Van Staden N.O and Another v Raath and Others (1232/04) [2005] ZANWHC 50 (7 July 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 1232/04

In the matter between:

DANIEL VAN STADEN NO 1ST

APPLICANT

MAGDALENA JOHANNA VAN STADEN NO 2ND

APPLICANT

AND

THELMARI RAATH 1ST

RESPONDENT

WILLEM STERNBERG VAN STADEN 2ND

RESPONDENT

MARTHINUS RAATH BOERDERY BK 3RD

RESPONDENT

BARTHOLOMEUS STEPHANUS VAN STADEN 4TH

RESPONDENT

JUDGMENT

TLHAPI AJ:

[1] INTRODUCTION:

The Applicants have approached this Court for relief in the following terms as set out in the Notice of Motion:

“1. Dat die Eerste en Tweede Respondente heirmee verbied word om op enige wyse inbreuk te maak op die Trust se reg tot waterleiding oor die plaas bekend as die Resterende Gedeelte van Gedeelte 4 van die Plaas Kortfontein 461, Registrasie Gedeelte J.P., Noordwes Provinsie, distrik Koster (“Gedeelte 4”) asook oor die plaas bekend as Gedeelte 37 (ʼn Gedeelte van Gedeelte 21) van die plaas Kortfontein 461, Registrasie Afdeling J.P., Noordwes Provinsie, distrik Koster (“Gedeelte 37”) en dat die Eerste en Tweede Respondente meer spesifiek verbied word om:

1.1 op enige wyse hoegenaamd persoonlike of middelik deur hulle werknemers en/of verteenwoordigers in te meng met die natuurlike vloei van die water vanaf en oor Gedeeltes 4 en 37 waarop die Trust geregtig is welke water in die bestaande watervore en-pype oor gemelde gedeelte gelei word na die Trust se eiendom geleë te die plaas bekend as die Resterende Gedeelte van gedeelte 21 (ʼn gedeelte van Gedeelte 4) van die plaas Kortfontein 461, Registrasie Afdeling J.P., Noordwes Provinsie, distrik Koster asook die plaas bekend as Gedeelte 27 (ʼn gedeelte van Gedeelte 14) van die plaas Kortfontein 461, Registrasie Afdeling J.P., Noordwes Provinsie, distrik Koster (hierna gesamentlik verwys as “die Trust se eiendom”); en

1.2 op enige wyse hoegenaamd persoonlike of middelik deur hulle werknemers en/of verteenwoordigers inbreuk te maak op die uitoefening van die Trust se redelike reg van toegang tot Gedeeltes 4 en 37 ten einde die fontein bekend as Grootfontein en die bestaande watervore en-pype wat die water oor gemelde gedeeltes na die Trust se eiendom lei, skoon te maak en te onderhou, welke redelike uitoefening van die betrokke reg ondermeer die skoonmaak en onderhoud deur verteenwoordigers en werknemers van die Trust mag behels.

2. Dat die Derde en Vierde Respondente hiermee gelas word om alle redelike stappe te neem ten einde toe te sien dat die Eerste en Tweede Respondente die bepalings van bede 1(waarby ingesluit bedes 1.1 en 1.2) nakom.

3. Dat die Eerste en Tweede Respondente gelas word om die koste van hierdie aansoek gesamentlik en afsonderlik op die skaal van prokureur en kliënt te betaal alternatiewelik dat die Respondente gesamentlik en afsonderlik gelas word om die koste van hierdie aansoek op die skaal van prokureur en kliënt te betaal indien the aansoek deur die Derde en Vierde Respondente geopponeer word”.

The Applicants, Daniel and Magdalena Johanna van Staden, appear in their capacities as Trustees of the Agape Trust, which is the registered owner of Portions 21 (a portion of Portion 4) and Portion 27 (a portion of Portion 14) of the farm Kortfontein 461, Registration Division JP, in the district of Koster. For convenience both farms will be referred to as the “Trust Farm”.

The First Respondent, Thelmari Raath, is a resident of Portion 37 (a portion of Portion 21) of the farm Kortfontein 461, Registration Division JP in the district of Koster. She lives on this farm with the Second Respondent, Willem Sternberg van Staden, who is the brother of the First Applicant. Portion 37 is situated between Portion 4 and Portion 21.

The Third Respondent, Marthinus Raath Boerdery BK, is a duly registered, Closed Corporation, which is the registered owner of Portion 37. The only member, one Marthinus Johannes Raath, is the former spouse of the First Respondent.

The Fourth Respondent, Bartholomeus Stephanus van Staden, a widow, is the registered owner of Portion 4 of the Farm Kortfontein 461, Registration Division JP, in the district of Koster and she is the mother of the First Applicant and the Second Respondent. The spring and old boreholes (next to the spring), known as Grootfontein, is situated on Portion 4 and it is from this source that water is drawn in terms of the servitude.

[2] Factual Background

The following facts and allegations appear on the papers:

2.1. It is common cause between the parties that the right of servitude and related conditions are registered against the title deeds of Portion 4 (the dominant tenement) and Portion 37 and the Trust Farm (servient tenements). There is also an entitlement to a certain share of water flowing from the spring and two boreholes originating on Portion 4. The dominant tenement is entitled to a two-thirds share and the servient tenements each to a sixth share. Further, the interested parties are responsible pro rata for maintaining the spring and furrows through which the water flows.

2.2 The Applicants obtained a licence for the use and storage of water from the spring for agricultural irrigation on the Trust Farm, in terms of Sections 21(a) and (b) of the Water Act No.36 of 1998. This licence was issued on the 27 October 2003 and it entitles them to 24800 cubic metres of water per annum from the spring Grootfontein, commencing the 1st April 2002. Photographs annexed to the application were used to show the origin of the spring and the course through which the water flows. These photographs show that water is led partly through concrete furrows and in some part through furrows consisting of ground and gravel. As at the launch of this application no water was flowing to the Trust Farm.

The sixth share entitlement to water on Portion 37 emanates from the servitude. No licence has been obtained for use and storage of water in a dam in terms of the Water Act. The First Respondent claims that she enjoys a right of usufruct over Portion 37 till the youngest of her children reaches eighteen years of age. The usufruct is a result of a divorce settlement agreement reached with Mr Raath who is the only member of the closed corporation which owns Portion 37. The usufruct is not registered.

The Second Respondent obtained a licence in terms of Section 21 (a) of the Water Act to take 22580 cubic metres of water from the spring Grootfontein for use on Portion 4 for agricultural irrigation. His licence was issued on the 18 May 2004. It would seem that the Applicants were not aware when the Application was launched that such licence had already been issued.

2.3 During July 2002, the Second Respondent was accused of impeding the flow of water to the Trust Farm to such a degree that there was insufficient water for the crops and grazing which conduct was prejudicial to farming and had caused financial loss to the Applicants. A letter was consequently addressed to the Second Respondent by the First Applicant’s Attorney. Although the problem continued, the First Applicant refrained from approaching the Court for relief at the time because he believed that he could resolve the problem with his brother. These efforts failed and due to the Second Respondent’s persistent infringement another letter dated the 9th October 2003 followed. On the 15th October 2003 the First Applicant, Second Respondent and their respective attorneys met in an attempt to resolve the dispute. The Second Respondent denied any wrongdoing and no settlement could be reached.

2.4 In a letter dated 13 November 2003 the Second Respondent informed the Applicants that they could exercise their access rights for the purpose of maintenance and that he had applied for a licence to draw water from the spring of Portion 4 in his name. He further suggested that the water drawn from the spring be shared on the basis that he be entitled to ⠔ and that the remaining ⠓ be divided between the Applicants and the First Respondent. In a letter of the 26th of November 2003 the First Applicant indicated that no other person besides the Trust, which had a licence in terms of the Water Act, was entitled to draw water from the spring. At that time the Second Respondent was made aware of the fact that water was still not reaching the Trust Farm and that it had been observed at that point that water only flowed from Portion 4 up to Portion 37.

2.5 The First Applicant suggested that the water be diverted so as not to flow through Portion 37. In a letter of the 13th of November 2003 the Second Respondent informed him that the Department of Water Affairs had been approached and that such authorization would not be granted. The Second Respondent maintained further that drought may have been the reason for the lack of water to the Trust Farm and also accused the Applicants of impeding the flow of water to Portion 37.

2.6 On the 12th of January 2004 an inspection in loco was conducted. The First Applicant, the Second Respondent and their respective Attorneys attended. A black pipe was observed through which water was being led from a dam on Portion 4 to another dam on Portion 37. The pipe is shown on Photographs marked “DSV15A” and another photograph shows that the dam on Portion 37 was full of water. At this inspection the First Respondent informed the First Applicant that he was not entitled to access Portion 37 to conduct an investigation and consequently the Applicants believed that the First and Second Respondents were colluding with each other to frustrate the right of water to the Trust Farm.

2.7 Mr Raath, the only member of the Closed Corporation, appeared at the inspection and was informed of the Applicants rights and especially the right of access. He did not comment. Although the Applicants did not have problems with the Third and Fourth Respondents he maintained that they were both aware of the problems they was experiencing, but none of them had offered to assist even though they have control over their respective properties, Portions 37 and Portion 4.

2.8 On the 16th of March 2004 the First Applicant sent his sons to investigate why the water was not flowing. They were allowed to enter Portion 37 by an employee of the First and/or Second Respondent, known as Lucas. On the 31st of March 2004 the First Applicant received a letter from the Attorneys of the First and Second Respondents stating that the Water Act did not make provision that the rights of the Trust be exercised by its representatives and that such representatives were not allowed to enter Portion 4 and 37. According to the First Applicant it was impossible for him and the Second Applicant to personally attend to the maintenance of the furrows and water pipes and the prevention of his representatives to perform this function presented problems to the exercise of the rights of the Trust.

2.9 On the 22nd of April 2004 the First Applicant, his son and other employees proceeded to clean the furrows from the Trust Farm through Portion 37 right up to the source. Photographs were taken of the furrows on Portion 37 where it was overgrown with vegetation and also of the furrow that lead water to the Trust land, and it is from this furrow that they extracted burnt debris. This cleaning-up process was conducted in the presence of Lucas and all the objects which may have contributed to the disturbance of the flow of water were removed. According to the First Applicant, the flow of water to the Trust Farm was strong thereafter. On the same day at about 7h00 the First Applicant went to check the furrows and the flow of water had stopped. On the morning of the 23rd of April 2004 on his way to work he observed that the water was still not flowing. The situation was still the same when he returned later during the day. On investigation and in the company of his sons they came across a pipe, leading water onto the garden of the First Respondent.

2.10 They also found Lucas stuffing the pipe which leads water to the Trust Farm with leaves and other debris. Lucas informed the First Applicant in the presence of his companions that he was instructed to do so by the Second Respondent and that he would not be remunerated by the First and Second Respondents if he failed to do so. Lucas came to the Trust Farm later that day to inform the First Applicant of his position. He asked to be taken to the Police and was dropped off by the Applicants sons at the Police Station. This is denied by the First and Second Respondents and Lucas.

2.11 On the same day on his return from doing business in Rustenburg he was informed by his sons that they had gone to check on the flow of water and had come across the First Respondent. She swore and uttered defamatory words at them. She also assaulted his son Jaco by hitting him on the chest and slapping him on the face. She further sprayed his other son Hendrik with insecticide in the eyes and exposed herself by raising her blouse. The incident was reported to the police.

2.12 The First Applicant was not aware of any reasons why the First and Second Respondents were engaging in such wrongful conduct. According to him the First and Second Respondents did not possess a licence in terms of the Water Affairs Act authorizing them to draw water from the source for the purpose of agriculture or the right to store such water in a dam on Portion 4 or to lead water from such dam to Portion 37 by means of a pipe, to the prejudice of the Trust Farm. The water stored in a dam on Portion 4 was allowed to overflow into the road when full. This conduct forced the First Applicant to sink two boreholes at a cost of R25 000.00 to supplement his water resources. A hundred trees had died and his stock was suffering due to lack of sufficient water. It was further impossible for them to quantify the exact losses suffered due to the continued wrongful conduct of the First and Second Respondents. According to the First Applicant good rains had fallen in the area from January 2004 and the flow of water from the spring was strong and that there was no reason why the Trust Farm was not receiving water unless the flow was impeded.

2.13 The First Respondent denied any wrong doing on her part or on that of the Second Respondent and/or their employees. She states that a certain Mr J Herselman from the Department of Water Affairs and Forestry conducted an inspection in loco. He had confirmed to the Applicants and to the First and Second Respondents their respective shares as established by the servitude. She states that the usufruct entitled her to a sixth share of the water from the spring. The First Respondent leases a part of Portion 37 to the fourth Respondent whom it is alleged has the right to do as she pleases with her two-thirds share of water of Portion 4.

2.14 According to her the Applicants have not acted in a reasonable manner in exercising their rights to access Portion 37 and Portion 4. They had also neglected to comply with their pro rata responsibility to maintain the spring and furrows. The First Applicant is accused of having used bricks and corrugated iron to secure more than his legitimate share of water. These allegations were not substantiated.

2.15 The First Respondent believes that the extreme drought experienced in the area or the type of surface through which the water flows and the extensive farming projects could be the probable reason why no water is flowing to the Trust Farm. This is denied by the Applicants.

2.16 Further, according to her, the black pipe which leads water from the dam on Portion 4 to the dam of Portion 37 does not in any way disturb the rights of the Trust farm. According to her the Second Respondent is entitled the two-thirds share of the water of Portion 4 and has the right to use it to his benefit. He is consequently entitled to lead the flow from Portion 4 to Portion 37 and this was how the water needs on Portion 37 are replenished.

2.17 The First Respondent requires the Applicants to give reasonable notification when entering Portion 37 and to desist from intimidating her and her children which incident occurred on the 23 April 2004. The First Respondent states that the Fourth Respondent was unjustifiably joined because she has no control over Portion 4 which is being managed, controlled and cultivated by the Second Respondent.

2.19 The First Applicant consulted Mr Herselman on the 22nd of November 2004. He denied attending the offices of Mr Pitzer in Brakpan to sign the confirmatory affidavit annexed to the papers of the Respondents. He was in Hartebeespoort and he faxed the affidavit to the attorney’s office in Brakpan and same was not commissioned in his presence. The First Applicant wants this affidavit to be rejected.

2.20 The First Applicant states that the First Respondent does not by reason of her usufruct alone have a right to receive and to use the water from Portion 4 without complying with the Water Act. The spring is in a position to regularly supply water to all its rightful users and that the supply to the Trust Farm was not conditional on availability at the instance of the Respondents. If drought was the reason for the lack of water the First and Second Respondents would not have been able to fill their dams.

According to the First Applicant, the Second Respondent’s licence entitles him to 22580 cubic meters of water for use on Portion 4 per annum, consequently neither he nor the First Respondent are entitled to cause water to be drawn from Portion 4 for use on Portion 37, nor are they allowed to store water in a dam.

2.21 On the 20th of October 2004 in the presence of the First Applicant Mr Herselman carried out an inspection of the furrows through which water was led from Portion 4 to the Trust Farm and made certain observations confirmed in Herselman’s confirmatory affidavit:

21.1 that a portion of the furrow is damaged because of the trample due to cattle crossing;

21.2 that the two thirds of the water on Portion 4 is not used in full because it is wasted by broken water pipes that lead water to the dam of Portion 4;

21.3 the third share division on Portion was unacceptable because it benefited Portion 37 more than it did the Trust Farm;

21.4 water flowing to the Trust Farm was, not clean and this has impeded the flow of water to the Trust Farm.

21.5 that no water was flowing to the Trust Farm.

2.22 Certain Points in limine were raised on behalf of the Respondents.

[3] POINTS IN LIMINE:

I will first deal with the points in limine raised by Ms Munro on behalf of the Respondents. She submits that the Applicants failed to make out a prima facie case in the founding affidavit, further, that the confirmatory affidavit of Mr Herselman annexed to the replying affidavit of the Applicants raised fresh matter and that such matter should be struck out.

3.1 In Poisedon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co. (Durban) (Pty) Ltd 1980 (1) 313 (D & CLD) at 315 E-F, the court in considering costs had to determine the same issues raised in this instance. In that matter the founding affidavit was found to be fatally defective and the Court enunciated the correct approach which had been adopted in Bayat & Others v Hansa & Another 1955(3) 547 SA (N) at 553C-E where it said:

“an applicant for relief must (save in exceptional cases) make his case and produce all the evidence he desires to use in support of it, in his affidavits filed with the notice of motion. . . . .and is not permitted to supplement it in his replying affidavits (the purpose of which is to reply to averments made by the respondent in his answering affidavits), still less make a new case in his replying affidavits.”

3.2 In Registrar of Insurance v Johannesburg Insurance Co Ltd (1) 1962 (4) 546 SA (W) 547F, exceptional circumstances were found to exist where the court “for the sake of facilitating litigation and in the interests of justice” allowed the Applicant to bring in fresh matter which could not realistically have been in his possession at the launching of his application. Further, the court had to have regard to the complexity of the matter and the prejudice to the parties if the rules of court were not strictly observed.

3.3 This application was launched on the 6th of October 2004 and served on the Respondents on the 13th of October 2004. The answering affidavits were in turn served on the 9th of November 2004 and the replying affidavit served on the 30th of November 2004. Mr Herselman in his confirmatory affidavit annexed to the replying affidavit states that he attended an inspection in loco of the three Portions in the presence of the First Applicant on the 20th of October 2004 and made certain observations. Save for the observations made in paragraphs 2.5 of his affidavit none of the others are canvassed in the launching affidavits. I have also looked at the answering affidavit and do not find that such fresh matter was in response to similar issues raised by the Respondents with Mr Herselman. In my view, these new facts are not complex and are not such facts which could not have been realistically secured by the Applicants before launching this application. They should therefore be struck out.

3.4 Having said this, and having regard to the founding affidavit alone, I am of the view that irrespective of the matter which has been struck out, the Applicants have made sufficient averments to make out a prima facie case which I intend to deal with herein.

3.5 It is also submitted on behalf of the Respondents that various disputes of fact have arisen which cannot be resolved on the papers and that this application should be dismissed or referred for oral evidence. In Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) 1155 SA (T) at 1162 the Court states that an applicant who proceeds by motion is said to run the risk of disputes of facts arising. In these circumstances the court is allowed to exercise its discretion of either calling viva voce evidence on particular issues or of dismissing the case. In the Room Hire Company case, supra, the following was said:

“the application may be dismissed with costs, particularly when the applicant should have realized when launching his application that a serious dispute of fact was bound to develop.”

In this case the Court is said to be vested with the duty to establish whether such dispute of facts indeed exist and whether the matter could not be determined on the papers without the need to refer the matter for oral evidence.

3.6 Mr Grundlingh submitted that the Applicants have made out a case and are entitled to relief unless the Court is of the view that certain issues had to be referred for oral evidence.

3.7 In Soffiantini v Mould 1956 (4) 150 SA (ECLD) at 154G, the Court remarked that:

“It is necessary to make a robust, common sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it is difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.”

I am of the view, taking the above into consideration, that this matter can be decided on the papers.

[4] THE ISSUES BEFORE THIS COURT:

4.1 The Applicants’ case is that they are entitled to a sixth share of water emanating from the spring known as Grootfontein in accordance with the servitude registered against the title to the Trust Farm on the 25th of September 1998. They further obtained a licence in terms of which they were authorized to take 24800 cubic metres of water per annum from the spring, to store same in a dam and to use the water for irrigation purposes.

4.2 The First and Second Respondents are alleged to be impeding the flow of water as a result of which no water was being received on the Trust Farm. They had further suffered financial loss which could not be quantified because of the continuing conduct of the First and Second Respondents and that the only available remedy was by way of final interdict against them.

4.3 The thrust of the Respondents’ case is that the First Respondent is by virtue of a usufruct entitled to a sixth share of water being an entitlement in terms of the servitude registered against Portion 37. The Second Respondent, who lives on Portion 37 with the First Respondent by virtue of him being in control and in management of Portion 4, is entitled to a two-thirds share being an entitlement in terms of the servitude registered against Portion 4. The Second Respondent has also obtained a licence to take 22580 cubic metres of water per annum from the spring to use for irrigation on Portion 4.

4.4 The Fourth Respondent who has leased a part of Portion 37 from the First Respondent is also entitled to a share of the water in terms of the servitude on Portion 4 as a result both the Second and Fourth Respondents have the right to use their share as they please and this included diverting water to Portion 37. The First and Second Respondents denied any wrongdoing and seek dismissal of the matter.

[5] APPLICATION OF THE LAW TO THE ISSUES:

5.1 On behalf of the Applicants it is submitted that the relief sought fulfills the requirements for a final interdict as stated in Sanachem (Pty) Ltd v Farmers Agri-Care (Pty) Ltd & Others 1995 (2) 781SA (A) 78B–D. The requirements are dealt with as follows:

“ a clear right”: The Applicants have an entitlement in terms of the servitude and also by virtue of the licence issued in terms of the Water Act, though it is submitted by the First and the Second Respondents that the Applicants to do not by virtue of their licence possess the sole right to take water from the spring for agricultural purposes.

5.2 In the case of Starke NO and Another v Schreiber and Others [2001] All SA (CPD) 167 at 182G, Van Heerden J deemed it necessary for different reasons to this case to examine how the applicability of the National Water Act 36 of 1998 affects a persons’ right to take water from a water resource. Even though no extensive submissions were made in respect of the Act, it is worthwhile to look into the limitations placed on owners of land with regard to their right to water originating on their properties or their rights to a servitude.

5.3 The Act replaces any entitlement to water that any person may have enjoyed or enforced under any other law. Section 4 provides for the following:

(a) to take or use water;

(b) to obstruct or divert a flow of water;

(c) to affect the quality of any water;

(d) to receive any particular flow of water;

(e) to receive a flow of water of any particular quality; or

(f) to construct, operate or maintain any water.

5.4 The Applicants obtained a licence in terms of Section 21(a) and (b) and the Second Respondent one in terms of Section 21(a) of the Water Act. Section 2 (a) provides for the taking of water from and 21(b) for storing water from a water resource. Section 22 (read with Sections 32 and 34) of the Act provides for permission to use water without a licence.

5.5 Relevant to this case is Section 22(a)(i) and (ii) which provides that a person may only use water without a licence-

(i) if that water use is permissible under schedule 1;

(ii) if that water use is permissible as a continuation of an existing lawful use;

5.6 In Starke’s case, supra, at 183B–D the Learned Judge said in respect of water use by way of licence in terms of Section 21 or by way of general authorization in terms of Section 22 (read with sections 32 and 34):

“It is clear from section 4 read with Chapter 4, that all persons are henceforth only entitled to use water in South Africa if such is permissible in terms of the Act”.

5.7 The Applicants base their claim on a servitude and in terms of the Water Act. While the Act only places limitations on the usage of water it seems, the rights and conditions or obligations attached to the title deeds are only enforceable if such rights were in existence at any time during a period of two years immediately before the enactment of the Water Act on the 1 October 1998 (in terms of Section 22 (a)(i)(ii) read with sections 32 and 34). So even if there is a servitude entitling usage of water if acquired within the constraints of the Act, then the servitude alone would not per se entitle any person to use of water without authorization in terms of the Act. On the other hand, I am of the view, that such rights and obligations which are not in conflict with the Water Act e.g. rights of access and right to maintain the water course are valid and enforceable rights of servitude. The only requirement is that such rights should be exercised in a civil manner.

5.8 The Applicants have complied with the requirements of the law in that they do not rely only on the servitude as giving them the right to take water from the spring. They have complied with the Water Act in terms of Section 21(a) and (b) to enable them to exercise such right. The First Respondent claims a right to a usufruct over Portion 37 without giving any details as to when these rights were obtained and details of registration in a notarial deed. She also does not have a licence to use and store water in terms of the Water Act. If she is deemed to be a person described in Section 22 (a) (i) or (ii) of the Water Act then her usage is limited and in terms of (ii) the continuation of an existing lawful use is only permitted as stated in the preamble to Part 3 of the Act:

“This Part permits the continuation under certain conditions of an existing water use derived from a law repealed by this Act. An existing lawful water use, with any conditions attached is recognized but may continue only to the extent that it is not limited, prohibited or terminated by this Act. No licence is required to continue with an existing lawful use until a responsible authority requires a person claiming such an entitlement to apply for a licence. If a licence is issued it becomes the source for authority for the water use. If a licence is not granted the use is no longer permissible. “

5.9 The First Respondent has not proved any entitlement to the use of water. The title deed in respect of Portion 37 was registered in favour of the Third Respondent, a closed corporation, on the 28 August 1996. In terms of the Water Act the Third Respondent would be entitled to enforce its right of water usage in terms of the servitude to the extent that it is not in conflict with the Water Act. Potion 37 does not possess a licence to use water for irrigation or to store water in a dam nor is it authorized to receive any water as replenishment from Portion 4.

5.10 The Second Respondent applied for a licence in terms of Section 21 (a) of the Water Act, to take and use water for irrigation only on Portion 4. If he is to be considered in terms Sections 22 (a) and (b) read with Sections 32 and 34 of the Water Act, his rights are limited by the Water Act. He further does not have any rights in terms of the servitude because he is not a successor in title to Portion 4 nor has he produced any instrument such as a notarial deed granted in his favour by the Fourth Respondent to show his rights of control and management. He also does not have the right to store water in a dam for irrigation purposes on Portion 4 neither does he have the right and or authorization to replenish the needs of Portion 37 in terms of the Water Act.

5.11 The Fourth Respondent acquired full title to Portion 4 on the 30 August 2001 and her rights to the two-thirds share in terms of the servitude registered against the title and her rights to the use of water without a licence can only be exercised within the confines of the Water Act. The effect of the water laws on the two-thirds, and sixth share entitlements as embodied in the servitude can no longer be claimed as a right, nor can any person do as he pleases with his share even if the water originates from a source on private property.

5.12 “injury actually committed or reasonably apprehended and the absence of similar protection by other remedy”

It is submitted further that the Applicants have complied with the requirements set out in Minister of Law and Order, Bophuthatswana, and another v Committee of the Church Summit of Bophuthatswana and others 1994 (3) SA 89 at 99A-C where it was said that:

“for a final interdict an applicant need not establish that injury will arise or ensue as a result of the infringement of a right, but need only prove a reasonable apprehension of injury of such a nature which a reasonable man might consider and conceive of being confronted by the facts. . . . .his well grounded apprehension of irreparable loss or infringement of rights must be proved as an objective fact based upon substantial grounds. . . . . .The test is objective. The Court must decide, on the basis of the facts established, whether the are grounds for the entertainment of a reasonable apprehension “ .

This position was also endorsed in the Starke case (supra).

5.13 On behalf of the Respondents it is submitted that the allegations of the Applicants are speculation and that no cause for the cessation of water has been established and that they have failed to show how the flow of water was impeded. Without being repetitive, I am of the view that the Applicants have clearly shown why they believe that the First and Second Respondents have infringed their rights and how they will continue to do so in the future. The Applicants acquired their entitlement to water first by way of servitude. We have however seen how the Water Act has limited the exercise of such right unless there was compliance with the Act. The Applicants complied with the law. We have also seen how the First and Second Respondents have diverted the flow of water to Portion 37 despite the fact that they had no right to do so and also in transgression of the provisions of the Water Act. The Third and Fourth Respondents could only have exercised such right to the use of water in terms of the servitude and in respect of Portion 37 within the confines of the Water Act as explained above.

5.14 Finally the Applicants have shown on the papers that due to the continuous infringement by the First and Second Respondents why it was difficult for them to estimate the quantum of damages suffered, thereby justifying the relief sought.

5.15 The conduct of the First and Second Respondents in this matter is deserving of a special costs order to be made against them.

[6] CONCLUSION:

In the light of the above I am of the view that the Applicants have shown in more than one way, how their rights to the use of water have been infringed by the conduct of the First and Second Respondents. The Third and Fourth Respondents as the rightful owners of Portion 37 and Portion 4 are expected to take such reasonable steps to ensure that the rights and obligations in respect of the servitude and the rights to the use of water in terms of the Water Act are complied with by those persons living on their properties.

In the premises an order is granted in terms of paragraphs 1, 1.1, 1.2 and 2 of the Notice of Motion.

Further, the First and Second Respondent are ordered to pay costs of this application jointly and severally on the scale of attorney and client.

_____

V

V TLHAPI

ACTING

JUDGE OF THE HIGH COURT

APPEARANCES:

Appearances:

Counsel For The Applicants : ADV GRUNDLINGH

Counsel For The 1st & 2nd Respondents : ADV MUNRO

Attorneys for the Applicants : NIENABER & WISSING

Attorneys for 1st & 2nd Respondents : Smit & Stanton

Date of Hearing : 13 June 2005

Date of Judgment : 7 July 2005

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