Schutte v Five Lakes Farm CC and Others (18104/2014) [2018] ZAWCHC 132 (15 February 2018)

Schutte v Five Lakes Farm CC and Others (18104/2014) [2018] ZAWCHC 132 (15 February 2018)

The court found that the applicant established, on the evidence of Schutte, Kleynhans, and Oosthuizen, that water was extracted from the Duiwe River and led across Portion 211 to Portion 210 during the qualifying period, and that this use was authorised under the previous Water Act. The court held that it was not...

Source-derived case information.

Citation
[2018] ZAWCHC 132
Parties
Applicant: Eghardt Rupert Schutte; Respondent: Five Lakes Farm CC; Respondent: ABSA Bank Limited; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 February 2018
Case Number
18104/2014
Procedural Posture
Civil Application / Judgment After Referral to Oral Evidence
Judges
Van Staden
Legal Topics
Praedial Servitude, National Water Act, Existing Lawful Water Use, Onus of Proof, Compensation for Servitude
Land and Property Administrative Law Praedial Servitude National Water Act Existing Lawful Water Use Onus of Proof Compensation for Servitude

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Parties

Eghardt Rupert Schutte

Applicant

Five Lakes Farm CC

Respondent

ABSA Bank Limited

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Civil Application / Judgment After Referral to Oral Evidence

Legal Issues

  1. 1 What evidence is required to establish a praedial servitude under Section 127 of the National Water Act based on an existing lawful water use.
  2. 2 Whether the applicant proved that water was extracted from the Duiwe River and led across Portion 211 to Portion 210 during the qualifying period.
  3. 3 Whether the applicant must prove the exact volume of water extracted or led during the qualifying period.

Ratio Decidendi

The court found that the applicant established, on the evidence of Schutte, Kleynhans, and Oosthuizen, that water was extracted from the Duiwe River and led across Portion 211 to Portion 210 during the qualifying period, and that this use was authorised under the previous Water Act. The court held that it was not necessary for the applicant to prove the exact volume of water used, as the extent of an existing lawful water use is not limited to the specific volume extracted during the qualifying period. The court accepted the reliability of the applicant's witnesses over the respondent's, noting the corroboration and probabilities. The court dismissed the respondent's plea of non-joinder,...