Le Roux NO and Others v Botha NO and Others (427/19) [2020] ZASCA 67 (17 June 2020)

Le Roux NO and Others v Botha NO and Others (427/19) [2020] ZASCA 67 (17 June 2020)

The Supreme Court of Appeal found that the dispute between the parties regarding water servitudes and the construction of new waterworks was resolved by a negotiated settlement. The parties agreed to a detailed order regulating the abstraction and division of water, installation of mechanisms, regularisation of the new abstraction point, and amendment of servitudes as necessary. The court held that neither party achieved clear and substantial success and that the circumstances did not warrant a costs order in favour of either side. The agreed order was made an order of court, and the previous order of the High Court was set aside. The court emphasised the importance of neighbourly...

Citation
[2020] ZASCA 67
Parties
Appellant: Carel Wynand Le Roux NO; Appellant: Niel Fick NO; Appellant: Andronikus Griessel NO; Respondent: Theunis Christoffel Botha NO; Respondent: Theunis Christoffel Botha (JNR) NO; Respondent: Hilde Botha NO; Respondent: Theunis Christoffel Botha; Respondent: Minister of Water and Sanitation; Respondent: MEC Environmental Affairs and Development Planning, Western Cape
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 June 2020
Case Number
427/19
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court
Outcome
Appeal upheld; order of the court below set aside and replaced by the agreed order between the parties. No order as to costs in either the application or the appeal.
Judges
Navsa, Mocumie, Makgoka, Ledwaba, Gorven
Legal Topics
Servitude of Aquaehaustus, Servitude of Aquaeductus, Water Rights, Environmental Authorisation, Declaratory Relief, Costs Order
Land and Property Environmental Law Civil Procedure Servitude of Aquaehaustus Servitude of Aquaeductus Water Rights Environmental Authorisation Declaratory Relief +1 more

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Parties

Carel Wynand Le Roux NO

Appellant

Niel Fick NO

Appellant

Andronikus Griessel NO

Appellant

Theunis Christoffel Botha NO

Respondent

Theunis Christoffel Botha (JNR) NO

Respondent

Hilde Botha NO

Respondent

Theunis Christoffel Botha

Respondent

Minister of Water and Sanitation

Respondent

MEC Environmental Affairs and Development Planning, Western Cape

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court

Legal Issues

  1. 1 Whether the Goudyn Plase Trust is entitled to abstract water by means of a weir at the location indicated in the servitudes or at the site of the original weir prior to the flood of 15 November 2013.
  2. 2 Whether the Botha Trust and Mr Botha are entitled to draw water from the servitude weir and whether the new weir and waterworks constructed after the flood are lawful.
  3. 3 Whether the Botha Trust and Mr Botha should be interdicted from interfering with the Goudyn Trust's servitudal rights.

Ratio Decidendi

The Supreme Court of Appeal found that the dispute between the parties regarding water servitudes and the construction of new waterworks was resolved by a negotiated settlement. The parties agreed to a detailed order regulating the abstraction and division of water, installation of mechanisms, regularisation of the new abstraction point, and amendment of servitudes as necessary. The court held that neither party achieved clear and substantial success and that the circumstances did not warrant a costs order in favour of either side. The agreed order was made an order of court, and the previous order of the High Court was set aside. The court emphasised the importance of neighbourly...

Court Disposition

Appeal upheld; order of the court below set aside and replaced by the agreed order between the parties. No order as to costs in either the application or the appeal.

Orders

  • The order of the court below is set aside and replaced by the detailed consent order regulating water abstraction, division, installation of mechanisms, regularisation, and amendment of servitudes as agreed between the parties.
  • Each party shall bear its own costs in both the application and the appeal.