Le Roux and Others v Burger and Others (249/2011) [2011] ZASCA 194 (15 November 2011)

Le Roux and Others v Burger and Others (249/2011) [2011] ZASCA 194 (15 November 2011)

The Supreme Court of Appeal held that the servitude is clear and unambiguous in its wording. It grants the appellants joint use of the servitude dam and its water, with equal division and joint responsibility for maintenance, but does not extend to a right to half of all water in the catchment area or to water in other dams. The background facts and context do not justify a departure from the ordinary meaning of the servitude's wording. The appellants' argument was a repetition of their submissions before the court a quo, and there was no legal or factual error in the lower court's judgment. The appeal was dismissed with costs, including the costs of two counsel.

Citation
[2011] ZASCA 194
Parties
Appellant: J P Le Roux NO; Appellant: R B Allen NO; Appellant: C A Hektor NO; Appellant: G M Cooke NO; Respondent: S W Burger (Snr); Respondent: W L Burger; Respondent: S W Burger (Jnr)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 November 2011
Case Number
249/2011
Procedural Posture
Civil Appeal / Appeal From the Western Cape High Court
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Harms, Van Heerden, Snyders, Malan, Majiedt
Legal Topics
Interpretation of Servitude, Water Rights, Division of Property
Land and Property Interpretation of Servitude Water Rights Division of Property

Case Brief

Summary, issues, holding and outcome

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Parties

J P Le Roux NO

Appellant

R B Allen NO

Appellant

C A Hektor NO

Appellant

G M Cooke NO

Appellant

S W Burger (Snr)

Respondent

W L Burger

Respondent

S W Burger (Jnr)

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape High Court

Legal Issues

  1. 1 Whether the servitude grants the appellants a right to half of all water in the natural catchment area or only to half of the water in the servitude dam.
  2. 2 Whether the respondents acted contrary to the servitude by diverting water to dams 4 and 5 before the servitude dam was full.
  3. 3 Whether background facts and context can alter the clear wording of the servitude.

Ratio Decidendi

The Supreme Court of Appeal held that the servitude is clear and unambiguous in its wording. It grants the appellants joint use of the servitude dam and its water, with equal division and joint responsibility for maintenance, but does not extend to a right to half of all water in the catchment area or to water in other dams. The background facts and context do not justify a departure from the ordinary meaning of the servitude's wording. The appellants' argument was a repetition of their submissions before the court a quo, and there was no legal or factual error in the lower court's judgment. The appeal was dismissed with costs, including the costs of two counsel.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.