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WATER UTILITIES CORPORATION v. RODERICK 1993 BLR 164 (HC)
Citation: 1993 BLR 164 (HC)
Court: High Court, Lobatse
Case No:
Judge: Martin Horwitz Ag J
Judgement Date: June 10, 1993
Counsel: Mr. Carr-Hartley for the appellant. Respondent in person.
Flynote
Costs - Separate claim for - Not permissible.
Damages - Claim for - Damages only awarded for patrimonial loss and not in respect of intangible
loss.
Headnote
The appellant had wrongly and without notice cut off the respondent's water supply. The respondent
had C successfully claimed in a magistrate's court, inter alia, for costs he had incurred in obtaining
legal advice prior to claiming and damages for inconvenience and embarrassment. The respondent
had not specifically claimed in contract or delict. The appellant appealed against the magistrate's
award.
Held: (1) the legal advice had clearly been in connection with the matter for which he had issued
summons and D he could not sue therefor as a separate claim. The correct procedure was for him to
issue summons and if successful the costs of legal advice would be an item to be taxed together with
his other costs.
(2) Only patrimonial loss could be claimed for breach of contract, i.e. it had to be patrimonial loss
sounding in money and not in respect of intangible loss. E
(3) As to the potential alternative that the respondent was claiming for injuria, he had to show an
intention to wound or harm and had failed to do so.
(4) In so far as his claim was based on the aquilian action, a court could only award actual
patrimonial loss.
Case Information
Cases referred to:
(1)
Behm v. Ord 1953 (4) S.A. 96 (C).
(2)
Administrator, Natal v. Edouard 1990 (3) S.A. 581 (A).
(3)
Monumental Art Company v. Kenston Pharmacy (Pty.) Ltd. 1976 (2) S.A. 111 (C).
Appeal against a decision in a magistrate's court. The facts are sufficiently set out in the judgment.
Mr. Carr-Hartley for the appellant.
Respondent in person.
Judgement
MARTIN HORWITZ AG J.
H
This appeal is the result of an action by a customer of the Water Utilities Corporation who had his
water supply wrongly and without any notice cut off on 19 February 1991 at sometime in the
afternoon and reconnected at sometime on 20 February 1991. The customer (the respondent in the
appeal) came home on the evening of 19 February 1991 to find that he had no water
G
1993 BLR p165
MARTIN HORWITZ AG J
with which to cook his evening meal. He says he was unable to use the lavatory nor could he bath.
He was so A upset, he says, that he did not sleep all night because he had, on more than one
occasion, told the Water Utilities (the appellant) that the account was wrong. Finally, they agreed
and told him he had nothing to worry about. Nevertheless they, without warning, cut off his water
supply. He was extremely annoyed, and justifiably so, more particularly since he did not owe the
appellant any money and, as I have said, the appellant had told him not to worry, it would not cut his
water supply. B
The respondent appears to have been determined to suffer his deprivation to the fullest extent. For
example, he did not buy some food from a take-away but fasted. He could not bath or shave and
went unwashed to the appellant's offices to protest. He says he felt ashamed and humiliated. C
Although the appellant credited the respondent's account with the money which had been shown as
owing, the appellant nevertheless had the impudence to demand and charge a reconnection fee of
P30.00.
The respondent claimed the following:
1.
P71.55 wrongly debited - but this matter had been adjusted by the time the trial took place.
2.
P30.00 reconnection fee;
3.
P100.00 for legal advice which he had obtained and paid;
4.
P61.43 a day's leave;
D
5.
P17.37 for inconvenience of going without food, without a bath and embarrassment before the
neighbours and the public. "False accusation, loss of use of the lavatory and loss of sleep occasioned E by
extreme vexation."
There were no proper pleadings, the summons being a letter setting out all his complaints, which the
learned magistrate, with great forbearance, treated as a proper summons. The magistrate gave
judgment for the respondent in the several sums of P30.00 reconnection fee, P100.00 paid for legal
advice, P61.43 one day's F leave and P500.00 general damages for going without food and being
deprived of the use of the lavatory and loss of sleep. The respondent has appealed.
It is unclear if the respondent claims on the contract or in delict and I will assume that he has
pleaded in the alternative. If his claim is contractual then he is clearly entitled to payment of the sum
of P30.00 for the reconnection fee. As to his claim for the cost of legal advice, I do not know what
the legal advice was. It may well G have been that he had no case. In any event since the legal
advice was clearly in connection with the matter for which he had issued summons he could not sue
as a separate claim for the costs of the legal advice (whatever that advice was). His correct
procedure was to issue a summons and if he was successful then the costs of legal advice would
have been an item to be taxed together with his other costs. See Behm v. Ord 1953 H (4) S.A. 96 at
p. 99 per Ogilvie Thomson J.
"In the absence of an agreement to pay costs, it is a condition precedent to their recovery qua
costs that the Court should have made an award of costs in favour of the party who is now claiming
them: and, as was rightly
1993 BLR p166
MARTIN HORWITZ AG J
emphasised by Mr. Wessels in his argument for defendant, costs are in the discretion of the
Court. True, that discretion is, A in the main, exercised in accordance with established rules - e.g.
that costs normally follow the event - but the fact remains that the Court exercises the widest
discretion in relation to costs, and, in an appropriate case, it may refuse a successful party his costs."
In so far as the day's leave is concerned he was paid by his firm and even if his argument that he has
been B deprived of the day's leave in future is good there was no evidence that he would have been
deprived of that leave in the future.
The common law of claims for inconvenience caused by a breach of contract was finally settled in
South Africa in the case of Administrator, Natal v. Edouard 1990 (3) S.A. 581 (A). The judgment
was to the effect that only C patrimonial loss can be claimed for breach of contract. In other words it
must be a patrimonial loss sounding in money and not in respect of intangible loss. To make it clear
in this case: Had the respondent instead of moping, gone out and had a reasonable dinner he would
have been entitled to the reasonable costs of feeding himself but he is not entitled to be compensated
for the irritation he suffered by going hungry as a result of the appellant's D wrongful breach. I
should point out that breach of promise cases are not authority for the proposition that a breach of
contract founds a claim for damages for wounded feelings. The award is for damages for lying in
expenses but other damages suffered as a result of a breach of promise, such as damages awarded
for wounded feelings, flow from the injuria. E
I therefore turn to the assumed alternative claim and that is that the cutting of the water supply was
an injuria. Unfortunately for the respondent, to found a claim for an injuria there must be an
intention to wound or to harm and there appears to me to be no evidence of an intention to wound. I
do not think it would be reasonable to find that the appellant deliberately cut off the respondent's
water to cause him harm. If it was an aquilian action, i.e. based on negligence, a court could only
award actual patrimonial loss: see Monumental Art Company v. F Kenston Pharmacy (Pty) Ltd.
1976 (2) S.A. 111 (C).
In the event the appeal succeeds in respect of the claims for legal advice (P100.00) and P500.00 for
general damages. The judgment is therefore altered to read:
Judgment in the sum of P30.00 is awarded to the plaintiff.
G
Although the appellant has succeeded in the main, since it is its own wrongful behaviour that is at
the root of this matter I will make no order as to costs.
Appeal upheld in part.