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[2018] ZAWCHC 132
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Schutte v Five Lakes Farm CC and Others (18104/2014) [2018] ZAWCHC 132 (15 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CIRCUIT COURT, GEORGE)
Case No: 18104/2014
In
the matter between:
EGHARDT
RUPERT SCHUTTE
Applicant
and
FIVE
LAKES FARM CC
First
Respondent
ABSA
BANK LIMITED
Second
Respondent
THE
REGISTRAR OF DEEDS, CAPE TOWN
Third
Respondent
Court:
Van
Staden, AJ
Date
of Hearing:
30,
31
May
and 17 October 2017
Judgment:
15
February 2018
JUDGMENT
INTRODUCTION
1.
The crucial
question in this matter is the nature and extent of the evidence
required for the acquisition of praedial servitudes
as provided for
in Section 127 of the National Water Act No 36 of 1998 (‘
the
Act’
)
in an instance where an applicant for such servitudes bases his claim
on an existing lawful water use, defined in Section 32(1)(a)
of the
the Act as a use which took place during the period of two years
prior to the commencement of the Act.
2.
Applicant,
Mr. E.R. Schutte (‘
Schutte
or applicant’
),
applied for such praedial servitudes over Portion 211 of the farm
Klein Krantz
(‘Portion
211’
),
the property of first respondent, Five Lakes Farms CC (‘
Five
Lakes or first respondent’
),
in favour of his property, Portion 210 of the farm Klein Krantz
(‘
Portion
210’
)
in the district of George.
THE
HISTORY OF THE LITIGATION
3.
Schutte’s
attorney addressed a letter dated 10 June 2014 to Five Lakes advising
of his intention to claim a servitude, as
required in Schedule 2 of
the Act. A servitude diagram 865/2014 indicating the point of
extraction in the Duiwe River and the route
of the pipeline crossing
Portion 211 was annexed to this notice.
4.
Applicant
issued the ensuing notice of motion on 22 August 2014 and inter alia
applied for the following:
4.1.
A servitude
of abutment to take water from the Duiwe River, a watercourse on
Portion 211;
4.2.
A servitude
of aqueduct to direct the flow of this water via Portion 211 to
Portion 210; and
4.3.
An order
that no compensation is payable to Five Lakes in respect of these
servitudes.
5.
In the
founding affidavit Schutte explained that he purchased Portion 210 at
a public auction held on 26 June 2002 and that this
property was
advertised as land under irrigation with an existing pipeline. At the
commencement of the auction it was announced
that Portion 210
acquired its water from the Duiwe River and a pipeline crossing
Portion 211. Schutte, furthermore, stated that
he, as owner of
Portion 210, derived his right to this water from the provisions of
the previous Water Act 54 of 1956, more specifically
Sections 8 and
9, read with the definitions of ‘
riparian
land’
and ‘
riparian
owners’
in Section 1 of that Act.
6.
Schutte
indicated that there had been compliance with the requirements of
Schedule 2 to the Act, which deals with notice of a claim
for a
servitude under Section 127 of the Act.
7.
Schutte
furthermore relied on certain information obtained from an engineer,
Mr. Retief Kleynhans (‘
Kleynhans’
),
who previously assisted him to lodge an application with the
Department of Water Affairs and Sanitation in order to register
certain water uses, including the water uses under considerations in
this matter. Schutte intimated that Kleynhans, who allegedly
utilised
aerial photographs of the two portions to reach his conclusions, was
prepared to state that the most probable inference
was that, during
the qualifying period of two years prior to the commencement of the
Act referred to in Section 32(1)(a) of the
Act, water was taken at
the existing point of extraction in the Duiwe River on Portion 211
and pumped to Portion 210 by utilising
the existing pipeline. In the
founding affidavit reference was made to a confirmatory statement of
Kleynhans annexed as an annexure.
The annexed statement signed by
Kleynhans, dealing with the historic water uses in terms of Section
32 in respect of Portion 210,
was signed by Kleynhans but is not a
sworn statement.
8.
In first
respondent’s opposing affidavit deposed to on 29 September
2014, Ms. Vicky Ann Benjamin (‘
Benjamin’
)
an erstwhile member of Five Lakes explained that the members of Five
Lakes were in the process of transferring their membership
interest
in Five Lakes to a third party. The submission was therefore made
that this third party should have been cited as a respondent
in the
application.
9.
In respect
of the allegation that the water use on Portion 210 was authorised
under the previous Water Act 54 of 1956 Benjamin responded
that she
as a layperson was in no position to present argument of a legal
nature and that her legal representatives would do so
at the time of
the hearing of the application.
10.
She
furthermore stated that Five Lakes purchased Portion 211 during 1997
and that she lived on this property from July 1997 until
the year
2000. She intimated that the then owner of Portion 210, Mr. Bill
Troskie (‘
Bill
Troskie’
),
visited Portion 210 once in a while as a holiday home, that he
undertook no farming activities, kept no animals and that he did
not
have a farm manager on Portion 210. His brother, Mr. Boet Troskie
(‘
Boet
Troskie’
),
the owner of Portion 211, farmed actively on his property and had a
permanent farm manager, a Mr. Danie Oosthuizen (‘
Oosthuizen’
),
to manage Portion 211.
11.
She claimed
that no water whatsoever was supplied from the Duiwe River to Portion
210 during the five years from mid-1997 to 2002,
nor for the first
approximately two years of Schutte’s occupancy. Thereafter
Schutte approached one of the members of Five
Lakes, Mr. Trevor
Blamire (‘
Blamire
’),
and he agreed that Schutte could draw water from the Duiwe River in
return for helping to maintain the water supply. After
Blamire passed
away in 2011, she was informed that Schutte continued to draw water
for his own use.
12.
Benjamin
indicated that she intended tracing Oosthuizen since she believed
that he would have ‘
valuable
factual information which will surely assist the court in determining
the application’
.
She also indicated that, if necessary, she would ask the court’s
permission to file a supplementary affidavit by Oosthuizen.
13.
She
furthermore relied on certain information furnished by Mr. C. J. van
Huyssteen (‘
Van
Huyssteen’
),
an estate agent. A confirmatory affidavit of Van Huyssteen was filed
and, in this affidavit, he claimed that water from the Duiwe
River
was not utilised for domestic purposes on Portion 210 by Bill
Troskie, but that rain water tanks were utilised.
14.
Benjamin
did not dispute Schutte’s statement that he was not prevented
from using the water-pump and the pipeline in question
and that he
was not denied access to Portion 211 for the purpose of maintaining
the water-pump and pipeline.
15.
In the
replying affidavit deposed to on 16 October 2014, Schutte -
15.1.
Denied many
of the allegations in the opposing affidavit
15.2.
Intimated
that Oosthuizen also managed the farming activities on Portion 210;
15.3.
Conveyed
that the agreement with Blamire that he may utilise the pump in the
Duiwe River on Portion 211 to irrigate grasslands and
for domestic
use on Portion 210 was entered into shortly after he purchased
Portion 211.
16.
On 3
February 2015, Schutte launched an application to file further
affidavits deposed to by a certain Mr. Nel and by Oosthuizen.
This
application was initially opposed but on 6 March 2015 an order was
made by this Court allowing these further affidavits.
17.
In
Oosthuizen’s affidavit, deposed to on 28 January 2015, he
explained that he was the farm manager of both Portions 210 and
211
purchased by the two brothers, Bill and Boet Troskie, from 1984 for
an uninterrupted period of 15 years until 1999. Shortly
after 1984 he
personally installed the existing pump in the Duiwe River as well as
the pipeline to Portion 211. He explained that
the pipeline was
directly linked to the residence on Portion 210 and that the water
was used for domestic purposes, consumption
by animals and for
agricultural irrigation. After Portion 211 was sold during 1997, he
continued to manage the farming activities
on Portion 210 until 1999.
18.
In her
supplementary answering affidavit deposed to on 31 March 2015
Benjamin stated that she had been advised that Schutte bears
the onus
to prove the existence of a right to use water, as well as the extent
thereof. She therefore concluded that Schutte
was not in a
position to satisfy this onus. The non-joinder of the Minister of
Water Affairs and Sanitation was also raised as
a defence. It was
furthermore contended that there are factual disputes between the
parties and that these disputes should have
been envisaged by
applicant when the application was launched. In respect of
Oosthuizen’s affidavit, Benjamin claimed that
his failure to
deal with the reservoir on Portion 211 and the fact that this
reservoir was the source of the water used on Portion
210 on an
intermittent basis, is fatal to the application.
19.
A letter
dated 22 April 2015 was forwarded by Schutte’s attorney to the
attorneys of Five Lakes intimating that there are
factual disputes
that should be referred for oral evidence. It was also stated that
the notice of motion would be amended to show
a specific volume of
water utilised.
20.
On 10
September 2015 applicant amended the notice of motion by limiting the
volume of water that may be extracted to 63 814 m
3
per annum.
21.
On 1 April
2016, first respondent filed a supplementary answering affidavit
deposed to by Ms. Grit Heyroth (‘
Heyroth’
).
Heyroth is the purchaser of the interest in Five Lakes referred to by
Benjamin in her opposing affidavit and now the only member
of Five
Lakes. In this affidavit Heyroth pointed out that on 10 June 2014,
when applicant gave notice to Five Lakes of his intention
to acquire
a servitude, he had not yet applied to the Department of Water
Affairs and Sanitation for the registration of the alleged
water use.
This application was only lodged on 8 August 2014. The legal
submission was therefore made that applicant had no lawful
right to
the use of water when the application in terms of Section 127 of the
Act was launched and that, in the absence of proof
of registration of
water rights, applicant cannot claim to have an authorised lawful
water right.
22.
The matter
was thereafter removed from the roll on 9 September 2016 and on
20
January 2017 a notice was served on first respondent and the Minister
of Water Affairs and Sanitation. In the notice it was stated
that all
the papers in this application had been delivered to the Minister.
The Minister was advised that he could comment on the
application
within ten days of receipt of the notice, or alternatively, elect to
be joined as a party. The Minister did not respond
to this notice.
23.
On 28 March
2017 the matter was postponed for a hearing of oral evidence on
29,
30 and 31 May 2017. In terms of this order the following disputes
were, in terms of Rule 6(5)(g) of the Uniform Rules of Court,
referred to oral evidence:
23.1.
the
dispute whether the owner of Portion 210 of the Farm Klein Krantz,
No 192, Magisterial District of George, Western Cape Province,
extracted water from the Duiwe River during the two-year period prior
to the coming into operation of the National Water Act of 1998 (Act
No 36 of 1998);
23.2.
the
dispute whether the owner of the aforementioned farm led water from
the Duiwe River across Portion 211 of the Farm Klein Krantz,
No 192,
Magisterial District of George, Western Cape Province, to Portion 210
of the Farm Klein Krantz, Magisterial District of
George, Western
Cape Province during the aforementioned two-year period;
23.3.
if
both the aforementioned two issues are decided in the applicant's
favour, the dispute as to the volume of water extracted and
led. It
is recorded that the applicant contends that he need not prove the
volume of water extracted or led while the first respondent
contends
that the applicant does bear such an onus;
23.4.
if
it were to be found that the applicant is entitled to a servitude/s
as prayed for in prayers 1 and 2 of the notice of motion,
the dispute
as to whether the applicant's servitude of aquaduct should follow a
route over the first respondent's property at all;
and
23.5.
if
it were to be found that the applicant's servitude is to follow a
route across the first respondent's property, the following
two
disputes:
23.5.1.
the
route such servitude should follow; and
23.5.2.
the
compensation payable by the applicant to the first respondent, if
any.
24.
In response
to a letter of the attorneys for Five Lakes, Schutte’s attorney
placed the following on record in a letter of
22 May 2017:
24.1.
There is no
such thing as a water registration does not exist. If the owner of
land had certain water entitlements during the qualifying
period and
he had laid claim thereto by advising the Department of Water Affairs
and Sanitation, such owner has a right to the
water involved for as
long as the verification of that entitlement has not shown
differently.
24.2.
Schutte had
filed the necessary documentation with the Breede / Gourits Water
Association.
24.3.
Schutte has
a further entitlement to household water in respect of Portion 210 in
terms of Schedule 1 of the Act.
24.4.
To move the
pipeline on Portion 211 will serve no purpose and will disturb the
ecology on Portion 211 without adding any benefit
for Five Lakes.
24.5.
The
extraction point cannot be moved since such a move would require a
water licence. Problems with the pump at the extraction point
had
been remedied since Schutte replaced the engine and pump.
24.6.
Mr John
Roberts (‘
Roberts’
)
of the Department of Water Affairs and Sanitation supports Schutte’s
views and confirms the quantity of water extracted
during the
qualifying period.
24.7.
The
opinions of Kleynhans support the submissions on behalf of Schutte.
25.
Before the
hearing of 29 May 2017, Kleynhans deposed to an affidavit on 11 May
2017. In this affidavit he explained that Bill Troskie
approached him
for advice in respect of the hydraulic properties of the pipe and
pipeline in question in December 1998. At that
time he visited
Portion 210 and 211 and inspected the pump and pipeline. He noticed
that farming activities, including the irrigation
of established
pasture with a sprinkler system was taking place on Portion 210. He
obtained an aerial photograph of the relevant
properties that had
been taken on 27 August 1998. In August 2014 he again visited Portion
210. He thereafter prepared the application
to register applicant’s
water rights. He annexed correspondence of Roberts to his affidavit
in which the latter in essence
agrees with Kleynhans that the water
uses as claim by applicant was exercised by the owner of Portion 210
during the qualifying
period.
26.
The
evidence of Kleynhans and Schutte, on behalf of applicant, and
Benjamin, on behalf of first respondent, was heard on 30 and
31 May
2017 and argument on 17 October 2017. Counsel for both parties were
allowed further time to file heads of argument and such
heads were
respectively received on 15 November and 7 December 2017.
RELEVANT
PROVISIONS OF THE NATIONAL ACT 36 OF 1998
27.
For the
sake of convenience certain provisions of the Act and the schedules
to the Act are quoted or summarised hereunder.
27.1.
The
definition of ‘
entitlement’
in Section 1 as ‘a right to use water in terms of any provision
of this Act or in terms of an instrument issued under this
Act.
27.2.
The
definition of ‘
responsible
authority’
which means, in relation to a specific power or duty in respect of
water uses that ‘
if
that power or duty has been assigned by the Minister to a catchment
management agency, that catchment management agency’
.
27.3.
The
definition of ‘
watercourse’
in Section 1 which includes ‘
a
river’
and the definition of ‘
water
resource’
which includes a ‘
watercourse’
.
27.4.
The
definition of ‘
waterwork’
in Section 1 as ‘
any
… structure, earthwork or equipment installed or used for or
in connection with water use’
.
27.5.
Section 4:
‘
Entitlement
to water use
(1)
A person may use water in or from a water resource for purposes such
as reasonable domestic use, domestic gardening, animal
watering, fire
fighting and recreational use, as set out in Schedule 1.
(2)
A
person may continue with an existing lawful water use in accordance
with section 34.
(3)
A person may use water in terms of a general authorisation or licence
under this Act.
(4)
Any entitlement granted to a person by or under this Act replaces any
right to use water which that person might otherwise have
been able
to enjoy or enforce under any other law-
(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 waterwork.’
27.6.
Section
22(1)(a) in terms of which a person may also use water without a
licence:
27.6.1.
if
that water use is permissible under Schedule 1 (to the Act)
(sub-section 1); and
27.6.2.
if
that water use is permissible as a continuation of an existing lawful
use (subsection 2).
27.7.
Section
26(1)(c) in terms of which the Minister may make regulations
requiring that any water use be registered with the responsible
authority.
27.8.
The Water
Use Registration Regulations (published under GNR1352 in GG20606 on
12 November 1999) more specifically the following
provisions:
27.8.1.
The
explanatory note where it is stated that: ‘Section 26(1)(c) of
the Act allows for registration of all water uses including
existing
water use in terms of Section 34(2).’
27.8.2.
Paragraph 3
which deals with applications for registration of water use and where
it is stipulated that any person who uses water
in terms of Section
21 of the Act must register such use on a form obtained from the
Department of Water Affairs and Sanitation
and submit the completed
form to the responsible authority when requested to do so by the
responsible authority.
27.8.3.
Paragraph 6
which deals with the extent and lawfulness of water use and reads as
follows:
‘
(1)
the extent or lawfulness of the relevant water use will be determined
on the basis of the information supplied in the application
forms.
The responsibility is with the water user to ensure the correctness
of all information.
(2)
the extent or lawfulness of the water use is subject to verification
by the responsible authority in terms of Section 3(5) of
the Act.’
27.9.
Section
32(1)(a)(i):
‘
32
Definition of existing lawful water use
(1)
An existing lawful water use means a water use-
(a)
which has taken place at any time during a period of two years
immediately before the date of commencement of this Act and which-
(i)
was authorised by or under any law which was in force immediately
before the date of commencement of this Act; …‘
27.10.
Section 34:
‘
34
Authority to continue with existing lawful water use
(1)
A
person, or that person's successor-in-title, may continue with an
existing lawful water use, subject to-
(a)
any existing conditions or obligations attaching to that use;
(b)
its replacement by a licence in terms of this Act; or
(c)
any other limitation or prohibition by or under this Act.
(2)
A responsible authority may, subject to any regulation made under
section 26 (1) (c), require the registration of an existing
lawful water use.’
27.11
Section 35:
‘
35
Verification of existing water uses
(1)
The responsible authority may, in order to verify the lawfulness or
extent of an existing water use, by written notice require
any person
claiming an entitlement to that water use to apply for a verification
of that use.’
27.12
In the headnote to Part 7 under the heading ‘
Individual
applications for licences (SS40-42)’
it is stipulated that
water users who are not required to licence their use, but wish to
convert the use to licenced use may also
use the procedure set out in
this part, but the responsible authority may apply to grant a licence
when the applicant is entitled
to the use of water under an existing
lawful use.
27.13
Section 127:
‘
127
Acquisition of servitudes
(1)
A person who is authorised under this Act to use water may-
(a)
claim a servitude of-
(i)
abutment (defined in Section 126 (a) as the right to occupy, by means
of a waterwork, the bed or banks of a stream or adjacent
land
belonging to another);
(ii)
aqueduct (defined in Section 126(b) as the right to occupy land
belonging to another by means of a waterwork for abstracting
or
leading water); or
(iii)…
(b)
obtain an amendment to any existing servitude of abutment, aqueduct
or submersion,
to
the extent that this is necessary to give effect to that
authorisation.
(2)
The servitude claimed under subsection (1) (a) may be-
(a)
a personal servitude in favour of the claimant; or
(b)
a praedial servitude in favour of the claimant in the claimant's
capacity as owner of property on which the claimant may use
the
water.
(3)
A servitude under this Chapter may also be claimed in respect of an
existing waterwork.
(4)
A person who intends to claim a servitude under this section must
follow the procedure set out in Schedule 2.’
27.14
Section 128
deals with the rights and duties of servitude holders and landowners.
In terms of Section 128(1) the holder of a servitude
has the right of
access to the land which is subject to the servitude for the purpose
necessary for the effective enjoyment of
the servitude and deals with
the rights and obligations of the servitude holder.
27.15
Section 130
addresses the powers of the high court in respect of a claim for a
servitude and determines that the claim may be awarded
without
modifications on such terms as the court considers just (Section
130(a)) and award compensation or refuse to award compensation
(Section 130(b)).
27.16
Section 131
provides that, in determining just and equitable compensation, a high
court must take into account all relevant factors,
including a number
of factors enumerated in sub-paragraphs (a) to (i).
27.17
Section 133
in terms of which an owner of land subject to a servitude may apply
to the high court for the cancellation of that servitude
if the
relevant authorisation associated with the servitude is terminated;
if the rights and obligations in respect of the servitude
have not
been exercised for three years, or for any other lawful reason.
27.18
Section 146
provides for the establishment of an independent body, the Water
Tribunal, and Section 148 provides for appeals to the
Water Tribunal
including an appeal against a decision of a responsible authority,
such as a catchment management agency on the
verification of a water
use under Section 35 by a person affected thereby.
27.19
Schedule 1
deals with permissible use of water and reference is made in this
schedule to Sections 4(1), 22(1)(a)(i) and Item 2 of
Schedule 3 to
the Act. Item 1(a) of Schedule 1 provides that a person may, subject
to the provisions of the Act, take water for
reasonable domestic use
in his/her household directly from any water resource to which that
person has lawful access. Item 1(b)
stipulates that any person may
take water for use on land owned or occupied by that person for
reasonable domestic use, small gardening
not for commercial purposes
and the watering of animals from any water resource which is situated
on or forms a boundary of that
land.
27.20
Schedule 2
addresses servitudes under Section 127 of the Act and the notice in
respect thereof.
27.21
In terms of
Schedule 7, the whole of the previous Water Act 54 of 1956, except
certain sections including Section 1 and Section
9 were repealed with
effect from 1 October 1998. The other sections, including Sections 1
and 9, were repealed with effect from
1 October 1999.
EVALUATION
OF THE EVIDENCE
28.
In
Lekup
Prop Co No 4 (Pty) Ltd v Wright
[1]
it was explained that ‘
a
referral to trial is different to a referral to oral evidence. In the
latter case the affidavits stand as evidence, save to the
extent that
they deal with disputes of fact. Once the disputes have been resolved
by oral evidence, the case is decided on the
basis of that finding
together with the affidavit evidence that is not in dispute.’
29.
Before
dealing with the oral evidence presented, the admissibility of
Oosthuizen’s affidavit deposed to on 28 January 2015
and
referred to in paragraph 17 above, should be dealt with. It was
conveyed to the court that Oosthuizen passed away prior to
the
hearing of oral evidence on 30 and 31 May 2017. During argument Mr.
Joubert, counsel for Schutte, applied in terms of Section
3(1)(c) of
the Law of Evidence Amendment Act 45 of 1998 for the hearsay evidence
contained in Oosthuizen’s affidavit to be
admitted.
30.
First
Respondent’s counsel, Mr. Coetsee, submitted that this
application should be refused for the following reasons:
30.1.
Schutte’s
legal representatives, for tactical reasons did not disclose
Oosthuizen’s death to first respondent until
after the closure
of applicant’s case.
30.2.
Schutte did
not request the court to rule on the admissibility of Oosthuizen’s
affidavit timeously.
[2]
30.3.
Five Lakes
was prejudiced in that it could not timeously determine the full
evidentiary ambit that it faced.
31.
I agree
that the non-disclosure of Oosthuizen’s death under the
circumstances referred to above was a mistake. There is, however,
little merit in first respondent’s claim of prejudice in my
view. The fact of the matter is that Oosthuizen’s affidavit
formed part of the papers since it was filed on 3 February 2015.
Since that date first respondent was aware of its contents and
it
could have been dealt with in cross-examination in the expectation
that Oosthuizen would be called as a witness. If necessary,
first
respondent could also have insisted on the re-call of Kleynhans for
further cross-examination.
Ndlovu’s
case is a criminal matter and is no authority for the proposition
that a court cannot condone the delay in bringing an application
such
as the one under consideration timeously. It is also relevant
to note that Benjamin specifically indicated in her opposing
affidavit that Oosthuizen would have valuable factual information
which will assist the court in determining the application. On
a
consideration of all the factors referred to in Section
3(1)(c)(i)-(vii) the affidavit of Oosthuizen is therefore
admitted.
[3]
32.
For the
determination of the disputes identified in the court order of 28
March 2017, the contents of the affidavit of Oosthuizen
as well as
the evidence of the three witnesses who testified on 30 and 31 May
2017, Schutte and Kleynhans on behalf of applicant
and Benjamin on
behalf of first respondent, must therefore be taken into
consideration.
33.
The proper
approach for the evaluation of the evidence delivered by these
witnesses is to make factual findings about their credibility,
their
reliability as well as the probabilities, taking the subsidiary
factors referred to in the
SFW
v Martell
case into consideration.
[4]
One
of the factors mentioned in respect of reliability is the opportunity
to experience or observe the event in question.
34.
Schutte’s
evidence of the purchase of Portion 210, the state of the waterworks
on Portion 210 and 211, the fact that the existing
infrastructure
allowed for water from the Duiwe River to be delivered to the
residence on Portion 210 for domestic purposes, the
fact that he
found grasslands and orchard which had been previously irrigated on
Portion 210 as well as the terms of his agreement
with Blamire,
referred to above, must be accepted.
35.
First
respondent’s counsel criticised the evidence of Kleynhans and
submitted that his sudden recollection of his visit to
Portion 210
and 211 during 1998 was not properly explained. He pointed out that
he was informed by applicant’s counsel that
‘
Kleynhans
only recently remembered that he visited Portion 210 and 211 during
1998’
.
The evidence of Kleynhans, however, disclosed that he did not forget
that he had visited Portion 210 and 211. He testified that
he did not
think that there was a reason to mention this visit to Schutte or his
legal representatives when he was approached to
deal with Schutte’s
application for the registration of his water uses in 2014. Counsel
for Five Lakes posed the question
why Kleynhans only remembered this
visit after the unfortunate demise of Oosthuizen.
36.
It should
also be noted that Kleynhans during cross-examination found it
difficult to explain why he referred to registration of
Schutte’s
existing lawful water uses, whereas these rights were not registered
but only an application for such registration
had been submitted.
Section 26(1)(c) of the Act and the Water Use Registration
Regulations promulgated thereunder
[5]
,
however, refer to a registration. It is not at all clear to me what
the connection and differences between licences and registrations
are. Verification in terms of Section 35 does appear to me as being
the same as an application for a licence or a registration.
The fact
of the matter is that a person or his successor in title may continue
with an existing lawful water use without a licence
or registration,
but subject to the right of the responsible authority to require a
registration in terms of Section 34 of the
Act or a verification of
the existing lawful water use in terms of Section 35 of the Act. I am
not surprised by the difficulty
experienced by Kleynhans to deal with
the concepts of registration and verification. I also find it
difficult to appreciate the
connection and the difference between
these concepts and the concept of licencing referred to in Part 7
(Sections 40 to 44)
[6]
. For the
purposes of this judgment, however, it is not necessary to further
deal with these concepts.
37.
This
criticism of Kleynhans’s evidence is justified, but in my view,
there is no basis upon which his evidence can be rejected
as false.
He made a good impression and his evidence is corroborated by that of
both Schutte and Oosthuizen and the probabilities.
38.
First
respondent’s counsel submitted that Benjamin was the only one
of the witnesses who testified who was in a position to
give factual
evidence as to what actually occurred during the window period of two
years. In my view, however, her evidence did
not really take the
matter any further. It must furthermore be noted that she was asked
to confirm the contents of her two opposing
affidavits. In the
Lekup-
case
[7]
which dealt with a
referral to trial, it was stated that it was the incorrect procedure
to allow a respondent at such a trial to
read from affidavits. A
witness who gives evidence in trial proceedings must do so in the
ordinary way. In
Lekup
the court a quo was also criticised for accepting affidavits as
proper evidence before that court. It was intimated that affidavits
filed may be used for cross-examination and also as proof of
admissions therein but otherwise have no probative value. In my view,
the same considerations apply to disputes referred to oral evidence.
39.
In respect
of these disputes referred to oral evidence it bears noting that
Benjamin, in her opposing affidavit conceded that she
has no
knowledge of many of the factual allegations contained in the
founding affidavit and that she also relied on what she was
told by
Van Huyssteen. He was, however, not called to testify. The disputes
raised can at best be regarded as the disputes referred
to under (c)
and (d) at page 1163 in the
Room
Hire-case
[8]
.
40.
The
highwater-mark of Benjamin’s evidence was that she would walk
on Portion 211 for an hour early at dawn on the days when
she was
there, except for the first year of her stay on the farm when she was
working in Sedgefield. The possibility can obviously
not be excluded
that activities undertaken by Oosthuizen in respect of the waterworks
on Portion 211 could have taken place at
times when Benjamin was not
undertaking her daily walk. The reliability of her observation that
the waterworks connecting Portion
211 to Portion 210 was not utilised
during that period can furthermore be questioned since her
cross-examination showed that she
was not at all sure of the outlets
of the reservoir on Portion 211. She qualified her evidence that
there were two outlets by the
word ‘apparently’ and when
asked about the outlet, she stated that she was sure that they would
have seen the outlet
when they cleaned out the reservoir. She also
stated that she would imagine that the outlet was at the bottom of
the reservoir.
Apart from Benjamin’s limited opportunity to
observe relevant events, her powers of observations and/or
recollection can
therefore, in my view, also be doubted.
41.
In all the
circumstances, although I do not question her credibility. I conclude
that she is not really in a position to dispute
the evidence of
Schutte, Kleynhans or Oosthuizen and that her evidence is less
reliable than that of the other witnesses.
FACTUAL
BACKGROUND
42.
Taking the
evidence referred to above, including contents of the affidavit of
Oosthuizen and the probabilities into consideration
the relevant
factual background can, in my view, be summarised as follows:
42.1.
Bill and
Boet Troskie purchased Portions 210 and 211 in 1984.
42.2.
The Troskie
brothers farmed in partnership as B & B Boerdery on both Portions
210 and 211 and Oosthuizen was their farm manager
from 1984 until
1999.
42.3.
Oosthuizen
installed the engine, water-pump and piping in the Duiwe River
shortly after 1984.
42.4.
Portion 211
was sold to Five Lakes in 1997.
42.5.
After the
sale in 1997 Oosthuizen continued to manage farming activities on
Portion 210 until 1999. At all times until 1999 water
was extracted
from the Duiwe River at the weir for use on Portion 210 and the flow
of water was directed via the still existing
piping to be utilised on
Portion 210 for domestic purposes, consumption by livestock and for
irrigation purposes.
42.6.
In December
1998 Kleynhans visited Portions 210 and 211 inspected the waterworks
and ascertained that irrigation was taking place
on Portion 210 with
water from the Duiwe River directed to Portion 210 via the waterworks
in question.
42.7.
Aerial
photographs considered by Kleynhans, including a photograph taken on
26 August 1998 and a photograph taken in 2000, showed
that eleven
hectares on Portion 210 was probably under irrigation during the
period 1996 to 1999.
42.8.
The water
use that took place on Portion 211 for the benefit of Portion 210
during the qualifying period was authorised under the
previous Water
Act 54 of 1956, whether such period is regarded as 1996 to 1998 or
1997 to 1999.
[9]
42.9.
There is no
evidence of the exact volume of water that was utilised on Portion
210 during the period 1996 to 1999.
42.10.
Benjamin
permanently reside on Portion 211 from June 1997 to July 2000, but
for the first year she worked in Sedgefield and presumably
did not go
for daily walks at dawn as she did for the ensuing two years.
42.11.
From 14
November 1997 Blamire resided on Portion 211.
42.12.
After 1999,
when Oosthuizen no longer managed farming activities on Portion 210,
this property was unoccupied, until it was sold
to Schutte in 2002.
42.13.
On 2
December 2002 Schutte purchased Portion 210 at a public auction.
Advertisements prior to the auction brought Schutte under
the
impression that water utilised on Portion 210 was lawfully taken from
the Duiwe River and directed to Portion 211 via a pipeline.
This
information was also announced at the commencement of the auction.
42.14.
Shortly
after Schutte purchased Portion 210, Blamire, representing Five
Lakes, agreed that Schutte may continue to utilising the
water from
the Duiwe River as before and since that time Schutte has used this
water for domestic and irrigation purposes on Portion
210.
42.15.
As stated
in paragraph 3 above, Schutte’s attorney addressed a letter as
required in Schedule 2 of the Act to Five Lakes dated
10 June 2014.
DISCUSSION
43.
Before
dealing with the disputes referred to oral evidence, the question
whether the Minister of Water Affairs and Sanitation (‘
the
Minister’
)
and/or the Department of Water Affairs of Sanitation (‘
the
Department’
)
should have been joined as a party to the application should be
considered. I believe that the Minister and/or the Department
may
have a direct and substantial interest which may be prejudiced by a
judgment in this matter by reasons of its responsibility
for the
administration of the Act. In my view it would have been prudent for
applicant to join the Minister and/or the Department.
44.
A notice
was, however, served on the Minister accompanied by a full set of all
the papers in the application. In this notice the
Minister was
requested to indicate within ten days if he/she intended to comment
on the application or in the alternative, to join
the application as
a party. Apparently, no such steps were taken.
45.
It is also
relevant to note that applicant’s existing lawful water use is
subject to verification in terms of Section 35 and
registration in
terms of Section 34(2).
46.
I therefore
conclude that there is no question of any prejudice and that first
respondent’s plea of non-joinder should be
dismissed.
[10]
47.
The
determination of the first three disputes depends upon the question
whether applicant must prove the exact volume of water extracted
from
the Duiwe River and/or the volume of water directed to flow via the
pipeline on Portion 211 to Portion 210.
48.
The dates
when the qualifying period of two years referred in Section 32(1)(a)
of the Act commenced and terminated must obviously
be taken into
consideration. In his evidence Kleynhans testified that he initially
believed that this period is 1 October 1996
to 30 September 1998, 1
October 1998 being the date that the part of the Act dealing with
water use, except the parts dealing with
the application of
individual licences and controlled activities came into operation.
Thereafter, he came to the conclusion, apparently
having been so
advised by officials of the Department, that the qualifying period is
1 October 1997 to 30 September 1999, 1 October
1999 being the date
that the part of the
National Water Act dealing
with the application
of individual licences came into operation.
[11]
I tend to agree with Thompson that the correct period is 1 October
1996 to 30 September 1998 for the reasons advanced by him. It
is,
however, not necessary to determine this issue, because the evidence
discloses that water was in fact utilised on Portion 210
during the
full period of 1996 to 1999 covering both periods referred to above.
Section 32(1)(a)
specifically stipulates that the water use could
have taken place at any time during the qualifying period.
49.
As far as
the volume of water used is concerned, I agree with applicant that it
is not necessary for him to show that a specific
volume of water was
used during the qualifying period.
50.
In this
respect reference is made to the unreported judgment of
William
Wallace Louw N.O. and others v South African National Parks and
Another
[12]
.
That matter was an application for declaratory orders relating to the
rights of the applicants as owners of a property to use
water in
terms of registered servitudes on a neighbouring property. As in the
matter under consideration the respondent in that
matter submitted
that the applicants had to established exactly what volume of water
was taken from the water resource in that
instance. Bozalek J found
that is was not incumbent upon the applicants to prove how many
kilolitres of water was received by the
property over the relevant
two-year period. In this respect he referred to Thompson in paragraph
34 and 35 in the following terms:
‘
[34]
Thompson, at page 505
et
sequor
,
in discussing the extent of an existing lawful water use, is not
always entirely clear in this regard. He states at one point
(page
505):
“
The
extent of an existing lawful water use is not the use that could have
taken place lawfully in terms of the water laws which
were in force
when the NWA commenced. The extent is only that part that actually
took place lawfully during the qualifying period.
The part that did
not take place, or if it did take place, if it did not take place
lawfully, could not be an existing lawful water
use.”
To
the extent that this statement suggests an approach whereby the
applicants, post-1998, would be limited to the volume of water
which
was actually (lawfully) enjoyed by the later Mr. Hare during the
relevant two year period, notwithstanding, for example,
that drought
conditions may have reduced the supply to negligible proportions, I
disagree.
[35]
However, the author clarifies this aspect somewhat immediately
thereafter and on the following page when discussing the effect
of
hydrological conditions prevailing during the qualifying period.
Where these were such as to have provided a limitation on the
water
which could lawfully have been taken during the qualifying period,
this would not limit the right-holder’s right to
take greater
amounts at a later stage provided that the intention of the person
using the water during the qualifying period was
not to limit
him/herself to the lesser amount. In this regard the author writes:
“
The
extent is not the actual, maximum, minimum or average rate of water
abstracted, volume of water stored, rate of flow diverted,
or
quantity and quality of water discharged during the period. The
extent is also not nil if no water or waste was abstracted,
diverted,
stored or discharged during the period… The extent of an
existing lawful water use should be determined by asking
whether and
how the water use would have been undertaken during the qualifying
period, if certain hydrological conditions prevailed
ruing the
qualifying period. If the person would have undertaken the water use,
the manner in which the water use would have been
undertaken should
be part of the existing lawful water use. If the water use would not
have been undertaken, it should not be part
of the existing water
use.”
’
51.
In respect
of
Starke
N.O. v Schreiber
[13]
,
Bozalek J stated that the remarks of the court in that matter in
respect of the applicant’s entitlement to water were obiter
dicta. In paragraph 37 he continued as follows:
‘
Apart
from the non-binding nature of these remarks, I find myself unable
from the passage cited above, to determine with any certainty
whether
or not the learned judge was indicating that historical levels of
water use over the relevant two year period would establish
the
ceiling of later water use by the applicants. I would have difficulty
with such a proposition given that prevailing climatic
conditions
might have rendered that ceiling arbitrary or unrealistic. What is
clear from the learned judge’s approach, however,
is that users
of water in terms of an “
existing
lawful water use”
are entitled to no less water than that which they enjoyed over the
two year period prior to the introduction of the
National Water Act.’
52.
In
my view,
the same considerations apply to the quote on page 29 in the recent
unreported judgment of
Hennie
du Preez and Others v Phillip Jakobus Viljoen (Snr)
NO and
Others
[14]
where reference was made
to the
Schreiber
-case.
I am also not persuaded that the decision in
Joubert
en Andere v Benede-Blyderivier Watergebruikersvereeniging en ’n
Ander
[15]
justifies any other
conclusion.
53.
It must
also be mentioned that an appeal to the Water Tribunal against the
decision of a responsible authority on the verification
of water use
under
Section 35
is allowed in terms of Section 148(1)(e) of the Act.
‘
The
verification of water use should be based on technical evidence by
making use of various tools to identify and determine the
extent of a
water use, such as satellite imagery, aerial photography, survey
data, flow measurements and field surveys’
.
[16]
Any verification of water use can therefore be taken on appeal to a
water tribunal who would probably be qualified to consider
these
technical aspects. I cannot see on what basis it can be expected of a
court to determine volumes.
54.
Insofar as
the applicant amended his notice of motion to indicate a specific
volume, I agree that this was an unnecessary plus petitio
that can be
ignored.
55.
In respect
of the first three issues referred to above, I therefore find for
applicant. In respect of the disputes about the route
of the
servitude, I am not persuaded that the existing route should be
changed.
56.
As far as
the question of compensation payable by the applicant is concerned, I
agree with applicant that no order should be made
in this respect.
The waterworks was established in about 1984 and since that time,
with one relatively short break, the water has
been utilised on
Portion 210. Portion 211 also utilised water from the waterworks. For
these reasons I agree that no order of compensation
should be made.
COSTS
57.
I believe
that applicant was at fault in the following respects:
57.1.
By not
annexing an affidavit of Kleynhans in support of the original
application.
57.2.
By not
joining the Department of Water Affairs and Sanitation.
57.3.
By not
advising first respondent of Oosthuizen’s death at the first
opportunity.
57.4.
By not
launching an application in terms of Section 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1998 timeously.
58.
First
respondent was, in my view, entitled to oppose the application
initially. When Oosthuizen’s affidavit was filed and
taking
into consideration that Benjamin specifically stated that Oosthuizen
would be in position to assist the court, first respondent
should
have reconsidered its position at that time.
59.
In all the
circumstances and in the exercise of the discretion in that respect,
I conclude that respondent should pay 75% of applicant’s
costs.
CONCLUSION
60.
I therefore
find for the applicant and the order annexed hereto is made.
______________________________________
W.H. VAN STADEN
Acting Judge of the
High Court
[1]
2012
(5) SA 246
(SCA) para 32 at 258E-I.
[2]
Reference
was made to
S
v Ndlovu
2002
(6) SA 305
(SCA) para 18 at 318D-E where it was held that the trial
court must be asked clearly and timeously to consider and rule on
the
admissibility of hearsay evidence.
[3]
Schwikkard
Van Der Merwe
Principles
of Evidence
(3
rd
Ed) p278-283.
[4]
Stellenbosch
Farmers Winery Group Limited v Martell et Kie
2003
(1) SA 11
(SCA) para 5 at 14l-15e.
[5]
Paragraph
27.7 and 27.8 above.
[6]
Paragraph
27.12 above.
[7]
Footnote
1 above
l
oc
cit
.
[8]
Room
Hire Co. (Pty) Ltd v Jeppe Street Mansion (Pty) Ltd
1949
(3) SA 1155 (TPD).
[9]
See
paragraph 48 hereunder.
[10]
Compare
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637 (AD).
[11]
Hubert
Thompson
Water
Law
(2006
Edition) p500-501.
[12]
(CPD
Case No. 17144/2007) Judgment delivered on 12 December 2008 by
Bozalek J.
[13]
2001
(1) All SA 167
C and specifically the quote at page 184b.
[14]
(A174/2016)[2017]
ZAWCHC 113 (11 October 2017).
[15]
2007
(4) SA 80 (SCA).
[16]
Thompson
op cit page 504.