Gerber and Another v Gerber and Others (907/09) [2009] ZAECPEHC 32 (9 July 2009)

Gerber and Another v Gerber and Others (907/09) [2009] ZAECPEHC 32 (9 July 2009)

The court found that the respondents unlawfully interfered with the applicants' statutory water rights by installing weirs and pipes in the Braam River, which cut off the water supply to the applicants' farm. The installations were not authorised by the Department of Water Affairs and Forestry and breached both the conditions of departmental authorisation and the provisions of the National Water Act. The applicants' right to undisturbed water use, as protected by the Water Use Certificate and recognised under the mandament van spolie, was infringed. The respondents failed to prove compliance with statutory or departmental authority, and their actions constituted spoliation. The applicants...

Citation
[2009] ZAECPEHC 32
Parties
Applicant: Frans Anthonie Gerber; Applicant: Louisa Petronella Gerber; Respondent: FF (Frans) Gerber; Respondent: SJ (Fanie) Gerber; Respondent: JDW (Danie) Gerber; Respondent: OJO (Olivier) Gerber
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
9 July 2009
Case Number
907/09
Procedural Posture
Urgent Application / Motion Court; Final Judgment After Transfer From Circuit Division
Outcome
Application granted; respondents ordered to remove obstructions and restore riverbed; interdict issued against further unlawful interference; costs awarded to applicants.
Judges
Revelas
Legal Topics
Water Rights, Mandament Van Spolie, National Water Act, Riparian Rights, Statutory Authorisation
Land and Property Environmental Law Water Rights Mandament Van Spolie National Water Act Riparian Rights Statutory Authorisation

Case Brief

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Parties

Frans Anthonie Gerber

Applicant

Louisa Petronella Gerber

Applicant

FF (Frans) Gerber

Respondent

SJ (Fanie) Gerber

Respondent

JDW (Danie) Gerber

Respondent

OJO (Olivier) Gerber

Respondent

Procedural Posture

Urgent Application / Motion Court; Final Judgment After Transfer From Circuit Division

Legal Issues

  1. 1 Whether the respondents unlawfully interfered with the applicants' statutory water rights and supply from the Braam River.
  2. 2 Whether the installation of weirs and pipes by the respondents constituted spoliation of the applicants' right to water.
  3. 3 Whether the applicants are entitled to relief under the mandament van spolie.

Ratio Decidendi

The court found that the respondents unlawfully interfered with the applicants' statutory water rights by installing weirs and pipes in the Braam River, which cut off the water supply to the applicants' farm. The installations were not authorised by the Department of Water Affairs and Forestry and breached both the conditions of departmental authorisation and the provisions of the National Water Act. The applicants' right to undisturbed water use, as protected by the Water Use Certificate and recognised under the mandament van spolie, was infringed. The respondents failed to prove compliance with statutory or departmental authority, and their actions constituted spoliation. The applicants...

Court Disposition

Application granted; respondents ordered to remove obstructions and restore riverbed; interdict issued against further unlawful interference; costs awarded to applicants.

Orders

  • The respondents are ordered to, within fourteen days of this judgment, remove the pipes and obstructions (sandbags, stone weir and sieve) mentioned in paragraph 5 of this judgment, and to restore the riverbed and its water course (through repairs thereto and utilizing the previous, existing water furrows) to the way...
  • If the respondents fail to comply with paragraph 1 of this order, the Sheriff or his Deputy shall remove the obstructions and the pipes, to restore the riverbed and its course to their original position and the respondents will be jointly and severally liable for the costs of such removal and/or repairs.