonable steps to avoid it.
She said while the city had also referred to by-laws which stated that it did not have to maintain an uninterrupted supply of a particular pressure or quality “this can hardly be read to imply a licence to act negligently”.
“In my opinion, the legal convictions of the community call for the municipality’s conduct to be declared wrongful and unlawful.”
She absolved the contractors from any responsibility, saying the city should have supervised their work.