Fourie v Strydom (78/1984) [1985] ZASCA 75 (10 September 1985)

Fourie v Strydom (78/1984) [1985] ZASCA 75 (10 September 1985)

The Supreme Court of Appeal held that the Water Court erred in its interpretation of the Melvill award and the subsequent notarial agreement. The award, read with the map, clearly allocated one turn of 24 hours to J and one turn of 18 hours to L per 31½ day cycle from the Welbedagtsloot. The respondent's reliance on later irrigation practices and topographical changes was found unreliable and irrelevant to the interpretation of the original award. The Court emphasized that only the award and map, as confirmed by the 1888 agreement, should guide the determination of water turns. Accordingly, the orders of the Water Court were set aside and replaced with declaratory relief reflecting the...

Citation
[1985] ZASCA 75
Parties
Appellant: Pieter Redelinghuys Fourie; Respondent: Johanna Elizabeth Strydom
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 September 1985
Case Number
78/1984
Procedural Posture
Civil Appeal / Appeal From Water Court Judgment
Outcome
Appeal upheld with costs, including costs of two counsel. Water Court orders set aside and replaced with declaratory relief in favour of appellant.
Judges
Kotze, Trengove, Botha, Van Heerden, Boshoff
Legal Topics
Water Rights, Interpretation of Awards, Declaratory Relief, Costs Award
Land and Property Civil Procedure Water Rights Interpretation of Awards Declaratory Relief Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Pieter Redelinghuys Fourie

Appellant

Johanna Elizabeth Strydom

Respondent

Procedural Posture

Civil Appeal / Appeal From Water Court Judgment

Legal Issues

  1. 1 Whether the allocation of water turns from the Welbedagtsloot under Melvill's 1879 award entitled both J and L to separate turns, or only L to two turns per cycle.
  2. 2 Whether the Water Court correctly interpreted the historical award and subsequent agreements regarding water turns.
  3. 3 Whether the respondent was entitled to two turns of 24 and 18 hours, or only one turn of 18 hours per cycle.

Ratio Decidendi

The Supreme Court of Appeal held that the Water Court erred in its interpretation of the Melvill award and the subsequent notarial agreement. The award, read with the map, clearly allocated one turn of 24 hours to J and one turn of 18 hours to L per 31½ day cycle from the Welbedagtsloot. The respondent's reliance on later irrigation practices and topographical changes was found unreliable and irrelevant to the interpretation of the original award. The Court emphasized that only the award and map, as confirmed by the 1888 agreement, should guide the determination of water turns. Accordingly, the orders of the Water Court were set aside and replaced with declaratory relief reflecting the...

Court Disposition

Appeal upheld with costs, including costs of two counsel. Water Court orders set aside and replaced with declaratory relief in favour of appellant.

Orders

  • It is declared that the cycle of water turns from the Welbedagtsloot on Welbedagt farm in the Oudtshoorn Division is 31½ days (of 24 hours each) according to the 1879 Award as amended by the 1888 Notarial Agreement.
  • It is declared that the owner(s) of portion 23 (formerly Lot L) of Welbedagt are entitled to one turn of 18 hours in each such cycle.