Low NO and Others v South African National Parks and Another (16144/2007) [2008] ZAWCHC 333 (12 December 2008)

Low NO and Others v South African National Parks and Another (16144/2007) [2008] ZAWCHC 333 (12 December 2008)

The court found that the applicants' use of water from the servitude springs constituted an existing lawful water use under the National Water Act, as the servitude infrastructure was in operation during the qualifying period. The servitude's terms did not impose any explicit or implicit limitation on the volume of water, other than the capacity of the infrastructure itself. The applicants were entitled to repair and restore the infrastructure, including replacing pipes of equivalent diameter, and to access the servient tenement for maintenance. The court rejected the respondent's argument that the applicants' rights were limited to the infrastructure as it existed in 1961 or to the...

Citation
[2008] ZAWCHC 333
Parties
Applicant: William Wallace Low N.O.; Applicant: Jonathan William Trevor Mort N.O.; Applicant: Lancelot Peter Liddell N.O.; Applicant: Pontius Trading 22 (Pty) Limited; Respondent: South African National Parks; Respondent: Minister of Water Affairs and Forestry
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 December 2008
Case Number
16144/2007
Procedural Posture
Civil Application / Judgment After Opposed Application
Outcome
Application granted in favour of the applicants; declaratory and mandatory relief awarded; costs ordered against first respondent.
Judges
Bozalek
Legal Topics
Water Servitude, Existing Lawful Water Use, National Water Act, Servitude Enforcement, Environmental Regulation, Declaratory Relief
Land and Property Administrative Law Water Servitude Existing Lawful Water Use National Water Act Servitude Enforcement Environmental Regulation Declaratory Relief

Case Brief

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Parties

William Wallace Low N.O.

Applicant

Jonathan William Trevor Mort N.O.

Applicant

Lancelot Peter Liddell N.O.

Applicant

Pontius Trading 22 (Pty) Limited

Applicant

South African National Parks

Respondent

Minister of Water Affairs and Forestry

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the applicants' use of water from servitude springs constituted an existing lawful water use under section 32(1) of the National Water Act as at its commencement date.
  2. 2 Whether the applicants are entitled to continue using the water supply without a licence under section 22(1)(a)(ii) and section 34(1) of the National Water Act.
  3. 3 Whether the applicants are precluded by environmental regulations from repairing and restoring the servitude infrastructure or require written permission or an environmental impact assessment.

Ratio Decidendi

The court found that the applicants' use of water from the servitude springs constituted an existing lawful water use under the National Water Act, as the servitude infrastructure was in operation during the qualifying period. The servitude's terms did not impose any explicit or implicit limitation on the volume of water, other than the capacity of the infrastructure itself. The applicants were entitled to repair and restore the infrastructure, including replacing pipes of equivalent diameter, and to access the servient tenement for maintenance. The court rejected the respondent's argument that the applicants' rights were limited to the infrastructure as it existed in 1961 or to the...

Court Disposition

Application granted in favour of the applicants; declaratory and mandatory relief awarded; costs ordered against first respondent.

Orders

  • It is declared that the use by the late Geoffrey Vincent Hare of water from two servitude springs constituted an existing lawful water use under section 32(1) of the National Water Act as at the Act's commencement date.
  • It is declared that Geoffrey Vincent Hare was entitled, from the commencement date, to use the water supply without a licence and to continue with the existing lawful water use, subject to section 34(1).