Le Roux NO and Others v Botha NO and Others (5788/2016) [2018] ZAWCHC 86 (3 July 2018)

Le Roux NO and Others v Botha NO and Others (5788/2016) [2018] ZAWCHC 86 (3 July 2018)

The court held that the servitudes registered against Portion 3 in favour of the applicants' properties do not confer exclusive rights to abstract water at the designated weir point. Instead, the servitudes allow joint use by all affected property owners, including the respondents, and must be interpreted least onerously to restrict the rights of the servient owner as little as possible. The evidence did not establish that the respondents' construction and use of a replacement weir upstream prejudiced the applicants' lawful water entitlements or interfered with their exercise of servitutal rights. The respondents' water use was verified as lawful under the National Water Act, and the...

Citation
[2018] ZAWCHC 86
Parties
Applicant: Carel Wynand Le Roux N.O.; Applicant: Niel Fick N.O.; Applicant: Andronikus Griessel N.O.; Respondent: Theunis Christoffel Botha N.O.; Respondent: Theunis Christoffel Botha (Jnr) N.O.; Respondent: Hilde Botha N.O.; Respondent: Theunis Christoffel Botha; Respondent: Minister of Water and Sanitation; Respondent: MEC Environmental Affairs and Development Planning, Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 July 2018
Case Number
5788/2016
Procedural Posture
Civil Application / Final Judgment After Hearing on Merits
Outcome
Application dismissed with costs, except for wasted costs on 27 March 2018 which are to be borne by the first to third respondents.
Judges
A.G. Binns-Ward
Legal Topics
Praedial Servitude, Water Rights, National Water Act, Riparian Rights, Environmental Authorisation, Declaratory and Interdictory Relief
Land and Property Environmental Law Civil Procedure Praedial Servitude Water Rights National Water Act Riparian Rights Environmental Authorisation +1 more

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Parties

Carel Wynand Le Roux N.O.

Applicant

Niel Fick N.O.

Applicant

Andronikus Griessel N.O.

Applicant

Theunis Christoffel Botha N.O.

Respondent

Theunis Christoffel Botha (Jnr) N.O.

Respondent

Hilde Botha N.O.

Respondent

Theunis Christoffel Botha

Respondent

Minister of Water and Sanitation

Respondent

MEC Environmental Affairs and Development Planning, Western Cape

Respondent

Procedural Posture

Civil Application / Final Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the applicants, as trustees of the Goudyn Plase Trust, are entitled to exclusive servitutal rights to abstract water from the Wolwenkloof River at the designated weir point on Portion 3.
  2. 2 Whether the respondents have unlawfully interfered with the applicants' exercise of their registered servitutal rights.
  3. 3 Whether the servitudes registered against Portion 3 confer exclusive water abstraction rights or allow joint use by multiple property owners.

Ratio Decidendi

The court held that the servitudes registered against Portion 3 in favour of the applicants' properties do not confer exclusive rights to abstract water at the designated weir point. Instead, the servitudes allow joint use by all affected property owners, including the respondents, and must be interpreted least onerously to restrict the rights of the servient owner as little as possible. The evidence did not establish that the respondents' construction and use of a replacement weir upstream prejudiced the applicants' lawful water entitlements or interfered with their exercise of servitutal rights. The respondents' water use was verified as lawful under the National Water Act, and the...

Court Disposition

Application dismissed with costs, except for wasted costs on 27 March 2018 which are to be borne by the first to third respondents.

Orders

  • The application is dismissed.
  • Save as provided in paragraph 3, the applicants shall be liable for the respondents' costs of suit.