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[2018] ZAWCHC 83
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Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd and Another (20765/2017) [2018] ZAWCHC 83; 2018 (6) SA 307 (WCC) (28 June 2018)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 20765/2017
In
the matter between:
WITZENBERG
PROPERTIES (PTY)
LTD
Applicant
and
BOKVELDSKLOOF
BOERDERY (PTY) LTD
First
Respondent
THE
MINISTER OF WATER AFFAIRS AND SANITATION
Second
Respondent
Court:
Justice J Cloete
Heard:
5 February 2018, 9 and 10 May 2018
Delivered:
28 June 2018
JUDGMENT
CLOETE
J
:
Introduction
[1]
This is a dispute between neighbouring commercial
farming enterprises in a winter rainfall area known as ‘
Op
die Berg’
in the Prince Alfred Hamlet.
[2]
During the course of argument and partly as a
result of a decision taken by the second respondent (“the
Minister”) on
24 April 2018, the applicant (“Witzenberg”)
narrowed down and amended the relief sought to the following.
[3]
Witzenberg seeks an interdict against the first
respondent (“Bokveldskloof”) to prevent the latter from
taking water
from three boreholes on Bokveldskoof’s property
which are situated in close proximity to one of Witzenberg’s
dams,
for any purpose other than the uses permissible under Schedule
1 of the National Water Act 36 of 1998 (“NWA”).
[4]
On 24 April 2018 the Minister’s delegate,
the Acting Director-General of the Department of Water and
Sanitation, issued a
final determination of the extent and lawfulness
of Bokveldskoof’s existing water uses in terms of s 35(4)
of the NWA,
limiting its use of groundwater to 161 400 cubic
metres per annum. Bokveldskoof is appealing that determination in
terms of
s 148 of the NWA and may also pursue further redress by
way of judicial review in due course.
[5]
Section 148(2)(b) of the NWA suspends the
operation of the Minister’s determination under s 35(4)
pending conclusion
of the internal appeal in the Water Tribunal.
Witzenberg thus asks that the interdict sought operates until
Bokveldskoof has been
issued with a water use licence under the NWA
(which at this stage it does not have), finally authorising it to use
water in a
particular borehole, or until Bokveldskoof has exhausted
its appeal as well as any subsequent review remedies, whichever
occurs
first.
[6]
It is Witzenberg’s case that Bokveldskoof
has for a number of years in fact been limited to taking groundwater
on its property
of not more than 161 400 cubic metres per annum.
This is disputed by Bokveldskoof, hence its opposition in this
application
and its appeal against the Minister’s
determination.
[7]
It is not in dispute that Bokveldskoof has not,
and will not, limit its taking of groundwater from the three
boreholes to any of
the uses permissible under Schedule 1 of the NWA.
These pertain to the taking of groundwater for domestic use, small
gardening
(other than for commercial purposes), and watering of
grazing cattle in certain instances.
[8]
Nor is it in dispute that over the 19 week period
spanning 11 December 2017 to 23 April 2018, Bokveldskoof
abstracted
groundwater from the three boreholes in a total volume of
458 430 cubic metres. This constitutes 82.8% of the total volume
abstracted from all operating boreholes on Bokveldskoof’s
property during this period.
[9]
Despite the length of the papers and depth of the
arguments advanced, the Minister’s decision has the consequence
that the
parties are in fact engaged in the very initial stage of
their dispute. This case has evolved to the point that it is no
longer
appropriate to deal with the substantive merits. The internal
appeal process must still run its course. To delve into the Water
Tribunal’s territory at this stage would not only encroach on
the separation of powers doctrine, it could well also be tantamount
to pre-empting the decision on appeal (as well as any subsequent
judicial review). This is also Bokveldskoof’s position.
Witzenberg holds a different view, maintaining that the “discrete
issue” pertaining to the three boreholes has no relevance
in
the internal appeal. To my mind, this argument pre-supposes that
Witzenberg’s view (as well as that of the Minister as
reflected
in the April 2018 determination) prevails. I will return to this
later.
[10]
The parties
approached the matter in accordance with the test for final
interdictory relief.
[1]
In
Apleni v
Minister of Law and Order and Others
[2]
Vivier JA stated:
‘
The
interim interdicts sought would have been operative for the duration
of the appellants’ detention. In this sense it would
have had
final effect in that nothing which may subsequently have been decided
could detract from the efficacy which the orders
enjoyed while they
were in force. However, on the facts of the present applications the
grant of interim interdicts did not involve
a final determination of
the rights of the parties and did not affect such
determination…although final in effect, the interdicts
sought
were thus certainly not final in substance. The fact that the
determination of the issues would only have taken place after
the
risk of injury had passed was obviously no bar to the granting of the
orders…’
[3]
[11]
It is
settled law that an applicant for final relief must show: (a) a clear
right; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of similar protection by any
other ordinary remedy:
Hotz
and Others v University of Cape Town.
[4]
[12]
It is Bokveldskoof’s case that Witzenberg
has no
locus standi
in
respect of the relief sought and that, in any event, it has failed to
establish any of the requirements for a final interdict.
Existing
lawful water use
[13]
The concept of ‘
existing
lawful water use’
was introduced by
ss 4, 22 and 32 to 35 of the NWA. In essence it means that a
user is permitted to continue with any actual
lawful use which
occurred at any time during a period of two years immediately prior
to the date of commencement of the NWA, i.e.
1 October 1998 (‘
the
qualifying period’
).
[14]
Witzenberg’s case is that Bokveldskoof,
acting on a flawed interpretation of the NWA, has caused multiple
boreholes to be
sunk on its property to abstract huge volumes of
groundwater, the extent of which (a) it has never declared to
the authorities;
(b) bears no relation to the volume actually
abstracted during the qualifying period; and (c) which
Bokveldskoof wrongly
maintains is limited only by the size of land
allegedly cultivated during the qualifying period, and which it can
therefore increase
or expand at will.
[15]
Witzenberg contends that, on Bokveldskoof’s
own version in a previous application to the responsible authority
under s 35
of the NWA, its existing lawful water use is limited
to 161 400 cubic metres per annum for groundwater. The present
application
was sparked by Bokveldskoof’s drilling of borehole
3 (“Nuwe Boorgat”) in 2017. This borehole, together with
boreholes
1 (“Nuwe Dam”) drilled in 2010 and borehole 2
(“Fancourt”) in 2004 are the 3 boreholes in close
proximity
to one of Witzenberg’s dams, and yield far more than
that volume per annum.
[16]
Bokveldskoof’s case is that at all relevant
times it abstracted and used water from the boreholes on its property
lawfully
in terms of the NWA. It maintains that during the qualifying
period it was authorised to irrigate a total of 201 hectares, whilst
at present only 112 hectares are under actual irrigation (so that, in
effect, it is presently only utilising 55.5% of its total
maximum
water use entitlement under the NWA).
[17]
According to Bokveldskoof, the irrigation of the
permissible 201 hectares is done from two water sources in
conjunction with each
other: from surface water through
infrastructure directing rainfall on the adjacent mountainous area
into storage dams located
on the property, and from an aquifer (by
way of 9 productive boreholes on the property which supply water to
the storage dams from
where the irrigation takes place through a
pumping system).
[18]
Bokveldskoof maintains that the ‘
extent’
of its water use entitlement equates to that volume of water required
for the irrigation of a maximum of 201 hectares of land,
from either
source or a combination of these two sources. Accordingly, the
‘
extent’
of a water use entitlement, upon a proper contextual interpretation,
can be determined by way of more than one method of measurement,
and
the standard irrigation practice historically utilised in the area
(including that of Witzenberg itself) has been to rely on
both
surface water and ground water in conjunction with each other, the
one supplementing the other depending on the hydrological
and
climatic conditions prevailing in a particular season. If it
transpires during any season that the available surface water
is not
sufficient for the irrigation of lawfully developed hectares on a
farm, it is supplemented by groundwater. In the result
the actual
volumes of surface water and groundwater used vary from season to
season. Whatever volume comes from whichever source,
this water is
used reasonably and beneficially for the lawful irrigation of a
specific and measured area of land.
[19]
According
to Bokveldskoof’s Mr Phillipus Van Zyl, when he had to
complete the application referred to by Witzenberg,
he was confronted
with the problem that the new regulatory dispensation, reflected in
the prescribed form, did not fully accommodate
the characteristics of
the existing lawful water use enjoyed by Bokveldskoof under the old
Act.
[5]
He was told that he had
to make a distinction between the two water sources, to estimate the
relative percentage of water used
from each water source during the
qualifying period and that accordingly:
‘
On
that impossible basis I derived at these figures, representing an
estimate of the average position over a few years and not reflecting
what the reality would have been in a drought or under different
hydrological conditions.’
[20]
Herein lies the nub of the dispute. The
Minister’s determination under s 35 of the NWA makes no
reference to a specific
number of boreholes nor to any specific
identified borehole(s) on Bokveldskoof’s property. It merely
determined that the
existing lawful water use for Bokveldskoof is
1 012 925 cubic metres per annum for surface water and 161 400
for groundwater.
The Minister earlier filed an explanatory affidavit
in which, in general terms, her Department agrees with the
interpretation advanced
by Witzenberg.
[21]
It is this very same issue which will form the
substance of Bokveldskoof’s internal appeal as well as any
subsequent judicial
review. Witzenberg itself expressly acknowledges
that this dispute involves an interpretation of the relevant
provisions of the
NWA.
[22]
The determination of the dispute is thus not, as
I see it, a “discrete issue” pertaining to the lawfulness
or otherwise
of Bokveldskoof’s abstraction of groundwater from
3 specific boreholes in close proximity to one of Witzenberg’s
dams. The abstraction of water from these boreholes is inextricably
linked to whether or not Bokveldskoof is entitled to abstract
groundwater exceeding 161 400 cubic metres per annum. One cannot
be determined to the exclusion of the other. Herein lies
Witzenberg’s
fundamental problem in persisting with relief on the merits, in the
knowledge that this very issue is presently
the subject of an
internal appeal and may in future be the subject of judicial review.
I am accordingly not persuaded that it is
appropriate for this court
to make any such determination at this stage.
Locus
standi
[23]
Witzenberg argues that it derives legal standing
on the basis that it is the registered owner of the neighbouring
farm, and that
as a neighbouring water user it is dependent on water
available in the same drainage region. It maintains therefore that it
is
an entity, or at least a member of a class of persons, in whose
interest the restrictions on the use of groundwater were imposed
under the NWA.
[24]
Given that
Witzenberg seeks interdictory relief in pursuit of its own interests,
the issue of legal standing is approached in accordance
with the
principles set out in
Patz
v Green & Co
[6]
read with
Roodepoort-Maraisburg
Town Council v Eastern Properties (Prop) Ltd
[7]
,
which were encapsulated in
Latsky
& Another v Showzone CC & Others.
[8]
In essence, these principles are:
24.1 When it appears that
a statute was enacted in the interest of a particular person or any
class of persons, a party who shows
that he or she is one of such
class of persons, and seeks judicial intervention by way of
interdictory relief premised on the statute,
is not required to show
harm as a result of a contravention of the statute, such harm being
presumed;
24.2 However, when a
statutory duty was imposed, not in the interest of a particular
person or a particular class, but in the public
interest generally,
the applicant must show that he or she has sustained or apprehends
actual harm in order to obtain interdictory
relief on the ground of
breach of the statute.
[25]
As Cameron
J put it in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd
:
[9]
‘
[33]
The separation of the merits from the question of standing has two
implications for the own-interest litigant. First, it signals
that
the nature of the interest that confers standing on the own-interest
litigant is insulated from the merits of the challenge
he or she
seeks to bring. An own-interest litigant does not acquire standing
from the invalidity of the challenged decision or
law, but from the
effect it will have on his or her interests or potential interests.
He or she has standing to bring the
challenge even if the decision or
law is in fact valid.
But
the interests that confer standing to bring the challenge, and the
impact the decision or law has on them, must be demonstrated.
[34]
Second, it means that an own-interest litigant may be denied standing
even though the result could be that an unlawful decision
stands.
This is not illogical. As the Supreme Court of Appeal pointed
out, standing determines solely whether
this
particular litigant is
entitled to mount the challenge: a successful challenge to a public
decision can be brought only if “the
right remedy is sought by
the right person in the right proceedings”. To this observation
one must add that the interests
of justice under the Constitution may
require courts to be hesitant to dispose of cases on standing alone
where broader concerns
of accountability and responsiveness may
require investigation and determination of the merits. By corollary,
there may be cases
where the interests of justice or the public
interest might compel a court to scrutinise action even if the
applicant’s standing
is questionable. When the public interest
cries out for relief, an applicant should not fail merely for acting
in his or her own
interest.
[35]
Hence, where a
litigant acts solely in his or her own interest, there is no broad or
unqualified capacity to litigate against illegalities.
Something more
must be shown
.’
[emphasis
supplied]
[26]
The preamble to the NWA expressly recognises that
(a) water belongs ‘
to
all people’
; and
(b) national government has overall responsibility for and authority
over the nation’s water resources and their use,
including the
equitable allocation of water for beneficial use.
[27]
Witzenberg cited the Minister as second
respondent purely because she has ‘
a
substantial and direct interest in the subject matter of these
proceedings and is accordingly a necessary party hereto’.
Section 3 of the NWA stipulates that national government, acting
through the Minister, is the public trustee of the nation’s
water resources. It is clearly for this reason that the Minister is
empowered, under Part 3 (ss 32 to 35) of the NWA to determine,
where necessary, an ‘
existing lawful
water use’
.
[28]
Chapter 16 of the NWA deals with offences and
remedies and provides in its preamble that:
‘
In
common with other Acts of Parliament which aim to make non-compliance
a criminal offence, this Chapter lists the acts and omissions
which
are offences under this Act, with the associated penalties. It also
gives the courts and water management institutions certain
powers
associated with prosecutions for these offences, such as the power to
remove the cause of a stream flow reduction.’
[29]
Section 151 lists the offences which render a
person liable for prosecution. In particular s 151(1)(a)
prohibits any person
from using water otherwise than as permitted
under the NWA, and s 151(1)(j) prohibits any person from
unlawfully and intentionally
or negligently committing any act or
omission which detrimentally affects or is likely to affect a water
resource.
[30]
Sections 152 and 153 authorise a court, after
convicting any such person, to hold an enquiry into compensation for
harm, loss or
damage suffered by any affected person and to order the
accused to pay damages to that person and/or the cost of any remedial
measures
required.
[31]
Section 155 stipulates that:
‘
155
Interdict or other order by High Court
A
High Court may,
on
application by the Minister or the water management institution
concerned, grant an interdict
or any other appropriate order against any person who has contravened
any provision of this Act,
including
an order to discontinue any activity
constituting the contravention and to remedy the adverse effects of
the contravention.’
[emphasis
supplied]
[32]
The parties
agree that the NWA introduced a fundamental reform of the law
relating to water resources by moving away from the riparian
principle of preferential and hierarchical water use rights to an
administered authorisation system for circumscribed water uses,
in
the interests of all water users, thereby moving the traditional
“water law” from the domain of private law to that
of
public law.
[10]
[33]
Bokveldskoof
thus argues that the above contextual considerations support the
conclusion that the provisions dealing with entitlement
to water use
under the NWA are intended to provide for the controlled use of water
for the general benefit of the public or, put
differently, in the
public interest generally. Unlike, for example, the National
Environmental Management Act, which expressly
legislates for the
legal standing of private persons to enforce environmental laws for
own interest or in public interest,
[11]
the NWA contains no comparable provision.
[34]
It is thus submitted that any act prohibited by
the NWA does not, without more, entitle Witzenberg as a private
entity to interdictory
relief for a breach of provisions of the NWA.
In order to obtain such relief, it was necessary for Witzenberg to
show that a breach
has occasioned it harm, or is likely to do so, but
Witzenberg has failed to demonstrate this (I deal with this later).
[35]
Apart from
the grounds upon which it bases its legal standing, Witzenberg
advances two arguments. In the first instance it relies
on
Sheffield
Electro-Plating and Enamelling Works Ltd v Metal Signs and Nameplates
(Pty) Ltd
[12]
in contending that the prohibited actions covered by a statute (and
at which the legal action is directed) are not required to
have been
passed solely in the interest of a specific person or class of
persons – it will suffice if it can be said that
the conduct
was prohibited ‘
partly
or wholly in the interests of the applicant’
.
[36]
However in
Sheffield
the court was dealing specifically with an alleged contravention of
the Merchandise Marks Act 17 of 1941, and it was with reference
to
that particular statute
that it was held to have been enacted for the protection of merchants
and manufacturers as well as the general public. This finding
was
clearly not intended to be elevated to a principle of general
application.
[37]
Second,
Witzenberg relies on
Lester
v Ndlambe Municipality
[13]
in arguing that it is the duty of this court to uphold the doctrine
of legality, which enjoins it not to countenance an ongoing
statutory
contravention and criminal offence.
[38]
However in
Lester
it was common cause
[14]
that
his property was an illegal structure, having been erected without
approved building plans. This fact was of itself a contravention
of
s 4(1) of the National Building Regulations and Building
Standards Act,
[15]
and s 4(4)
thereof rendered it a criminal offence. At issue in the case was
whether or not the High Court was correct in finding
that it had a
discretion to issue a consequent demolition order under s 21 of
the Act. The Supreme Court of Appeal held that
no such discretion
existed and that:
‘
Absent
such discretion, the court below simply had to uphold the rule of
law, refuse to countenance an ongoing statutory contravention
and
enforce the provisions of the Act.’
[16]
[39]
In the present matter it is common cause that no
criminal charge has been laid against Bokveldskoof by any official of
the Department
(or, for that matter, by any other person). Given the
main, unresolved, dispute between the parties about whether or not
Bokveldskoof
has acted unlawfully at all, and the appeal process that
is underway, this court is in no position to simply assume in
Witzenberg’s
favour that Bokveldskoof has contravened a statute
and is thus committing a criminal offence.
[40]
Having regard to the above I agree with
Bokveldskoof that Witzenberg does not fall into the first category
referred to above, but
rather the second. The NWA was enacted for the
benefit of the general public and not in the interests of a
particular person or
class. That Witzenberg coincidentally is an
entity forming part of the general public takes the matter no
further.
[41]
It is thus necessary to consider whether
Witzenberg has demonstrated that it has sustained or apprehends
actual harm.
[42]
Witzenberg’s complaint is set out in its
founding affidavit as follows:
‘
68.
The Applicant has been concerned about the negative effect which the
abstraction of groundwater from boreholes that had been
sunk in close
proximity of the Vleidam might have on the volume of water that has
been collected in and is being stored in the
dam itself. As Vleidam
is not lined, the Applicant is concerned that stored water would be
abstracted or siphoned off via the boreholes
concerned.
68.1
In order to assist the Applicant in evaluating this eventuality, the
Applicant urgently requested specialist hydrogeologists,
Messrs
Geohydrological and Spatial Solutions (Pty) Ltd (“GEOSS”)
to investigate the likelihood of surface water which
had been
collected in and is being stored in Vleidam, being abstracted or
syphoned off via the boreholes.
68.2
In this regard I refer the Honourable Court to the report of Mr Dale
Barrow, a specialist hydrogeologist and director of GEOSS…
68.3
I draw the attention of the Honourable Court to his finding that,
given the proximity of the new borehole to the dam and the
shallow
depth of the first water strike, it is likely that Borehole 1
[17]
and
the dam are connected and that abstraction of water from that
borehole will increase
the
flow from the borehole to the dam
.
68.4
I also point out that he is of the view that the same would apply to
additional boreholes (such as Boreholes 1 and 2) drilled
proximal to
the dam and adjacent wetland areas.
68.5
I therefore submit that the taking of water by means of Boreholes 1,
2 and the new borehole (Borehole 3) is likely to have
a direct
detrimental effect on the volume of water which is being stored by
the Applicant in the Vleidam.’
[emphasis
supplied]
[43]
Photographs of Vleidam (the dam on Witzenberg’s
property in close proximity to the boreholes) were annexed to the
founding
affidavit, and showed that it was already almost empty. In
its answering affidavit Bokveldskoof alleged that this had been the
case for almost a year before ‘
which is
understandable given that the Applicant has been constantly and
continuously pumping whatever water remains in the Vleidam
to one of
the other storage dams on the farm… located on higher ground
(and from where the Applicant presumably irrigates
its orchards) and
given the drought we are currently experiencing.’
This allegation was not challenged by Witzenberg in reply.
[44]
The Barrow report is merely a desktop study. It
states that the borehole drilled in October 2017 ‘
intersected
water strikes’
on Bokveldskoof’s
property, that Vleidam is ‘
reportedly
unlined’
, and that ‘
the
eastward dipping lithological contacts are likely to be recharged by
the dam, and the newly drilled borehole has most likely
intersected
water bearing zones that are directly recharged by the proximal dam’.
[45]
Although Barrow’s opinion was
self-evidently speculative, he concluded that:
‘
The
abstraction from the newly drilled production borehole will result in
a drop in water level at the borehole. This will increase
the
hydraulic gradient towards the borehole. Flow is directly
proportional to hydraulic gradient, and assuming a constant hydraulic
conductivity, this will result in increased flow
from
the dam towards the borehole
.
Given
the proximity of the borehole to the dam (16m) and shallow depth of
the first water strike (24m), it is likely that the borehole
and dam
are connected, and that abstraction from the borehole will increase
the flow
from
the borehole to the dam
.
This assumes that there are no impermeable layers or flow barriers
between the dam and the borehole, or underlying the dam.’
(emphasis
supplied)
[46]
This
glaring material contradiction was raised with counsel for Witzenberg
during argument, but remains unexplained, apart from
his suggestion
that it was an obvious error. This is not good enough. Barrow deposed
to an affidavit confirming the contents of
his report. It was also an
annexure to the founding affidavit, and moreover Witzenberg’s
deponent, Mr Nicolaas Verhoef, himself
stated that abstraction from
the borehole will increase the flow from the borehole to the dam (and
not vice versa). Accordingly
little if any weight can be attached to
the Barrow report.
[18]
[47]
In its answering affidavit Bokveldskoof reserved
its right to supplement its papers by obtaining an expert report on
the connectivity
between the three boreholes and the dam. It
subsequently filed the report of Mr Jan Myburgh of AGES Omega (Pty)
Ltd together with
his confirmatory affidavit.
[48]
Myburgh is a senior hydrogeologist with 25 years’
experience. He confirmed that two sources were sampled at the dam and
the
new borehole. The samples were sent to UIS Laboratories for SANS
241 analysis, and an additional three samples were taken from the
dam, new borehole and another existing borehole nearby and submitted
to iTemba Laboratories for Oxygen 18 and Deuterium stable
isotope
analysis. He reported that:
‘
From
the stable isotope analysis results indicated in Table 2 and Figure
4, the water from the boreholes are deprived of Deuterium
and oxygen
– 18 when compared to the concentrations in the Dam water. The
heavier or more Deuterium enriched dam water indicates
that it has
evaporated more than the borehole water that has a lower
concentration of Deuterium.
There
is therefore a clear difference in water quality and isotope
signature between the dam water and groundwater.’
[49]
Myburgh stated that there will always be a
hydraulic link between groundwater and surface water and that his
report was not intended
to prove that there is no connection in this
case. He cautioned however that the regulating authority should
review all available
information and state what is in addition
required for it to responsibly consider whether water use can be
authorised at borehole
3 and at what rate and duration, since ‘
to
eliminate this borehole based just on the proximity to a surface
water body without looking at specific on-site conditions could
create a precedent that can negatively impact numerous groundwater
users in this area’.
[50]
For reasons that are not apparent Witzenberg did
not take up the challenge. It did not put up any further expert
opinion on the
issue of connectivity based on independently obtained
scientific evidence. Instead, it relied on Myburgh’s report to
support
the contention that he ‘
accepts
the likelihood that the borehole and dam are connected’.
In my view, the fact of connectivity, without more, is of little, if
any, assistance in determining whether Witzenberg has demonstrated,
on a balance of probabilities, that it is suffering or apprehends
actual harm because water is being siphoned off from the dam
to the
borehole.
[51]
I thus agree with Bokveldskoof that, at best for
Witzenberg, all that it has demonstrated is a theoretical possibility
that the
three boreholes are siphoning off water from the dam.
Witzenberg has according failed to show, on a balance of
probabilities, that
it has sustained or apprehends actual harm.
[52]
In
Areva
NP Inc v Eskom Holdings
[19]
the Constitutional Court, referring to
Giant
Concerts
,
stated that:
‘
[41]
It seems to me that, part of what this court held in
Giant
Concerts
was that,
where a litigant has failed to show that it has standing, the court
should, as a general rule, dispose of the matter without
entering the
merits and that it should only enter the merits in exceptional cases
or where the public interest really cries out
for that. It does not
appear to me that this is a case which cries out for that. In saying
this, I am not suggesting that on the
merits the challenge is
necessarily without merit…’
[53]
Witzenberg
has not approached the matter on the basis that it is an exceptional
case or that the public interest cries out for the
interdictory
relief to be granted. In the particular circumstances of this matter
the challenge on the substantive merits is already
the subject of the
internal appeal. However, if I am incorrect, the interdict sought
cannot be granted because Witzenberg has failed
to establish an
injury actually committed or reasonably apprehended. It follows that
it is not necessary to consider whether Witzenberg
has any other
clear right as well as the absence of similar protection by any other
ordinary remedy.
[20]
[54]
In the result the following order is made:
‘
The
application is dismissed with costs, including any reserved costs
orders, as well as the costs of two (2) counsel where employed.’
_______________________
J
I CLOETE
[1]
i.e. the Plascon-Evans rule.
[2]
1989 (1) SA 195
(AD) at 200I-201D.
[3]
See also
BHT
Water Treatment (Pty) Ltd v Leslie and Another
1993 (1) SA 47
(WLD) at 54J-55E.
[4]
2017 (2) SA 485
(SCA) at para [39].
[5]
The repealed Water Act 54 of 1956 which was replaced by the NWA.
[6]
1907 TS 427.
[7]
1933 AD 87
at 95-96.
[8]
2007 (2) SA
48
(C) at para [13].
[9]
2013 (3) BCLR 251 (CC).
[10]
See also
S v Mostert and
Others
2010 (2) SA 586
(SCA) at para [10] and
Makhanya
NO and Another v Goede Wellington Boerdery (Pty) Ltd
[2013]
1 All SA 526
(SCA) at para [38].
[11]
Section 32(1)(a) and (c) of Act 107 of 1998.
[12]
1949 (1) SA 1034 (W).
[13]
2015 (6) SA 283 (SCA).
[14]
See para [20].
[15]
103 of 1977
[16]
At para [28].
[17]
This is a typographical error. It should read “Borehole 3”.
[18]
See also
Standard Bank of
South Africa Ltd v Border
(2105/2014)
[2015] ZAECGHC 14 (11 February 2015) at para [29] where the court,
albeit in a different context, dealt with defences
based on
speculation in the absence of factual evidence confirming same.
[19]
2017 (6) SA 621
(CC).
[20]
Hotz
(
supra
)
fn 4.