Prosch and Others v Impala Water Users Association (428/05) [2006] ZASCA 171 (28 September 2006)

Prosch and Others v Impala Water Users Association (428/05) [2006] ZASCA 171 (28 September 2006)

The Supreme Court of Appeal held that the appellants' defences based on the alleged failure to produce a proper assessment roll were unfounded, as compliance with clause 18 of the constitution was not a prerequisite for liability or for instituting proceedings to recover charges. The respondent was entitled to raise water use charges to pay debts lawfully incurred, including those arising from the dam financing component and the term loan agreement with First Rand Bank Ltd, which had been ratified by the management committee. The power to assess charges extended to anticipated future expenditure, not only existing debts. The appellants' claim for set-off based on alleged damages for...

Citation
[2006] ZASCA 171
Parties
Appellant: Godfrey Paul Prosch; Appellant: Gabriel Johannes Jacobus Le Roux; Appellant: Noremac Sugar Estates (Pty) Ltd; Appellant: Marie Elizabeth Adriana Crouse NO; Appellant: Hendrik Petrus Boshoff NO; Appellant: Jacobus Ernst Potgieter Boshoff; Respondent: Impala Water Users Association
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 2006
Case Number
428/05
Procedural Posture
Civil Appeal / Appeal From the Natal Provincial Division of the High Court; Judgment and Orders Challenged; Cross Appeal on Costs
Outcome
Appeals dismissed with costs; respondent's cross-appeal on costs upheld.
Judges
Farlam, Brand, Lewis, Ponnan, Theron
Legal Topics
Water Use Charges, National Water Act, Constitution of Water User Association, Assessment Roll Requirements, Set Off of Liquidated Claims, Dam Financing Component
Land and Property Civil Procedure Commercial and Corporate Water Use Charges National Water Act Constitution of Water User Association Assessment Roll Requirements Set Off of Liquidated Claims +1 more

Case Brief

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Parties

Godfrey Paul Prosch

Appellant

Gabriel Johannes Jacobus Le Roux

Appellant

Noremac Sugar Estates (Pty) Ltd

Appellant

Marie Elizabeth Adriana Crouse NO

Appellant

Hendrik Petrus Boshoff NO

Appellant

Jacobus Ernst Potgieter Boshoff

Appellant

Impala Water Users Association

Respondent

Procedural Posture

Civil Appeal / Appeal From the Natal Provincial Division of the High Court; Judgment and Orders Challenged; Cross Appeal on Costs

Legal Issues

  1. 1 Whether a properly compiled assessment roll is a prerequisite to liability for water use charges under the respondent's constitution.
  2. 2 Whether the respondent was empowered to assess and recover water use charges to pay debts legally due, including those arising from dam financing.
  3. 3 Whether the term loan agreement with First Rand Bank Ltd was valid and whether charges could be raised to service it.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants' defences based on the alleged failure to produce a proper assessment roll were unfounded, as compliance with clause 18 of the constitution was not a prerequisite for liability or for instituting proceedings to recover charges. The respondent was entitled to raise water use charges to pay debts lawfully incurred, including those arising from the dam financing component and the term loan agreement with First Rand Bank Ltd, which had been ratified by the management committee. The power to assess charges extended to anticipated future expenditure, not only existing debts. The appellants' claim for set-off based on alleged damages for...

Court Disposition

Appeals dismissed with costs; respondent's cross-appeal on costs upheld.

Orders

  • The appeals by the appellants against the judgment of the court a quo in NPD case nos 1515/2005, 1516/2005, 1517/2005, 1518/2005 and 1519/2005 are dismissed with costs, including those occasioned by the use of two counsel.
  • The appeals against the order refusing security for costs are dismissed with costs, including those occasioned by the use of two counsel.