Brief Summary

Water Law — Water rights — Dispute over water diversion — Appellants diverted water from Watervalstroom for agricultural use, impacting respondents' access to water for their dam — Respondents sought urgent interdict to stop diversion and allow access to water sources for maintenance — Court granted interdict pending determination of underlying action regarding water rights — Appeal against interdict upheld, confirming respondents' entitlement to access water sources and halt unauthorized diversion.

Comprehensive Summary

Summary of Judgment

Introduction

This matter was an appeal to the Full Court of the Western Cape High Court, Cape Town against an order granted by a single judge in urgent motion proceedings. The order appealed against granted interim interdictory relief pendente lite in a water-related dispute between neighbouring farmers, pending the determination of an already-instituted action.

The appellants were Hennie du Preez and others, including trustees of the Kromspruit Trust (registered owner of the farm Kanonkop and another farm) and Willem Stephanus Conradie (registered owner of Bergplaas). Du Preez was farming on Bergplaas and Kanonkop and was in the process of acquiring ownership of them (and another property). The first to third respondents were trustees of the PJ Viljoen Boerdery Trust, the registered owner of the farm De Liefde. A further respondent (George Johan Viljoen) was a neighbouring landowner whose dam also formed part of the broader factual matrix. The Minister of Environmental Affairs and Development Planning (Western Cape) and the Minister of Water Affairs and Sanitation were also cited as respondents, reflecting the regulatory context in which the dispute arose.

The procedural history was material. In 2014 the respondents had brought a mandement van spolie application (case no. 9883/14) concerning alleged interference with their diversion of water at a point on the Watervalstroom. That application was provisionally settled by a court order dated 25 June 2014, preserving an interim regime pending determination of an action. The contemplated action was instituted as case no. 15076/14, in which the respondents sought enforcement of alleged water rights and water-use rights regarding the Watervalstroom. During the exchange of pleadings in that action, further urgent proceedings occurred in 2015 (case no. 14118/2015) relating to alleged spoliation at a second diversion point; those proceedings and the subsequent appeal were dismissed. Against that litigious background, the present urgent application was launched in May 2016, seeking interim relief pending the outcome of the pending action.

The dispute’s subject matter concerned access to and diversion of water for agricultural use during severe drought conditions in the Western Cape. The immediate controversy was the implementation by Du Preez in 2015 of a scheme to pipe water emanating from a natural spring on state land above Wolseley, by way of a manmade channel referred to as “the furrow”, to a dam on Kanonkop, allegedly reducing water that would otherwise have been available to fill the dam on De Liefde.

Material Facts

The court accepted as common cause that the respondents (as owners of De Liefde) historically filled their dam with water diverted from the Watervalstroom at the start of each winter by annually constructed temporary diversion works at a location referred to as the first diversion point. Water diverted there entered a manmade channel called the “damsloot”, which also served, through additional diversion points, to supply dams on other properties, including a neighbouring farm (De Liefde 323) owned by George (“Org”) Viljoen. The 25 June 2014 court order (by agreement) permitted the respondents to continue this winter diversion system, and permitted Du Preez to break down the annual temporary diversion works once the De Liefde dam was full.

It was also undisputed that in the latter part of 2015, Du Preez cleared the first part of the upper reach of the furrow and laid a pipeline from near the beginning of the furrow to convey water more efficiently to a dam on Kanonkop. The pipeline did not follow the original furrow route precisely and bypassed obstructions created on a neighbouring farm (De Eike), where the furrow had been obstructed by a weir in 1983 and later by the construction of the De Eike dam around 2002/3.

The furrow’s route and configuration were described in evidence and were treated as non-contentious in its broad depiction, particularly as illustrated in figure 2-1 of reports by Professor J.A. Du Plessis, a civil engineering expert engaged by the respondents. For descriptive purposes, the furrow was divided into an upper furrow (from its junction with the Donkerkloof-upper Watervalstroom near a spring to the De Eike dam) and a lower furrow system below the De Eike dam. The lower furrow system included a principal route known as the “groot sloot” (also called the “wintersloot”) that intersected the Watervalstroom below the first diversion point, and a network of associated natural and manmade channels.

Central facts were disputed. A key factual dispute was whether the upper furrow had been in use during the two-year “window period” immediately prior to the commencement of the National Water Act 36 of 1998 (namely 1 October 1996 to 30 September 1998), such that its use could qualify as an existing lawful water use. Du Preez asserted, based on his investigations and photographs, that the furrow entrance was functional when he saw it in August 2015 and that relevant stone wall structures were already present. In contrast, Org Viljoen asserted that the upper furrow had not been used during the relevant period and was overgrown; he also related the obstruction at De Eike as having “cut off” the furrow.

There was also dispute about whether, assuming the furrow had been used during the window period, it returned water to the Watervalstroom above the first diversion point, and whether Du Preez’s current configuration (including piping and physical works at the intake) enabled greater abstraction than any historical use, to the respondents’ prejudice.

The expert evidence of Prof Du Plessis was treated as significant in relation to the furrow’s physical characteristics and flow dynamics. He observed a substantial flow from a perennial spring feeding the Donkerkloof and a diversion into the furrow facilitated by rocks in the streambed. He described the topography as such that even slight blockage would prevent the upper furrow from functioning. He also observed what he considered to be recently constructed or enhanced diversion and retaining works at the furrow intake, and he concluded that the interventions had the effect that significantly less flow would reach the first diversion point and that more flow would be channelled to the pipe inlet and thus not reach the first diversion point.

The court further recorded that, although the judge a quo unusually heard limited oral evidence from Conradie, that oral evidence did not resolve the core factual dispute about whether the upper furrow had been operational during the statutory window period. Conradie’s evidence tended rather to confirm that any return of water to the Watervalstroom above the first diversion point would, at best, have been incidental and limited.

Legal Issues

The appeal required determination of issues concerning the nature and correctness of interim interdictory relief, and the appropriate approach to disputed facts in motion proceedings of this kind. A primary legal question was whether the order granted by the court a quo was interim or final in effect, because that classification affected the evidentiary approach contended for by the appellants (who argued for application of the Plascon-Evans approach on the basis that the relief was final in character).

A further legal question concerned whether, on the papers, the respondents had satisfied the established requirements for an interim interdict pendente lite, including whether they demonstrated at least a prima facie right (though open to doubt) to the protection sought, a well-grounded apprehension of irreparable harm, that the balance of convenience favoured interim relief, and the absence of another satisfactory remedy.

Within that framework, the dispute involved a mixture of fact (whether the upper furrow was used during the statutory window period; what the historic functioning of the furrow was; and the impact of Du Preez’s works), and the application of law to fact (whether the proved or probable historic use constituted an “existing lawful water use” under the National Water Act, and whether current use was materially different from any historic use). The matter also required an evaluative assessment on probabilities appropriate to interim interdict proceedings, in accordance with the approach described in Webster v Mitchell and its progeny.

Although certain points of statutory interpretation under the National Water Act 36 of 1998 were raised in argument (including what constituted the relevant “water use” for purposes of s 21 and the notion of existing lawful use), the appeal court ultimately found it unnecessary to resolve the correctness of the court a quo’s interpretive approach because the appeal could be disposed of on the result supported by the probabilities on the papers.

Court’s Reasoning

The appeal court first addressed the appellants’ contention that the relief was final in character and therefore demanded a different approach to fact-finding. It held that the interdict was plainly provisional, granted pending the final determination of the parties’ contested rights in the action. The court distinguished the situation from Minister of Finance v Paper Manufacturers Association, where an “interim” interdict had a final effect because it foreclosed the Minister’s ability to procure subsequent parliamentary confirmation of administrative amendments; in the present matter, neither the High Court’s interim order nor the appeal’s determination would pre-empt what fell to be decided in the pending action.

The court accepted that the interim order had an “irreversible” practical effect in the sense that it deprived the appellants of use of the upper furrow pending trial, and it noted that such an effect could be relevant to the appealability of the order. It referred to authority recognising that appeals against interim interdicts may be entertained where it is in the interests of justice, while also noting the continuing relevance of the Zweni criteria in High Court and SCA practice. The appealability point was not argued, and the court proceeded on the basis that the appeal was properly before it.

Turning to the merits, the court restated the requirements for an interim interdict pendente lite, with reference to L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd, and then explained the accepted approach to prima facie right in this context, as articulated in Webster v Mitchell, Gool v Minister of Justice and Another, and Simon NO v Air Operations of Europe AB and others. In this approach, the court assesses the applicant’s averments together with those respondent averments that are not genuinely disputable, and then considers whether, having regard to inherent probabilities, the applicant should obtain final relief at trial; contradictory respondent allegations are then considered to determine whether serious doubt is thrown on the applicant’s case.

Applying that framework, the court identified the critical factual enquiry as whether the upper furrow was in use during the statutory window period. It acknowledged that there was a fundamental dispute of fact that could not be decisively resolved on the papers, especially in light of Du Preez’s photographs. Nonetheless, the court emphasised that interim interdict proceedings of this kind require a probabilistic evaluation on the papers, and it undertook that evaluation.

The court considered the evidence bearing on the upper furrow’s operational state. Org Viljoen’s evidence was that it was not used during the relevant period and was overgrown; Conradie’s position was not treated as disinterested because of his financial interest in Du Preez’s farming enterprise. Importantly, while certain witnesses testified to water supply to Kanonkop during the relevant period, their evidence related essentially to the lower furrow system (including water reaching Kanonkop from below De Eike) and did not corroborate Du Preez’s claim that the upper furrow was operational during the window period.

The court placed weight on Prof Du Plessis’s observations and engineering assessment regarding how the upper furrow would function and how easily it would become inoperative through vegetative blockage. It regarded the probabilities as favouring the respondents’ version that the upper furrow had likely fallen into desuetude long before the window period. The court also considered corroborative indications, including the content of a 1979 letter by a prior Kanonkop owner (Prof Zeeman) stating that the furrow was overgrown and washed away at a crossing point.

On this probabilistic assessment, the court concluded that the probabilities strongly favoured the respondents’ assertion that water was not abstracted from the Donkerkloof-Watervalstroom via the upper furrow during the statutory window period. The consequence was that Du Preez’s current use of the upper furrow did not qualify as the continuation of an existing lawful water use under the National Water Act, and, absent a licence, the abstraction was therefore not a currently permitted water use. On that basis, the court held that unlawful conduct had been established on the papers at the requisite level for interim relief.

The court then considered whether the respondents had established infringement of a protectable interest and harm. It stated that the respondents’ right to at least a share of water flowing down the Watervalstroom was not in contention, and that the 25 June 2014 order provided a basis to recognise a prima facie right for the respondents to divert a substantial part of winter water at the first diversion point until their dam was filled. Prof Du Plessis’s evidence, which was not contradicted, established that diversion into the upper furrow would diminish the volume that would otherwise reach the first diversion point, and his later observations suggested that additional works had been undertaken to enhance the diversion to the pipeline, resulting in significantly less water reaching the first diversion point.

On irreparable harm, the court accepted that deprivation of winter water for dam-filling used for irrigation could cause harm that could not readily be remedied, and it regarded the respondents’ inability to fill their dam as at least probably exacerbated by the upper furrow abstraction, even allowing for prevailing drought conditions.

The court’s balance of convenience analysis favoured the respondents. It reasoned that Kanonkop had historically received winter water from sources that would not be interfered with by the interim interdict, including the main Watervalstroom flow after it passed the first diversion point and water reaching the Watervalstroom below that point via the lower furrow system. By contrast, the respondents’ primary winter supply depended on flow reaching the first diversion point, and the interim relief was framed as restoring the status quo ante pending the action, rather than enhancing the respondents’ position. The court also accepted that no other satisfactory remedy was suggested or apparent.

The court addressed a criticism that the court a quo had misdirected itself by focusing on the re-routing of water already abstracted rather than on abstraction at the Donkerkloof as the relevant “water use” under s 21 of the National Water Act. The appeal court held that, given its conclusion on the core probabilities, it was unnecessary to determine whether that criticism was well founded, and it reiterated that appeals are concerned with the result rather than the lower court’s route to the result. It nonetheless observed that, even on the appellants’ preferred interpretive approach, the present facts suggested that current use might not qualify as an existing lawful water use because existing lawful use comprehends, among other things, the same extent of water actually used during the window period, with reference to Starke NO and another v Schreiber and others.

On costs, the court distinguished between the usual practice of standing over costs in interim interdict proceedings and the position on appeal. It held there was no reason why costs should not follow the result on appeal.

Outcome and Relief

The appeal was dismissed. The Full Court upheld the interim interdict that required the appellants, pending determination of the action, to close the furrow and associated works installed by Du Preez in 2015 by which water was being diverted from the Watervalstroom or its sources to Kanonkop, and that authorised the respondents to access the water sources on Bergplaas for inspection, protection, and maintenance.

The court ordered that the costs of the appeal be paid by the first to fifth appellants jointly and severally, the one paying the others to be absolved.

Cases Cited

The judgment referred to the following cases: Phillips and Others v National Director of Public Prosecutions [2003] ZASCA 74; [2003] 4 All SA 16 (SCA); Maccsand CC v Macassar Land Claims Committee and Others [2004] ZASCA 114; [2005] 2 All SA 469 (SCA); Minister of Finance v Paper Manufacturers Association [2008] ZASCA 86; [2008] 4 All SA 509 (SCA); 2008 (6) SA 540; L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd [1969] 1 All SA 430 (C); 1969 (2) SA 256; Webster v Mitchell 1948 (1) SA 1186 (W); Gool v Minister of Justice and Another 1955 (2) SA 682 (C); Simon NO v Air Operations of Europe AB and others [1998] ZASCA 79; 1999 (1) SA 217 (SCA); [1998] 4 All SA 573; Plascon-Evans Paints (Tvl) Ltd. v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC); Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC); International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2010 (5) BCLR 457 (CC); 2012 (4) SA 618; Zweni v Minister of Law and Order 1993 (1) SA 523 (A); S v Western Areas 2005 (5) SA 214 (SCA); Philani-Ma-Afrika & Others v W M Mailula & Others [2009] ZASCA 115; [2010] 1 All SA 459 (SCA); 2010 (2) SA 573; and Starke NO and another v Schreiber and others [2001] 1 All SA 167 (C).

Legislation Cited

The judgment referred to the Water Act, 1956, and to the National Water Act 36 of 1998, including discussion of ss 1, 3, 4, 21, 22, 32, and 34 in relation to the replacement of pre-1998 entitlements and the concept of existing lawful water use. It also referred to the Customs and Excise Act in the discussion distinguishing Minister of Finance v Paper Manufacturers Association, and referred to the Supreme Court Act 59 of 1959 and the Superior Courts Act 10 of 2013 in the context of appellate access and appealability.

Rules of Court Cited

No specific Uniform Rules of Court were expressly cited in the judgment. The appellants’ argument relied on the so-called Plascon-Evans approach to motion proceedings, but that was treated as a case-law principle rather than a cited procedural rule.

Held

The court held that the interim interdict was not final in nature, because it did not finally determine the parties’ rights and did not have irrevocable legal effect in the sense relevant to the requirements for a final interdict, notwithstanding that it had serious practical consequences pending trial.

On the merits, the court held that, on a probabilistic assessment appropriate to interim interdict proceedings, the evidence strongly favoured the conclusion that the upper furrow was not in use during the statutory window period (1 October 1996 to 30 September 1998). Consequently, Du Preez’s 2015 abstraction and diversion works at the upper furrow were probably not a continuation of an existing lawful water use under the National Water Act and were therefore unlawful absent licensing.

The court further held that diversion into the upper furrow reduced the volume of water that would otherwise reach the first diversion point on the Watervalstroom, thereby infringing the respondents’ prima facie protectable interest in the winter flow regime pending trial, with a well-grounded apprehension of irreparable harm. The balance of convenience favoured restoring the prior position, and no satisfactory alternative remedy was identified. The appeal was therefore dismissed with costs.

LEGAL PRINCIPLES

An interim interdict pendente lite requires proof of a clear right or a prima facie right though open to doubt, together with a well-grounded apprehension of irreparable harm if relief is refused and the applicant ultimately succeeds, that the balance of convenience favours relief, and the absence of another satisfactory remedy. The judgment applied this framework as set out in L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd [1969] 1 All SA 430 (C); 1969 (2) SA 256.

In assessing a prima facie right for interim relief on motion, the court applies the Webster v Mitchell approach as explained in Gool v Minister of Justice and Another 1955 (2) SA 682 (C) and Simon NO v Air Operations of Europe AB and others [1998] ZASCA 79; 1999 (1) SA 217 (SCA); [1998] 4 All SA 573. This entails considering the applicant’s allegations together with such respondent allegations as are not genuinely disputable, and then deciding on the inherent probabilities whether final relief should be obtained at trial; serious doubt cast by the respondent’s contradictory version may defeat interim relief.

An interdict is not “final” merely because it has significant practical consequences pending trial; it is final only if it finally and conclusively determines the rights in issue or has an irrevocable legal effect. The court distinguished situations where an ostensibly interim order is final in substance (as in Minister of Finance v Paper Manufacturers Association [2008] ZASCA 86; [2008] 4 All SA 509 (SCA); 2008 (6) SA 540) from cases where the order is genuinely provisional and does not pre-empt the trial court’s determination.

In the statutory context, the judgment applied the principle that water use under the National Water Act 36 of 1998 is permissible only if it constitutes a continuation of an existing lawful water use (within the defined window period) or is otherwise authorised (for example by licence or general authorisation). It further noted, with reference to Starke NO and another v Schreiber and others [2001] 1 All SA 167 (C), that an existing lawful water use comprehends, among other things, the same extent of water actually used during the statutory reference period, thereby limiting attempts to expand use under the guise of continuity.

Du Preez and Others v Viljoen NO and Others (A174/2016) [2017] ZAWCHC 113 (11 October 2017)