Transvaal Canoe Union and Another v Garbett and Another (3/92) [1993] ZASCA 114; 1993 (4) SA 829 (AD); [1993] 2 All SA 601 (A) (6 September 1993)

Transvaal Canoe Union and Another v Garbett and Another (3/92) [1993] ZASCA 114; 1993 (4) SA 829 (AD); [1993] 2 All SA 601 (A) (6 September 1993)

The Supreme Court of Appeal held that, under South African common law, the public's right to use a public river does not include an unrestricted right to portage canoes along privately owned riverbanks. Portage is not a necessary incident of navigation on a public river, especially where the activity is competitive canoe racing rather than mere recreational boating. The evidence showed that the portage sought by appellants involved significant encroachment and potential damage to private property, and was not confined to a reasonable or defined area. The relief sought was overly broad and not supported by the facts. The Court found that public rights must encroach as little as possible on...

Citation
[1993] ZASCA 114
Parties
Appellant: Transvaal Canoe Union; Appellant: Victoria Lake Club; Respondent: Robert Garbett; Respondent: Ithumaleng CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
6 September 1993
Case Number
3/92
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal dismissed with costs.
Judges
Corbett, Vivier, F H Grosskopf, Howie, Van Coller
Legal Topics
Riparian Rights, Public Use of Rivers, Servitude, Portage, Civiliter Modo
Land and Property Civil Procedure Riparian Rights Public Use of Rivers Servitude Portage Civiliter Modo

Case Brief

Summary, issues, holding and outcome

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Parties

Transvaal Canoe Union

Appellant

Victoria Lake Club

Appellant

Robert Garbett

Respondent

Ithumaleng CC

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether members of the public have a common law right to portage canoes along the banks of a public river flowing over privately owned land.
  2. 2 Whether portage is a necessary incident of the right to use a public river for canoeing.
  3. 3 Whether the relief sought by the appellants was reasonable and sufficiently defined.

Ratio Decidendi

The Supreme Court of Appeal held that, under South African common law, the public's right to use a public river does not include an unrestricted right to portage canoes along privately owned riverbanks. Portage is not a necessary incident of navigation on a public river, especially where the activity is competitive canoe racing rather than mere recreational boating. The evidence showed that the portage sought by appellants involved significant encroachment and potential damage to private property, and was not confined to a reasonable or defined area. The relief sought was overly broad and not supported by the facts. The Court found that public rights must encroach as little as possible on...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.