The High Court has found a municipality liable for damage suffered by a business because an interruption in the water supply hampered efforts to fight a fire at its premises.
Cobra Towing CC brought a claim against the Mangaung Metropolitan Municipality for damages that resulted from a fire at its premises in East End, Bloemfontein, in November 2018. The municipal manager and the metro fire chief were cited as the second and third defendants, respectively, in the matter.
The plaintiff claimed R785 714.30, of which R648 542.02 was for the loss of vehicles and spare parts and R185 292.58 was for loss of income from the sale of the vehicles and spares.
It was common cause there was a water interruption to the East End area on the day of the fire, and consequently no water was available at Cobra’s premises.
Eduan Wepener, an employee who was on the premises on the day of fire, testified that staff were unaware that the water supply had been turned off. Wepener said he had not used water or restrooms earlier in the day.
The fire broke out while another employee was using a grinder on a wrecked vehicle in a storage area.
Wepener said the employee who was using the grinder deployed a fire extinguisher, which had been placed near the wreck, in an attempt to extinguish the fire.
Wepener said he ran to a hose reel inside the building and rolled it off. When he opened it, there was no water. There was another hose reel outside the building, but it, too, had no water.
Meanwhile, the fire spread to a second vehicle.
Wepener testified that he ran to Cobra’s other premises, which were about two blocks away, to fetch a second fire extinguisher. When he returned, people from a next-door business were trying to extinguish the fire with their extinguishers.
Staff from Cobra also tried to extinguish the blaze with a portable fire-fighter, but they were unsuccessful.
According to Wepener, a municipal fire truck arrived about 25 minutes after the fire started. The hoses were rolled out, but the truck had no water. The fire fighters tried to connect the hoses to the fire hydrant outside, but, again, there was no water.
About five to seven minutes later, a water tanker from the fire brigade arrived, and it was connected to the fire truck. But, Wepener said, the water ran out after about 10 to 15 minutes. At this stage, he said the fire was under control, although it was still smoking.
The water truck left to refill, and during 15 to 20 minutes it was away, the fire re-ignited.
In the meantime, staff had refilled their portable fire-fighter and used it on the fire.
After the water tanker returned, the fire truck again sprayed water on the fire to extinguish it, but by that time the fire had spread beyond the storage area.
According to Wepener, the fire was not fully extinguished when the fire brigade left the scene. There were no flames, but employees used buckets to throw water onto the areas that were still smoking.
No water in the hydrants
In a judgment handed down this month, Judge C. van Zyl said a constant flow of water, which could have been obtained only from the hydrants, was necessary to have extinguished the fire. If water had been available, Wepener would have been able to contain and extinguish the fire using the hose reels.
She said Wepener’s inability to contain the fire was not because Cobra’s permanent fire-fighting equipment was inadequate but because there was no water in the hose reels.
Judge Van Zyl was also of the view that the “second” spreading of the fire occurred when the water tanker left to fill up with water. If there had been water in the fire hydrants, the water tanker would not even have been necessary, because the fire truck would have extracted water directly from the fire hydrants.
Possible defences not pleaded
The judge addressed the legal duties and arguments related to the municipality’s water supply obligations and the defence’s arguments concerning water service interruptions.
It was undisputed that the Mangaung Metropolitan Municipality had a legal and statutory duty to provide water to residents and businesses in the East End area, including during the fire. It was also acknowledged that there was a water interruption on the day of the fire, which resulted in the premises and fire hydrants being without water. This lack of water was prima facie considered a wrongful omission by the municipality.
Judge Van Zyl said that if the defendants wanted to justify their failure to supply water by claiming it was beyond their means or resources, they needed to specifically plead this justification. By not doing so, the defendants failed to provide the necessary evidence to support such a defence. As a result, the plaintiff would not have been expected to bear the burden of proving all the issues in dispute.
The defendants attempted to use the municipality’s by-laws as a general defence for the water interruption. These by-laws indicate that the municipality is not obligated to provide an uninterrupted water supply and can interrupt service in emergencies without prior notice.
However, Judge Van Zyl said that relying on these by-laws as a defence required specific pleading of the statutory authority based on the by-laws. Simply citing the by-laws without proper pleading did not suffice for a valid defence.
No notification
Judge Van Zyl was of the view that a reasonable person in the position of the municipality would have foreseen the reasonable possibility that the extended interruption of the water could injure another person’s property and cause patrimonial loss, and such a reasonable person would have taken reasonable steps to guard against such occurrence.
The municipality failed to take such reasonable steps.
She said the municipality could easily have forewarned or informed, depending on the circumstances, the residents and businesses in the East End area of the interruption of water by means of different media and social media platforms, which would have eliminated the risks.
In this regard, when Wepener was asked during cross-examination why they performed grinding operations knowing there was no water, he testified he was not aware that the water supply had been interrupted, and if he had been notified about it, they would not have performed grinding activities.
Judge Van Zyl found that municipality’s wrongful and negligent omission was the cause of Cobra’s general damages. She ordered the defendants to pay Cobra R648 542.02 plus mora interest from the date of service of the summons to the date of payment, as well as the costs of the action.
But the judge found the evidence for the consequential damage inadequate and rejected the claim for R185 292.58 because of insufficient proof.
