Du Preez and Others v Viljoen NO and Others (A174/2016) [2017] ZAWCHC 113 (11 October 2017)

Du Preez and Others v Viljoen NO and Others (A174/2016) [2017] ZAWCHC 113 (11 October 2017)

The court found that the probabilities strongly favoured the respondents' assertion that the upper furrow had not been used during the statutory window period required by the National Water Act. Therefore, the appellants' current abstraction of water via the furrow did not qualify as an existing lawful water use and...

Source-derived case information.

Citation
[2017] ZAWCHC 113
Parties
Appellant: Hennie Du Preez; Appellant: Isak Bartolomeus Mostert N.O.; Appellant: Elizabeth Emma Mostert N.O.; Appellant: Hercules Christian van Heerden N.O.; Appellant: Willem Stephanus Conradie; Respondent: Philipus Jakobus Viljoen (Snr) N.O.; Respondent: Philipus Jakobus Viljoen (Jnr) N.O.; Respondent: Arnoldus Jacobus Stofberg N.O.; Respondent: George Johan Viljoen; Respondent: Minister of Environmental Affairs and Development Planning (Western Cape); Respondent: Minister of Water Affairs and Sanitation
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 October 2017
Case Number
A174/2016
Procedural Posture
Civil Appeal / Appeal From Interim Interdict Order
Outcome
Appeal dismissed with costs; interim interdict confirmed.
Judges
A.G. Binns-Ward, D.V. Dlodlo, C.M. Fortuin
Legal Topics
National Water Act, Interim Interdict, Existing Lawful Water Use, Riparian Rights, Servitude of Aqueduct, Urgent Application
Land and Property Environmental Law Civil Procedure National Water Act Interim Interdict Existing Lawful Water Use Riparian Rights Servitude of Aqueduct +1 more

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Parties

Hennie Du Preez

Appellant

Isak Bartolomeus Mostert N.O.

Appellant

Elizabeth Emma Mostert N.O.

Appellant

Hercules Christian van Heerden N.O.

Appellant

Willem Stephanus Conradie

Appellant

Philipus Jakobus Viljoen (Snr) N.O.

Respondent

Philipus Jakobus Viljoen (Jnr) N.O.

Respondent

Arnoldus Jacobus Stofberg N.O.

Respondent

George Johan Viljoen

Respondent

Minister of Environmental Affairs and Development Planning (Western Cape)

Respondent

Minister of Water Affairs and Sanitation

Respondent

Procedural Posture

Civil Appeal / Appeal From Interim Interdict Order

Legal Issues

  1. 1 Whether the appellants' abstraction of water via the upper furrow constituted an existing lawful water use under the National Water Act.
  2. 2 Whether the respondents were entitled to interim interdictory relief pending the final determination of the main action.
  3. 3 Whether the use of the furrow by the appellants prejudiced the respondents' rights to water from the Watervalstroom.

Ratio Decidendi

The court found that the probabilities strongly favoured the respondents' assertion that the upper furrow had not been used during the statutory window period required by the National Water Act. Therefore, the appellants' current abstraction of water via the furrow did not qualify as an existing lawful water use and was unlawful absent a licence. The respondents had a prima facie right to the water flowing down the Watervalstroom, and the diversion by the appellants caused irreparable harm by depriving them of water needed for irrigation. The balance of convenience favoured the respondents, as the interim order restored the status quo ante without prejudicing the appellants' established...

Court Disposition

Appeal dismissed with costs; interim interdict confirmed.

Orders

  • The appeal is dismissed with costs, such costs to be paid by the first to fifth appellants jointly and severally, the one paying, the others being absolved.
  • The interim interdict granted by the court a quo remains in force pending final determination of the main action.