First Rand Ltd. t/a Rand Merchant Bank and Another v Scholtz NO and Others (373/06) [2006] ZASCA 99; [2006] SCA 98 (RSA); 2008 (2) SA 503 (SCA) ; [2007] 1 All SA 436 (SCA) (9 September 2006)

First Rand Ltd. t/a Rand Merchant Bank and Another v Scholtz NO and Others (373/06) [2006] ZASCA 99; [2006] SCA 98 (RSA); 2008 (2) SA 503 (SCA) ; [2007] 1 All SA 436 (SCA) (9 September 2006)

The Supreme Court of Appeal held that the respondents were not dispossessed of statutory water rights or quasi possessio thereof, but only of a contractual right to the conveyance of water through the pipeline, which expired on 31 December 2004. The right to use the pipeline was not an incident of possession or control of their properties but arose from contract. The mandement van spolie does not protect mere contractual rights, and the respondents' remedy lay in contract, not spoliation. Accordingly, the High Court's order was set aside and the application dismissed.

Citation
[2006] SCA 98 RSA
Parties
Appellant: First Rand Limited t/a Rand Merchant Bank; Appellant: Blyde River Water Utility Company (Pty) Ltd; Respondent: Diederick Arnoldus Scholtz NO; Respondent: Gert Jacobus Scholtz NO; Respondent: Petrus Paulus Roos Scholtz NO; Respondent: Pieter Christiaan Barwise
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 September 2006
Case Number
373/06
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against High Court Order; Oral Argument Heard; Supreme Court of Appeal Judgment Delivered.
Outcome
Leave to appeal granted; appeal upheld; High Court order set aside; application dismissed with costs, including costs of two counsel.
Judges
Harms, Farlam, Nugent, Combrinck, Malan
Legal Topics
Mandement Van Spolie, Statutory Water Rights, Quasi Possessio, Contractual Rights, Irrigation Infrastructure, Specific Performance
Civil Procedure Land and Property Mandement Van Spolie Statutory Water Rights Quasi Possessio Contractual Rights Irrigation Infrastructure Specific Performance

Case Brief

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Parties

First Rand Limited t/a Rand Merchant Bank

Appellant

Blyde River Water Utility Company (Pty) Ltd

Appellant

Diederick Arnoldus Scholtz NO

Respondent

Gert Jacobus Scholtz NO

Respondent

Petrus Paulus Roos Scholtz NO

Respondent

Pieter Christiaan Barwise

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against High Court Order; Oral Argument Heard; Supreme Court of Appeal Judgment Delivered.

Legal Issues

  1. 1 Whether the termination of water supply by the appellants constituted spoliation.
  2. 2 Whether the respondents' rights to water supply were incidents of possession or mere contractual rights.
  3. 3 Whether the mandement van spolie remedy is available for restoration of water supply under these circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents were not dispossessed of statutory water rights or quasi possessio thereof, but only of a contractual right to the conveyance of water through the pipeline, which expired on 31 December 2004. The right to use the pipeline was not an incident of possession or control of their properties but arose from contract. The mandement van spolie does not protect mere contractual rights, and the respondents' remedy lay in contract, not spoliation. Accordingly, the High Court's order was set aside and the application dismissed.

Court Disposition

Leave to appeal granted; appeal upheld; High Court order set aside; application dismissed with costs, including costs of two counsel.

Orders

  • The application for leave to appeal is granted and the appeal is upheld with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and replaced with: 'The application is dismissed with costs, including the costs of two counsel.'