Hexvallei Besproeiingsraad and Another v Geldenhuys N.O and Others (307/07) [2008] ZASCA 69; [2008] 4 All SA 160 (SCA); 2009 (1) SA 547 (SCA) (30 May 2008)

Hexvallei Besproeiingsraad and Another v Geldenhuys N.O and Others (307/07) [2008] ZASCA 69; [2008] 4 All SA 160 (SCA); 2009 (1) SA 547 (SCA) (30 May 2008)

The Supreme Court of Appeal held that the respondents unlawfully diverted water from the Spekrivier to the Inverdoorn area in excess of the two kusek permitted by the 1960 court order. The respondents' actions were not justified by the deproclamation of the control area, as the ordinary rules of water law revived and did not entitle non-riparian owners to surplus water beyond the limits set by the order. The court found that the appellants' cause of action was correctly formulated and that supplementary evidence in reply did not create a new cause of action but merely cured a deficiency. The respondents' argument that the declaratory relief was vague was rejected, as the order was clear...

Citation
[2008] ZASCA 69
Parties
Appellant: Hexvallei Besproeiingsraad; Appellant: Worcester-Oos Watergebruikersvereniging; Respondent: Mattheus Lourens Geldenhuys NO; Respondent: Leon Johan Steyn NO; Respondent: Gideon Theodorus Geldenhuys NO; Respondent: Mattheus Lourens Geldenhuys; Respondent: Minister van Waterwese en Bosbou; Respondent: Richat Farm Holdings BK; Respondent: Inverdoorn Game Reserve BK
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 2008
Case Number
307/07
Procedural Posture
Civil Appeal / Appeal From the Western Cape High Court
Outcome
Appeal upheld. Declaratory order granted in favour of the appellants. Respondents ordered to pay costs, including costs of two counsel.
Judges
L T C Harms, Streicher, Navsa, Van Heerden, Cachalia
Legal Topics
Water Rights, Interdict, Public Streams, Ministerial Permits, Deproclamation of Control Area, Riparian Rights
Land and Property Civil Procedure Administrative Law Water Rights Interdict Public Streams Ministerial Permits Deproclamation of Control Area +1 more

Case Brief

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Parties

Hexvallei Besproeiingsraad

Appellant

Worcester-Oos Watergebruikersvereniging

Appellant

Mattheus Lourens Geldenhuys NO

Respondent

Leon Johan Steyn NO

Respondent

Gideon Theodorus Geldenhuys NO

Respondent

Mattheus Lourens Geldenhuys

Respondent

Minister van Waterwese en Bosbou

Respondent

Richat Farm Holdings BK

Respondent

Inverdoorn Game Reserve BK

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape High Court

Legal Issues

  1. 1 Whether the respondents unlawfully diverted water from the Spekrivier to non-riparian land contrary to a court order.
  2. 2 Whether the appellants are entitled to a declaratory order and interdict preventing such diversion.
  3. 3 Whether the deproclamation of the control area affected the water rights and permit limitations.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents unlawfully diverted water from the Spekrivier to the Inverdoorn area in excess of the two kusek permitted by the 1960 court order. The respondents' actions were not justified by the deproclamation of the control area, as the ordinary rules of water law revived and did not entitle non-riparian owners to surplus water beyond the limits set by the order. The court found that the appellants' cause of action was correctly formulated and that supplementary evidence in reply did not create a new cause of action but merely cured a deficiency. The respondents' argument that the declaratory relief was vague was rejected, as the order was clear...

Court Disposition

Appeal upheld. Declaratory order granted in favour of the appellants. Respondents ordered to pay costs, including costs of two counsel.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court below is set aside and replaced with: (a) It is declared that no water may be diverted to the Inverdoorn area that is taken from the Spekrivier by means of the adjustable right bank sluice. (b) The respondents are jointly and severally liable for the costs of the proceedings, including the...