Viljoen N.O and Others v Du Preez (13082/2020) [2021] ZAWCHC 235 (16 November 2021)

Viljoen N.O and Others v Du Preez (13082/2020) [2021] ZAWCHC 235 (16 November 2021)

The court found that the respondent had acted in clear breach of both the 2014 and 2016 orders by installing unauthorized pipes and reconstructing the deflection wall without the applicants' consent. The respondent's explanations regarding flooding and lawful abstraction from a small fountain were rejected as improbable and unsupported by the evidence. The respondent admitted to assaulting the fourth applicant and subsequently threatened further violence, justifying an interdict. The court held that the applicants had no alternative remedy and were entitled to final relief. However, the issue of whether the small fountain constitutes a separate lawful source was referred for oral...

Citation
[2021] ZAWCHC 235
Parties
Applicant: Philippus Jakobus Viljoen (Snr) NO; Applicant: Philippus Jakobus Viljoen (Jnr) NO; Applicant: Arnoldus Jacobus Stofberg NO; Respondent: Hennie Du Preez
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 November 2021
Case Number
13082/2020
Procedural Posture
Urgent Application / Final Relief Sought After Initial Interim Application; Matter Heard on Opposed Motion Roll
Outcome
Application granted in part; respondent ordered to comply with prior court orders, interdicted from assaulting or threatening the applicants, and ordered to pay costs. Certain issues referred for oral evidence.
Judges
Mangcu-Lockwood
Legal Topics
Water Rights, Contempt of Court, Final Interdict, Interim Interdict, Self Help, Assault and Threats
Land and Property Civil Procedure Water Rights Contempt of Court Final Interdict Interim Interdict Self Help Assault and Threats

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Parties

Philippus Jakobus Viljoen (Snr) NO

Applicant

Philippus Jakobus Viljoen (Jnr) NO

Applicant

Arnoldus Jacobus Stofberg NO

Applicant

Hennie Du Preez

Respondent

Procedural Posture

Urgent Application / Final Relief Sought After Initial Interim Application; Matter Heard on Opposed Motion Roll

Legal Issues

  1. 1 Whether the respondent contravened the 2016 and 2014 court orders regarding water abstraction and deflection wall construction.
  2. 2 Whether the respondent is in contempt of the 2014 and 2016 orders.
  3. 3 Whether the respondent assaulted or threatened the fourth applicant, justifying an interdict.

Ratio Decidendi

The court found that the respondent had acted in clear breach of both the 2014 and 2016 orders by installing unauthorized pipes and reconstructing the deflection wall without the applicants' consent. The respondent's explanations regarding flooding and lawful abstraction from a small fountain were rejected as improbable and unsupported by the evidence. The respondent admitted to assaulting the fourth applicant and subsequently threatened further violence, justifying an interdict. The court held that the applicants had no alternative remedy and were entitled to final relief. However, the issue of whether the small fountain constitutes a separate lawful source was referred for oral...

Court Disposition

Application granted in part; respondent ordered to comply with prior court orders, interdicted from assaulting or threatening the applicants, and ordered to pay costs. Certain issues referred for oral evidence.

Orders

  • The respondent is ordered to comply forthwith with the order granted on 13 December 2016 under case number 8067/2016 by closing the furrow, pipes and manhole diverting water from the Watervalstroom or sources thereof to Kanonkop.
  • The question of whether the small fountain used by the respondent as from 2016 forms part of the Watervalstroom or is from a different source is referred for oral evidence.