Diamond Core Mining & Operation (Pty) Ltd v De Venter N.O and Others (299/05) [2005] ZANCHC 98 (9 September 2005)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN

THE HIGH COURT OF SOUTH AFRICA

(Northern Cape Division)

Case no: 299\05

Date heard: 2005-09-02

Date delivered: 2005-09-09

In the matter of:

DIAMOND CORE MINING & OPERATION (PTY) LTD APPLICANT

versus

ALETTA HENDRINA VAN DEVENTER N.O. 1ST

RESPONDENT

JOHANNES FREDERICK VAN DEVENTER N.O. 2ND

RESPONDENT

CHRISTOFFEL ARNOLDUS VAN DEVENTER N.O. 3RD

RESPONDENT

MARIANA VAN DEVENTER N.O. 4TH

RESPONDENT

Coram:

MAJIEDT

J

JUDGEMENT

MAJIEDT J:

In this opposed application the applicant seeks relief which is based largely upon the mandament van spolie. The applicant’s case is premised on an alleged peaceful and undisturbed possession of:

a) the right to draw water from the Vaal River adjacent to the respondents’ property;

b) the right to draw water over the respondents’ property;

c) a pipeline which it had installed over the respondents’ property.

It is the applicant’s case that it has been spoliated of the aforementioned possession by the respondents by virtue of being wrongfully dispossessed thereof.

In essence the respondents’ defence on the papers is one of a denial that the applicant had been in peaceful and undisturbed possession.

In addition to the aforegoing, certain further defences in law were raised in the heads of argument on behalf of the respondents, namely:

a) that the applicant has delayed for more than a year to launch this application and should therefore show special circumstances justifying such delay before the application can be considered;

b) that an order based on the mandament van spolie would have no practical effect;

c) that any servitude which may have existed had lapsed due to the abandonment thereof by the applicant or its predecessor in title.

4.1 The facts herein are fairly simple and are mostly common cause between the parties. The applicant carries on business as a diamond mining and exploration company and, although this has been to some extent disputed, it can be accepted that the applicant is the successor to a company known as Mazal Mining (Pty) Ltd having undergone a name change during February 2003. In this judgement any reference to “the applicant” includes the present applicant as well as its predecessor, Mazal Mining.

4.2 The respondents are the trustees of the De Bad Trust which is the registered owner of the farm De Bad, no.

155. The applicant is the registered owner of portion 18 (a portion of portion 17) of the farm Paardeberg East and the applicant also owns the mineral rights in respect of its aforementioned property.

4.3 The applicant has established a diamond processing and sorting plant on its aforementioned property. This plant requires large amounts of water for its operation and such water was being drawn from the Vaal River, which is approximately some 18 kilometres from the applicant’s aforementioned plant.

4.4 The respondents’ property as aforementioned is adjacent to the Vaal River and in order to convey water from the river to its property, the applicant had laid a water pipeline over the respondents’ aforementioned property as well as two other properties belonging to a third party in order to reach the applicant’s plant. The requisite consent was obtained by the applicant from the respective property owners for the installation of the pipeline over their land.

4.5 The applicant had received permission from the late Mr. Van Deventer, the deceased spouse of the first respondent, to install the pipeline over the respondents’ property. In granting such consent, the late Mr. Van Deventer had represented the aforementioned De Bad Trust.

4.6 The applicant had also received the requisite government approval to draw water from the Vaal River in terms of section 28A of the Environment Conservation Act, 73 of 1989.

4.7 The pipeline which the applicant had constructed ran some 7.296 kilometres from the Vaal River over the respondents’ property and a further 11.3 kilometres over the other two farms owned by one Du Toit and his wife, known as Uitkyk, to reach the applicant’s diamond and processing plant on its farm Paardeberg East.

It is further common cause that there had been an existing pipeline which belonged to the respondents and which they had utilised for their farming operations. As was agreed further between the parties, a water retention dam was constructed by the applicant on the respondents’ property where the aforementioned existing pipeline terminated. This dam was for the joint use of the applicant and the respondents. Water was conveyed from the Vaal River along this existing pipeline to the retention dam which had been constructed by applicant. The applicant had then laid its pipeline from the water retention dam towards its own property across the respondents’ property and over the adjacent farm Uitkyk. It is also further common cause that by agreement between the parties, the new pipeline which was constructed by the applicant contained three abstraction points between the water retention dam and the extreme boundary of respondents’ property from which 10 000 litres of water per abstraction point per day could be drawn by the respondents for their own usage.

In accordance with the agreement mentioned hereinbefore, the applicant constructed a water retention dam on the respondents’ property in and during 2000 and thereafter constructed the pipeline. Subsequent to the death of the late Mr. Van Deventer during December 2002, his widow the first respondent, together with the other respondents managed the running of the farming operations on the respondents’ property. During approximately April 2003 the applicant had ceased its operations at its diamond mining and processing plant at Paardeberg East. The applicant avers that this was only a temporary cessation of activities pending a restructuring and reorganization of the applicant and its mining operations. A labourer in the employ of the applicant who, by consent of the respondents, had resided on the respondents’ property with a view to supervising and maintaining the pipeline, was also withdrawn from the respondents’ farm during approximately April 2003.

The respondents interpreted the aforementioned withdrawal of the applicant’s labourer and the cessation of its activities at its mining operations together with the fact that, according to the first respondent’s answering affidavit, they were not able to make contact with the applicant, to mean that the previous agreement between the respondents (represented by the late Mr. Van Deventer) and the applicant’s predecessor, Mazal Mining (Pty) Ltd, had lapsed. The respondents aver further that due to this lapse of the agreement, all the water pipes, pumps and other accessories erected by the applicant had by agreement between the parties become the property of the respondents in their capacities as trustees of the De Bad Trust.

The respondents conclude in their answering affidavit that Mazal, as predecessor of the applicant, had since April 2003 not been in peaceful and undisturbed possession of any of the pipes, pumps or any other accessories on the respondents’ farm.

9.1 It is convenient to deal firstly with the aspect of delay in bringing this application as raised by Mr. Van Rhyn for the respondents in his heads of argument.

9.2 It is settled law that there is a common law rule which is used as a guide to the effect that an applicant must launch an application based on the mandament van spolie within a year, otherwise special circumstances must be shown before such an application can be proceeded with.

See in this regard: Le Riche v PSP Properties CC and others 2005(3) SA 189 (C) at 198 E-F (par. 25) and at 203 C-E (par. 43).

9.3 On behalf on the respondents Mr. Van Rhyn has submitted that the applicant had ceased the usage or possession of the pipeline since April 2003 and that a period of more than two years has already elapsed before this application was launched. It was also submitted that the applicant’s aforementioned failure to bring an application within one year of the alleged dispossession must lead to an inference that it has abided in the dispossession.

See: CG Van der Merwe Sakereg 2nd edition at 147.

9.4 In my view there is no merit in this contention. In the founding affidavit on behalf of the applicant, Botoulas, who is its managing director, makes the averment that the pipeline had last been inspected during the final quarter of 2003 by its mine manager, a Mr. Swanepoel and by an engineer who had installed the pipeline, a Mr. Mynhardt. During that inspection the pipeline was found to be intact. At this stage the applicant had already temporarily suspended its operations at the Paardeberg East plant, according to Botoulas. It is further alleged by Botoulas that the applicant only became aware during 26 October 2004 through another inspection that the pipeline had been removed by the respondents. Consequently, so the applicant avers, it has launched the application within a period of one year of becoming aware of the dispossession (the notice of motion was issued on 30th March 2005). On behalf on the respondents, Mr. Van Rhyn has countered this contention by pointing out that any failure to discover the dispossession earlier, was entirely the fault of the applicant, having abandoned its operations at Paardeberg East. It is, however, important to point out that in response to the aforementioned averments of Botoulas in the founding affidavit, the first respondent in her answering affidavit on behalf of all the other respondents, indicates that she has no knowledge of these averments and has required applicant to prove same.

9.5 I am of the view that the aforementioned response does not constitute anything else but a bare denial. Based on the rule in Plascon Evans Paints v Van Riebeeck Paints 1984(3) SA 623 (A), this cannot be said to be a genuine dispute of facts raised by a respondent whereby such a respondent’s version is to be accepted in an opposed application such as the present one.

Consequently I am of the view that the applicant’s averment that it has become aware of the dispossession only during October 2004 must stand and the point taken by Mr. Van Rhyn for the respondents that there has been an undue and unexplained delay, must be rejected.

I turn now to the aspect relating to the practical effect that any order as sought by the applicant would have herein. A Court has a discretion to refuse an application for the mandament van spolie where, due to effluxion of time before the application had been launched, the relief granted to an applicant would have no practical effect.

See in this regard: Jivan v National Housing Commission 1977(3) SA 890 (W) at 893 A-B.

This is so because a delay on the part of an applicant to bring his application may either confirm or display a state of mind in which the applicant had acquiesced the alleged dispossession.

See Jivan v National Housing Commission supra at 893 H.

Mr. Van Rhyn has submitted that the pipes which are required to conduct the water from the river to the plant can no longer be used, since it has been removed during 2003. The simple answer to this is that on the respondents’ papers the pipes are presently in storage at the respondents’ farm. Furthermore Mr. Van Rhyn’s submission that the applicant does not require the pipes at present since it has dismantled the plant, has no merit since the applicant has indicated quite clearly that it is in the process of having a new plant manufactured for installation at Paardeberg East.

I am consequently of the view that this argument must also fail.

The most important defence put up by the respondents and one which is not entirely without merit, is the averment that the applicant has not been in peaceful and undisturbed possession of the pipeline. At the outset I must emphasize that one should draw a clear distinction between the pipeline as a unit and the individual pipes. It is common cause on the papers that the respondents have removed the pipes on their property (i.e. from the retention dam to the boundary) so that the pipeline as a unit is no longer intact and is therefore at the present stage unusable to the applicant. The question that must be answered is whether the applicant had in fact been in peaceful and undisturbed possession at the time when the respondents had removed the pipes from its property. It is quite puzzling that the respondents do not in their answering affidavit as deposed to by the first respondent on their behalf, disclose to the Court the exact date on which the dismantling and removal of the pipes had occurred. Be that as it may, what is required to be determined herein, is whether after April 2003 the applicant had in fact been in peaceful and undisturbed possession of the pipeline. As I have already indicated, the respondents’ case is that the removal of the labourer employed by the applicant and who had resided on the respondents’ farm with the latter’s consent, together with the cessation of operations by the applicant at Paardeberg East, amounted to the applicant relinquishing possession of the pipeline.

With regard to the right to draw water from the Vaal River over the respondents’ land, the applicant in this matter is required to establish quasi possession of the incorporeal right. That means that the applicant has to show on a preponderance of probabilities that it had actually exercised the right or that there is some outward manifestation of its use. It is not required of the applicant to prove at this stage that it is entitled to this right to draw water from the river and over the respondents’ land.

See in this regard: Bon Quelle Eiendoms Beperk v Munisipaliteit van Otavi 1989(1) SA 508 (A) at 514;

Telkom v Xsinet 2003(5) SA 309 (SCA) at 313 A-B.

Furthermore it is important to bear in mind that in our law a possessor is not required to show continuous occupation in order to maintain possession. Sufficient continuity of occupation needs to be determined on the facts of each case which may involve an enquiry into the nature of the thing possessed and the type of use to which it has been put.

See in this regard: Nienaber v Stuckey 1946 AD 1049 at 1058.

Mr. Peter for the applicant is correct in my view in his submission that on the common cause facts in this application the applicant had clearly and unequivocally exhibited its right to draw water by the construction and use of both the retention dam and pipeline. In my view the applicant has in the circumstances clearly established quasi possession. There can be no argument against a finding that at April 2003 the applicant was in fact in peaceful and undisturbed possession of the pipeline. Subsequent to April 2003, the fact that the applicant had temporarily suspended its operations for restructuring and reorganization purposes, does not to my mind constitute an outward manifestation of an abandonment or relinquishing of its possession. On the contrary, the respondents took to self-help in removing the pipes in my view. The averment on behalf of the respondents that they were unable to make contact with the applicant is quite unpersuasive and falls to be rejected in my view. The applicant’s averment that it had clear signboards displaying its contact details on its plant at Paardeberg East, which is some 25 kilometres away from the respondents’ farm, had not been disputed. In addition, it would appear that Mr. Potgieter, an attorney from the firm Duncan and Rothman, had been in contact with both the first respondent and the applicant and its predecessor, Mazal Mining. It

is therefore incomprehensible to me how the first respondent can aver in her answering affidavit that she had been unable to make contact with the applicant to establish whether it had in fact abandoned possession of the pipeline or not. The respondents also sought to rely on hearsay evidence in this respect. This hearsay related to information gleaned from a Jaco du Toit from the neighbouring farm Uitkyk. Mr. Peter for the applicant has argued that this hearsay should be disregarded completely and Mr. Van Rhyn has, quite correctly so, not contended otherwise. In the premises, I am therefore of the view that the applicant has made out a case that it had in fact been in peaceful and undisturbed possession of the pipeline, even after April 2003.

As regards the point on the lapse of the servitude, Mr. Van Rhyn has not elaborated much on the submissions contained in his heads of argument. In any event, my findings in the immediately preceding paragraph spells the death knell of that particular argument, which is closely related to the question whether the applicant had in fact been in peaceful and undisturbed possession at the material times. The de facto servitude of aqueduct was, to my mind, quite clearly in place at the time of the act of spoliation by the respondents. In this regard I refer to my reasons set forth in the preceding paragraph. There can in my view be no room for an argument based on an abandonment of its rights by the applicant on the proved facts of this case.

By virtue of the aforementioned findings and the reasons therefor, the applicant is entitled to the relief sought. The applicant has couched its order in a form which is required to restore full and proper possession to it as was the case prior to spoliation.

See in this regard: Sebastian and others v Malelane Irrigation Board 1950(2) SA 690 (W).

I am satisfied that an order in the terms sought in the notice of motion would afford the applicant the relief that it is entitled to.

I consequently issue the following order:

a) The respondents are hereby ordered and directed to forthwith restore possession to the applicant of the pipeline along the route demarcated in green in Annexure E to the founding affidavit of Theodoros Botoulas (hereinafter in this order referred to as “Botoulas”).

b) The respondents are ordered and directed to forthwith restore possession to the applicant of the right to draw water from the Vaal River via the retention dam built on their property at the point where the pipeline along the route demarcated in black meets the pipeline demarcated in green in Annexure E to the founding affidavit of Botoulas.

c) The respondents are hereby ordered and directed to forthwith restore possession to the applicant of the right to draw water across the respondents’ farm remaining extent De Bad 155 Kimberley, from the point where the pipeline along the route demarcated in black meets the pipeline demarcated in green in Annexure E to the founding affidavit of Botoulas.

d) The respondents are hereby ordered and directed to forthwith repair and reinstall the applicant’s pipeline from the said retention dam along the route in green in Annexure E to the founding affidavit of Botoulas conforming to the specifications set forth in paragraph 22 of the founding affidavit of Botoulas.

e) Failing compliance with paragraphs (a), (b), (c) and (d) above, the Sheriff of this Court is hereby ordered and directed to do all such things and take all such steps necessary to give effect to paragraphs (a), (b), (c) and (d) above.

f) The respondents are hereby ordered to pay the costs of this application jointly and severally, the one paying the other(s) to be absolved.

___

SA MAJIEDT

JUDGE

FOR THE APPLICANT : ADV J PETER

instructed by Duncan and Rothman

FOR THE DEFENDANT : ADV AJR VAN RHYN SC

instructed by André Potgieter and Partners

Date of Hearing : 2005-09-02

Date of Judgement : 2005-09-09