GJO Boerdery Ondernemings (Edms) Bpk v Stadsraad van Munisipaliteit van Bloemfontein (181/87) [1988] ZASCA 63 (27 May 1988)

GJO Boerdery Ondernemings (Edms) Bpk v Stadsraad van Munisipaliteit van Bloemfontein (181/87) [1988] ZASCA 63 (27 May 1988)

The Supreme Court of Appeal held that the servitudes of storage granted to the respondent did not extinguish the appellant's substantive water rights. The servitude agreements did not expressly or impliedly confer exclusive rights to the stored water on the respondent, nor did they deprive the appellant of its entitlement to extract water from the river, including water stored by the dam that reached its property. The general law does not support the respondent's claim to exclusive use of the stored water, and the appellant's rights remain intact except to the extent necessary for the proper exercise of the servitude. The lower court erred in granting the application to strike out the...

Citation
[1988] ZASCA 63
Parties
Appellant: GJO Boerdery Ondernemings (Edms) Beperk; Respondent: Stadsraad van Munisipaliteit van Bloemfontein
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 1988
Case Number
181/87
Procedural Posture
Civil Appeal / Appeal From the Orange Free State Provincial Division
Outcome
Appeal upheld with costs, including costs of the application for leave to appeal.
Judges
Rabie, Jansen, Hoexter, Grosskopf, Vivier
Legal Topics
Servitude of Storage, Water Rights, Expropriation, Dam Construction, Compensation for Expropriation
Land and Property Civil Procedure Servitude of Storage Water Rights Expropriation Dam Construction Compensation for Expropriation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

GJO Boerdery Ondernemings (Edms) Beperk

Appellant

Stadsraad van Munisipaliteit van Bloemfontein

Respondent

Procedural Posture

Civil Appeal / Appeal From the Orange Free State Provincial Division

Legal Issues

  1. 1 Whether the servitudes of storage granted to the respondent extinguished the appellant's substantive water rights.
  2. 2 Whether the appellant is entitled to extract water from the dammed river on his property.
  3. 3 Whether the respondent's exclusive use of the stored water is supported by the servitude agreements or general law.

Ratio Decidendi

The Supreme Court of Appeal held that the servitudes of storage granted to the respondent did not extinguish the appellant's substantive water rights. The servitude agreements did not expressly or impliedly confer exclusive rights to the stored water on the respondent, nor did they deprive the appellant of its entitlement to extract water from the river, including water stored by the dam that reached its property. The general law does not support the respondent's claim to exclusive use of the stored water, and the appellant's rights remain intact except to the extent necessary for the proper exercise of the servitude. The lower court erred in granting the application to strike out the...

Court Disposition

Appeal upheld with costs, including costs of the application for leave to appeal.

Orders

  • The order of the court a quo is set aside and replaced with: 'The application to strike out paragraph 3.6 of the particulars of claim is dismissed with costs.'