Impala Water Users Association v Lourens NO and Others (087/2003) [2004] ZASCA 15; 2008 (2) SA 495 (SCA) ; [2004] 2 All SA 476 (SCA) (26 March 2004)

Impala Water Users Association v Lourens NO and Others (087/2003) [2004] ZASCA 15; 2008 (2) SA 495 (SCA) ; [2004] 2 All SA 476 (SCA) (26 March 2004)

The Supreme Court of Appeal held that the respondents' rights to water, originating from statutory entitlements under the previous Water Act and continued under the National Water Act, were capable of protection by the mandament van spolie. The appellant's reliance on the Xsinet case was misplaced, as the rights in question were not merely contractual but linked to the possession and use of land. The court affirmed that the onus rested on the appellant to prove that the portion of the water use charges withheld by the respondents was legally due before restricting water supply under section 59(3) of the National Water Act. As the legality of the disputed charge was subject to pending...

Citation
[2004] ZASCA 15
Parties
Appellant: Impala Water Users Association; Respondent: Piet Erasmus Lourens N.O and 20 Other Applicants
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 2004
Case Number
087/2003
Procedural Posture
Civil Appeal / Appeal From High Court Spoliation Order
Outcome
Appeal dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
Farlam, Howie, Brand, Jones, Van Heerden
Legal Topics
Mandament Van Spolie, Water Rights, Onus of Proof, Statutory Interpretation, Self Help, Constitutional Right to Access Court
Land and Property Civil Procedure Mandament Van Spolie Water Rights Onus of Proof Statutory Interpretation Self Help Constitutional Right to Access Court

Case Brief

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Parties

Impala Water Users Association

Appellant

Piet Erasmus Lourens N.O and 20 Other Applicants

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Spoliation Order

Legal Issues

  1. 1 Whether the respondents' rights to water are capable of protection by the mandament van spolie.
  2. 2 Whether the appellant's restriction of water supply was lawful under section 59(3) of the National Water Act 36 of 1998.
  3. 3 On whom does the onus rest to prove that the outstanding water use charges were legally payable.

Ratio Decidendi

The Supreme Court of Appeal held that the respondents' rights to water, originating from statutory entitlements under the previous Water Act and continued under the National Water Act, were capable of protection by the mandament van spolie. The appellant's reliance on the Xsinet case was misplaced, as the rights in question were not merely contractual but linked to the possession and use of land. The court affirmed that the onus rested on the appellant to prove that the portion of the water use charges withheld by the respondents was legally due before restricting water supply under section 59(3) of the National Water Act. As the legality of the disputed charge was subject to pending...

Court Disposition

Appeal dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The appeal is dismissed with costs, including those occasioned by the employment of two counsel.