Le Roux NO and Others v Botha NO and Others (5788/2016) [2018] ZAWCHC 86 (3 July 2018)

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[2018] ZAWCHC 86
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Le Roux NO and Others v Botha NO and Others (5788/2016) [2018] ZAWCHC 86 (3 July 2018)

Edited grammatically after delivery
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 5788/2016
Before: The Hon. Mr Justice Binns-Ward
Hearing: 6-7, 27-28 March 2018
Judgment:
3 July 2018
In
the matter between:
CAREL
WYNAND LE ROUX
N.O.
First
Applicant
NIEL
FICK
N.O.
S
econd
Applicant
ANDRONIKUS
GRIESSEL
N.O.
Third
Applicant
(In
their capacity as the trustees of the
GOUDYN
PLASE TRUST (IT221/97))
and
THEUNIS
CHRISTOFFEL BOTHA
N.O.
First
Respondent
THEUNIS
CHRISTOFFEL BOTHA (Jnr)
N.O.
Second
Respondent
HILDE
BOTHA
N.O.
Third
Respondent
(In
their capacity as the trustees of the
T
C BOTHA TRUST (IT318/97))
THEUNIS
CHRISTOFFEL
BOTHA
Fourth
Respondent
MINISTER
OF WATER AND
SANITATION
Fifth
Respondent
MEC
ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT
PLANNING, WESTERN
CAPE
Sixth
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
The Le Roux brothers (to whom, for
convenience, I shall hereinafter refer by their respective forenames,
Andries and Schalk) purchased
the farm Goudyn 619 from their father
in 1983 and acquired ownership of the property in equal undivided
shares.  The property
so acquired was subsequently subdivided
into four parcels of land, namely Portions 1, 2, and 3, and the
Remainder of the farm Goudyn
619.  In 1987 the brothers
concluded an agreement in terms of which the jointly owned land was
partitioned.  The
agreement provided that Andries would obtain
sole ownership of Portions 1 and 2 and the Remainder, and Schalk
would get exclusive
ownership of Portion 3.  The relevant
transfers giving effect to the partition agreement were registered
during 1990 in terms
of deed of division transfer T33043/90.
Notwithstanding the division, the brothers for 14 years thereafter
continued to farm
the entire farm effectively as a single unit.
In 2007, as will be described below, Andries transferred title to his
portions
of the land to the Goudyn Plase Trust.  At all times
until 2012 the water use arrangements between the divided parts of
the
land continued in practice as before the division.
[2]
There are three dams on the land.
They were referred to in the evidence as ‘dam 1’,
‘dam 2’ and
‘dam 3’, respectively.  The
dams were built by the brothers’ father in or about 1969-1970.
They were
constructed for the purpose of storing water for irrigation
purposes.  The dams were (and still are) filled with water
abstracted
from the Wolwenkloof River (also called the Waterkloof
River).  The river runs across part of what became Portion 3 and
thereafter
flows over the Remainder to its junction with the Holsloot
River, which is on the Remainder.  The relative positions of the

respective portions of the farm, the dams and the rivers are depicted
on the plan inserted at paragraph [17]
below.
It will be noted that the dams were not constructed in a
streambed, and that it is accordingly necessary to lead the

abstracted water to them by artificial means.
[3]
The current litigation is between the
successors in title to Andries and Schalk as owners of the land. It
is about the rights of
the parties to abstract water from the
Wolwenkloof River and lead it overland to fill the storage dams on
Portions 1, 2 and 3 of
the farm.
[4]
Andries’ son, Mr Carel Le Roux,
currently farms those portions of the land now registered in the name
of the Goudyn Plase
Trust.  He is one of the three trustees of
the trust.   The trustees are the applicants in the case
in
nomine officii
.
[5]
Schalk sold Portion 3 to the TC Botha
Trust in 2012.  It is currently farmed by Mr Theunis Botha, who
is the fourth respondent.
He and his two co-trustees of the
TC Botha Trust have been cited
in
nomine officii
as the first to third
respondents.
[6]
The Minister of Water and Sanitation and
the MEC, Environmental Affairs and Development Planning (Western
Cape) were cited as the
fifth and sixth respondents, respectively.
Apart from the filing by the fifth respondent of a preliminary
affidavit reserving
her rights to deliver an answer after
consideration of the answering papers of the first to fourth
respondents, the fifth and sixth
respondents have not, however, been
active participants in the litigation.
[7]
The
applicants have sought the following relief in terms of their notice
of motion (as amended):
… ’
n bevel:
1.
Wat verklaar dat die
Applikante, in hul hoedanigheid as trustees indertyd van die GOUYDYN
PLASE TRUST (Trust Nr IT221/97), geregtig
is om ter uitoefening van
die serwituutregte oor Gedeelte 3 van die Plaas Goudyn Nr 619,
Administratiewe distrik Worcester, Wes-Kaap
Provinsie (hierna
“
Gedeelte 3”)
wat geregistreer is ten gunste van die Applikante se eiendomme, synde
Gedeeltes 1 en 2 en die Restant van die bogenoemde plaas
(hierna “
die
Applikante se geregistreerde serwituutregte
”),
water uit die Wolvenkloofrivier te onttrek deur middel van ’n
keerwal wat aangebring is of aangebring staan te word
op Gedeelte 3,
(a) soos aangedui op Inlassing 1 op Kaart 9314/87 (Plan 12078), soos
aangeheg by Akte van Verdelingstransport T33042/1990
en Akte van
Transport T97275/2007,
alternatiewelik
(b) op die plek waar die keerwal aangebring was alvorens dit deur die
vloed van 15 November 2013 beskadig  is ( hierna “
Applikante
se serwituutkeerwal
”);
[1]
2.
Wat die Eerste tot die
Derde Respondente as trustees indertyd van die T C BOTHA TRUST (Trust
Nr 318/97) en die Vierde Respondent
(hierna die “
Eerste
tot Vierde Respondente
”)
verbied om in te meng met of afbreuk te doen aan die uitoefening deur
die Applikante van die Applikante se serwituutregte;
[2]
3.
Wat die Eerste tot
Vierde Respondente gelas om onverwyld:
3.1 die volle vloei van alle water afgekeer deur die
Applikante se serwituutkeerwal in die Wolvenkloofrivier op Gedeelte 3
ongestoord
en onbelemmerd te laat afvloei in die Applikante se
serwituutslote en pyplyne op en oor Gedeelte 3 met inbegrip van die
bedryf
deur die Applikante van die uitkeersluise in die verdeelkas by
punt s op serwituutsloot tsv en by punt h op serwituutsloot aa bb,

soos aangedui op voormelde Kaart 9314/87;
3.3 die Applikante toe te laat om
yster of staal sluisplate wat voorheen verwyder is vanaf die
verdeelkas by punt s op die serwituutsloot
tsv en by die serwituut
uitkeersluis by punt
h
op die serwituutsloot
aa
bb,
soos aangedui op gesegde Kaart 9314/87 te vervang, te plaas en te
stel ten einde uitvoering te gee aan die waterbeurte soos uiteengesit

en verduidelik in paragrawe 37, 38 en 39 van die funderende
eedsverklaring van CAREL WYNAND LE ROUX;
[3]
3.4 Die uitkeerwal of –struktuur wat in die
Wolvenkloofrivier stroomop van die Applikante se serwituutwal
aangebring is af
te breek,
alternatiewelik
, uit bedryf te stel
op ’n wyse wat sal verhoed dat enige water daardeur uit die
gemelde rivier geneem of weggelei kan word;
3.5 Die keerwalle of –strukture
wat in die Wolvenkloofrivier stroomop van die Applikante se
serwituutwal aangebring en geskep
is ten einde water in die rivier op
te dam of te gelei na die uitkeerwal waarna in paragraaf 3.3 hierbo
verwys is te verwyder en
af te breek,
alternatiewelik
,
uit bedryf te stel op ’n wyse wat sal meebring water wat in die
rivierbedding vloei vrylik en ongestoord na die Applikante
se
serwituutkeerwal sal vloei;
[4]
[8]
Dam 1 is on Portion 1 of the original
farm.  Portion 1 (the applicants’ property) is a small
sliver of land, only 11 hectares
in extent.  It is rather
inconveniently sequestered from the Remainder and from Portion 2
(also the applicants’ property)
by Portion 3 (the respondents’
property).  Portion 1 is not farmed.  Its only practical
purpose is to house dam 1.
It is strikingly apparent from
the charts that were put in evidence that the reason for the
allocation of Portion 1 to Andries
under the partition agreement must
have been to give him the benefit of the water stored in dam 1
to irrigate the land on
the other two portions owned by the
applicants.  That much is confirmed by the nature of the
servitutal rights registered
against Portion 3 in favour of the
Remainder and Portion 2 in terms of the partition agreement.  I
shall describe them
in detail presently, but, amongst other matters,
they give the owner of the Remainder the right to pipe water from
dam 1 across
Portion 3 to the Remainder and also afford the
right to the owner of Portion 2 to lead water by means of a furrow
over Portion
3 to the dam on Portion 2.  There is, however, no
notarial tie between Portion 1 and either of the other two portions
of the
farm currently owned by the applicants.  The registered
servitudes gave formal effect to some of the practical water-related

arrangements that were already in place on farm Goudyn 619 at
the time that the division agreement was entered into.
[9]
Dam 1 is fed with water that is diverted at
a weir constructed on the Wolwenkloof River where it runs over
Portion 3.  The
diverted water is thus led over Portion 3 to dam
1 and, as mentioned, it can be piped from there across another part
of Portion
3 to the Remainder or to Portion 2.  The means by
which water is procured to fill dams 1 and 2 are secured by
servitutal rights
of
aquaehaustus
(drawing water) and
aquaeductus
(leading water) registered in favour of Portions 1 and 2 and the
Remainder against the title deeds of Portion 3.
[10]
Dam 3 is on Portion 3.  It is by far
the largest of the three storage dams.  It is situated on part
of the boundary of
the respondents’ property with Portion 1,
and in very close proximity to dam 1.  Historically, dam 3 was
filled with
excess water after dam 1 had filled.  The excess
water was led to dam 3 by means of a furrow or sloot from dam 1.

This practice was maintained after the partition of the land between
the two brothers, and continued until Andries decided unilaterally
to
fill in the connecting sloot.  That happened in 2012, shortly
before the transfer by Schalk of Portion 3 to the first to
third
respondents in their capacity as the trustees of the TC Botha
Trust.
[11]
It is alleged by the respondents, and
having regard to the surrounding circumstances, supported by the
probabilities, that the connecting
sloot was filled in as an act of
pique because of Andries’ unhappiness with Schalk’s sale
of Portion 3 to an outsider,
rather than to Andries or the Goudyn
Plase Trust.  The respondents’ purchased the property for
R12 million, as
opposed to the mere R5 million that Andries
was willing to give for it.
[12]
It is clear from the evidence that
neighbourly relations between the new owners of Portion 3 and Andries
and his son, Carel, have
been antagonistic, to say the least, since
the sale of Portion 3 to the respondents.  There has been
previous unresolved litigation
between them or their respective
family trusts concerning the use of the weir on the Wolwenkloof River
and also disputes about
rights of road access.  It is evident
that the atmosphere has been such that emotion would tend to prevail
over pragmatism
and reason.
[13]
Dam 2 is on Portion 2.  As mentioned,
it is also fed by water diverted from the Wolwenkloof River at the
aforementioned weir
and led over Portion 3.
[14]
Two neighbouring farms, one of which is
owned by the TC Botha Trust (Portion 32 of the Farm Goudyn No. 418)
and the other by Mr
Piet Le Roux (Farm Goudyn No. 697), also
draw water from the Wolwenkloof River at the place from which the
dams on Goudyn
619 are filled.  These lower lying properties
obtain the water in the exercise of servitutal rights obtained long
before Andries
and Schalk became owners of the land.  The
division of water between these two farms and Goudyn was effected by
way of a simple
diversion work at a point in the furrow between the
weir and dam 1 (at point
s
on the plan) and a sluice (at point
h
on the plan).  The diversion works are used to divert the water
into a channel leading to the two farms at certain times,
in other
words by way of a ‘leibeurt’ or ‘waterbeurt’
arrangement.
[5]
The path by which water diverted by the weir on the river is taken to
the two farms is congruent for the greater part of
its length with
that by which water is taken to dam 2 in terms of the servitudes to
be described in paragraph [16], below.
[15]
The Wolwenkloof River is fed from the
catchment area of the surrounding Wolwenkloof Mountains, which,
respondents aver, provides
a bountiful supply of water.  They
and Schalk testified that the water flowing in the river has
historically been more than
sufficient to supply the needs of the all
the adjoining landowners, even in times of drought.
[16]
Various
praedial servitudes
[6]
were freshly registered against Portion 3 in
favour of Portions 1 and 2 and the Remainder, respectively, when
Portion 3 was transferred
to Schalk pursuant to the partition
agreement.  They fall to be identified with reference to Map
No. 9314/87 (Plan 12078)
that was attached to the deed of
partition transfer (T 33042/90, dated 12 June 1990).
They record that Portion
3 was transferred to Schalk –
Onderhewig verder aan die volgende nuut opgelegde voorwaardes opgelê
by die onderverdeling van die eiendom hierdeur getransporteer:
(1) Die eienaar van GEDEELTE 1 van die Plaas GOUDYN Nr. 619 Groot
11.0137 Hektaar gehou deur Akte van Verdelingstransport Nr. T

33043/90 sal geregtig wees op:
(a) [’n Padserwituut oor die eiendom hierdeur getransporteer].
(b) Pyplyn serwitute 3 meter wyd oor die eiendom hierdeur
getransporteer die middellyne waarvan voorgestel is deur die lyne
de
ff gg hh
en
ut
op gesegde Kaart Nr, 9314/87 (Plan 12078)
hieraan geheg.
(c) Watersloot serwitute oor die eiendom hierdeur getransporteer die
middellyne waarvan voorgestel is deur die lyne
tsv
en
sr
op gesegde Kaart Nr, 9314/87 (Plan 12078) hieraan geheg.
(d) Die reg om ’n serwituut keerwal aan te bring op die eiendom
hierdeur getransporteer soos aangedui in die inlassing 1
op gesegde
Kaart Nr, 9314/87 (Plan 12078) hieraan geheg.
(e) Die reg om met sy werknemers of kontrakteurs
die eiendom hierdeur getransporteer binne te gaan vir die doeleindes
van inspeksie,
instandhouding, en reparasie van die paaie, pyplyne,
vore en keerwal soos hierbo uiteengesit.
[7]
(2) Die eienaar van GEDEELTE 2 van die Plaas GOUDYN Nr. 619 Groot
54.7594 Hektaar gehou deur Akte van Verdelingstransport Nr. T

33043/90 sal geregtig wees op:
(a) [’n padserwituut oor die eiendom heirdeur getransporteer].
(The road servitude in favour of Portion 2 was registered
in exactly
the same terms as that in registered in favour of Portion 1.)
(b) Pyplyn serwitute 3 meter wyd oor die eiendom hierdeur
getransporteer, middellyne waarvan voorgestel is deur die lyne
de
ff gg hh hgfj
en
ut
op gesegde Kaart Nr, 9314/87 (Plan
12078) Hieraan (
sic
) geheg.
(c) Watersloot serwitute oor die eiendom hierdeur getransporteer die
middellyne waarvan voorgestel is deur die lyne
tsv sr
en
aa
bb
op gesegde Kaart Nr, 9314/87 (Plan 12078) hieraan geheg.
(d) Die reg om ’n serwituut keerwal aan te bring op die eiendom
hierdeur getransporteer soos aangedui in die inlassing 1
op gesegde
Kaart Nr, 9314/87 (Plan 12078) hieraan geheg.  (The servitude
giving the owner of Portion 2 the right to draw water
at a weir to be
erected on Portion 3 was identical to that conferred in favour of the
owner of Portion 1.)
(e) Die reg om ’n serwituut uitkeersluis aan te bou op die
eiendom hierdeur getransporteer soos aangedui word in inlassing
3 op
gesegde Kaart Nr, 9314/87 (Plan 12078) hieraan geheg.
(f) [As per clause (e) of the above quoted
servitude registered in favour of Portion 1.]
[8]
(3) Die eienaar van die Restant van die Plaas GOUDYN Nr. 619 groot as
sulks 117,7940 Hektaar gehou deur Akte van Verdelingstransport
Nr.
T 33043/90 sal geregtig wees op:
(a) ’n padserwituut oor die eiendom heirdeur getransporteer].
(The road servitude in favour of Portion 3 was registered
in exactly
the same terms as that in registered in favour of Portions 1 and 2.)
(b) Pyplyn serwitute 3 meter wyd oor die eiendom hierdeur
getransporteer, die middellyne waarvan voorgestel is deur die lyne
ff
gg hh
en
ut
op gesegde Kaart Nr, 9314/87 (Plan 12078)
hieraan geheg.
(c) Watersloot serwitute oor die eiendom hierdeur getransporteer die
middellyne waarvan voorgestel is deur die lyne
tsv
en
sr
op gesegde Kaart Nr, 9314/87 (Plan 12078) hieraan geheg.
(d) Die reg om ’n serwituut keerwal aan te bring op die eiendom
hierdeur getransporteer soos aangedui in die inlassing 1
op gesegde
Kaart Nr, 9314/87 (Plan 12078) hieraan geheg. (The servitude giving
the owner of Portion 2 the right to draw water at
a weir to be
erected on Portion 3 was identical to that conferred in favour of the
owners of Portions 1 and 2.)
(e) [As per clause (e) of the above quoted
servitude registered in favour of Portion 1.]
[9]
[17]
The
servitudes are better understood with reference to a diagram charting
them on a plan that shows the layout of the respective
parcels of
land:
[See
PDF for image]
Diagram by land surveyors Earth2Sky Geomatics,
Worcester, attached as part of annexure B to the respondents’
principal answering
affidavit.
[18]
The respondents, supported in this respect
by the testimony on affidavit of Schalk, contended that it had been
agreed between the
Le Roux brothers as part of the division agreement
that the respective portions of land to be divided between them
should continue
after the division to enjoy the respective rights to
water that had been afforded
inter se
when they had been under joint ownership.  In this regard it was
alleged that a framework of mutual servitudes had been contemplated,

including provision for a servitude in favour of Portion 3 over
Portion 1 to permit the owner of the former to draw water from
the
dam on Portion 1 to be led from there to dam 3.
[19]
One would have expected the creation of
mutually operating servitutal rights to have been set out in the
parties’ division
of ownership agreement if that had been their
intention.  Neither side was able, despite enquiry, to locate a
copy of the
agreement.  It was concluded in 1987, nearly three
years before the division between Andries and Schalk was
effected.
[10]
The respondents did produce a land surveyor’s diagram, dated
22 February 1988, which purports to reflect a servitude
of sloot
in favour of Portion 3 over Portion 1 on Plan 9312-87, and is
labelled as an attachment to T33043 (which it will recalled
was the
applicable deed of division transfer).  The deed of transfer
contains no reference to the diagram, however.
(It appears that
there may be other anomalies in respect of the formulation and
registration of the servitudes, for, as pointed
out by a land
surveyor whose firm was engaged for the purpose of drawing up the
plan of division (No. 12078) that was registered
by the
Surveyor-General as Map No. 9314/87, no provision appears to have
been made for a servitude in favour of Portion 2 over
Portion 1
to permit the former to utilise the existing routes of leading water
between
sr
and
aa
on
the plan of division.)
[20]
Schalk testified that he had left the
supervision of the registration of the servitudes agreed upon for the
purposes of the division
to Andries.  The suggestion was that
the omission of a servitude in favour of Portion 3 allowing its owner
to take water via
dam 1 had been in error or by deception.  It
was contended by the respondents that the deed of division transfer
was susceptible
to rectification.  The applicants applied for
and were granted leave to cross-examine Schalk on the issue.
Schalk was
not disposed to make himself available, however, and the
respondents’ counsel advised the court that in the
circumstances,
while the respondents reserved their right to pursue a
claim for rectification in other proceedings if so advised, they
would not
persist in a defence predicated on the rectification of the
deed in the current matter.
[21]
It seems to me that in fact the formulation
of a praedial servitude in favour of Portion 3 over Portion 1 along
the lines conceived
by Schalk may actually have been problematic.
What is certain, however, is that the registered title deeds
could not be rectified
to provide the owner of Portion 3 with the
right to draw water at the weir and lead it over its own property
either to dam 3 or
to Portion 1; one cannot register a servitude over
one’s own property.  This is so because praedial
servitutal rights
derogate, according to their tenor, from the
ordinary rights of ownership of the servient tenement, and a tenement
cannot be servient
to itself.
[22]
As matters stand therefore the current
application falls to be determined upon a proper construction of the
servitudes as they are
reflected in the registered title deeds.
The central question is the extent to which, if at all, the
registered servitudes
in favour of Portions 1 and 2 and the Remainder
derogate from the right of the owner of Portion 3 to abstract
water from the
Wolwenkloof River and lead it to dam 3.
[23]
It will be noted that the separately
registered Portions 1, 2 and the Remainder each have identical
servitutal rights to provide
a weir and draw water from precisely the
same point on Portion 3, which, as mentioned, is at a point on the
Wolwenkloof River where
it runs through Portion 3.  There is
nothing in the registered servitudes to determine, as between
themselves, the extent
to which the owners of Portions 1, 2 and the
Remainder may draw water at the weir point, nor is there any such
determination as
between them and the owner of Portion 3 as to the
extent to which water may be drawn at the weir from the river at a
point where
it runs through the latter property.  As mentioned,
the owners of the lower lying properties also have the right to water
drawn at the weir and led over Portion 3.  Shared use of the
designated abstraction facility and some parts of the routes of

leading the abstracted water was plainly contemplated.
[24]
The deponent to the applicants’
founding affidavit describes that dam 2 is filled with water diverted
from the path of the
water that would otherwise be led via the
servitude to dam 1.  According to his evidence this happens when
dam 1 is filled,
or ‘has sufficient water’ as he put
it.
[11]
This might be all very well when Portion 1 and Portion 2 are under
common ownership, as they are presently, but it begs the
question of
how the servitutal rights individually registered in favour of each
of them are to operate if, as is quite conceivable,
the respective
properties, including the Remainder, become separately owned.
The same question arises in respect of the operation
of the right to
draw water at the weir point if any of the portions of the land
currently owned by the applicants are at any time
separately
alienated.
[25]
It is trite that praedial servitudes attach
to the affected land, and not - other than incidentally to their
ownership - its respective
owners.  What is clear is that by
reason of the several separately registered servitudes, which give
the owners of a number
of individually registered portions of
property overlapping rights of
aquaehaustus
and
aquaeductus
,
none of the servitude holders enjoys the exclusive right to abstract
water at the weir and lead it to their respective properties.

What might appear to be exclusive rights if the servitutal provisions
in the title deeds of each of the dominant tenements are
examined
individually, are clearly shown not be exclusive when the incidence
of the equivalent servitutal rights of all the other
properties
involved are taken into account.
[26]
The amount of water to which the owners of
the lower lying properties are entitled is apparently determined by
their respective
leibeurte
,
but there is no express provision as to the individual entitlements
of Portions 1, 2 and the Remainder.  It seems to me in
the
circumstances that if the servitudes registered in favour of Portions
1 and 2 and the Remainder are to be practicably workable,
the
provisions determining the extent of the respective rights to water
drawn from the Wolwenkloof River falls to be tacitly imputed.
[27]
The imputation of tacit terms, if
indicated, would occur with regard to the business efficacy of the
contracts seen through the
eyes of the contracting parties when they
concluded the agreement.  The imputation of tacit terms is
permissible, not to lend
reasonableness to the contract that is
evident from the express terms, but only to the extent that it is
necessary to make the
contracts effective.  The exercise
necessarily involves regard being had to the evident object of the
contract and the circumstances
prevailing when the agreement was
entered into.
[28]
Regard to the circumstances that prevailed
when the relevant contract was made is in any event a recognised
consideration when construing
the ambit of servitutal provisions,
especially when they are susceptible to more than one construction;
cf. e.g.
Richter v Bloemfontein Town
Council
1922 AD 57
at 69-72 and
Cliffside Flats Pty Ltd v Bantry Rocks
Pty Ltd
1944 AD 106
at 117- 118.
This is reflective of the contextually informed approach that applies
to the proper construction of all deeds
of contract; cf.
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
,
2012 (4) SA 593
(SCA),
[2012] 2 All SA 262
, at para.
18.  Whilst courts are astute not to make contracts for the
parties when it is apparent that the contracts that
the parties have
concluded are one-sided or ill-considered, they are careful not to
construe contracts, where there is a dispute
as their import, in a
manner that would give an unbusinesslike result; cf. the reference
with approval in
Bothma-Batho Transport
(Edms) Bpk v S Botha & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA), at para 12, to
Rainy
Sky S.A. and others v Kookmin Bank
[2012] 1 All ER 1137
(SC), at para 21, where Lord Clarke held
The language used by the parties will often have more
than one potential meaning. I would accept the submission made on
behalf of
the appellants that the exercise of construction is
essentially one unitary exercise in which the court must consider the
language
used and ascertain what a reasonable person, that is a
person who has all the background knowledge which would reasonably
have
been available to the parties in the situation in which they
were at the time of the contract, would have understood the parties

to have meant. In doing so, the court must have regard to all the
relevant surrounding circumstances. If there are two possible

constructions, the court is entitled to prefer the construction which
is consistent with business common sense and to reject the
other.
[29]
A consideration of the circumstances
prevailing when the division agreement was concluded shows that all
three dams were filled
with water abstracted at the weir point in
place at the time of the division agreement.  The entire farm
would have enjoyed
riparian rights under the statutory provisions
applicable in terms of the Water Act 54 of 1956 that was then in
force.  Such
rights would have accrued to each of the portions
upon the division of the farm.  (There is no evidence that the
currently
delineated portions of Farm Goudyn 619 derived from
different original grants.)  There is nothing in the registered
servitudes
that subordinated the riparian right of the owner of
Portion 3 in terms of s 10(1) of the Water Act
[12]
to abstract surplus water
[13]
from the river for storage in a dam to the equivalent rights of the
owners of the other portions.  The registered servitudes
merely
defined the means whereby (the weir) and the routes over Portion 3
applicable to the exercise by the owners of Portions
1 and 2 and the
Remainder of
their
rights of abstraction for storage.  That was the object of the
servitudes; cf
Cliffside Flats (Pty) Ltd
supra, at 111, referring to
Rolls
v Miller
27 Ch 71
at 88.  They did
not give the owners of the latter properties preferent rights of
abstraction, in the sense of a right to
draw water from the public
stream before the owner of Portion 3 could access the resource.
The prevailing law granted riparian
owners the use of only so much of
water in a public stream as they could reasonably use.
[30]
With the inception in 1998 of the
National
Water Act 36 of 1998
, the respective properties’ water use
entitlements fell, in terms of
s 4(2)
, to be determined with
reference to their owners’ respective existing lawful water
uses during the two-year statutory window
period referred to in
s 32(1) of the Act.
[14]
The types of water uses identified for the purposes of the
National
Water Act are
listed in
s 21.
Those that are relevant for
present purposes are ‘
taking water
from a water resource
’
(s 21(a))
and ‘
storing water
’
(s 21(b)).
[31]
The applicants contend that Portion 3 did
not exercise any lawful water use during the statutory window
period.  The basis
for that contention is an assertion by the
applicants that the only water received by dam 3 during that period
was led via dam
1 and was received in dam 3, not by way of the
exercise of a use right attached to Portion 3, but merely in
consequence of
an indulgence granted by the owner of Portion 1.
[32]
In my judgment that contention is
unfounded.  The means of leading the water abstracted from the
river for the purpose of storage
in the dam is not determinant of the
property owner’s abstraction use.  The fact that, for
convenience, he leads the
abstracted water by way of someone else’s
property by virtue of an indulgence granted by the latter, rather
than by a route
over his own property, does not detract from the
factual nature and extent of the water uses in question.  The
fact that the
water abstracted for storage on Portion 3 was led there
by way of the owner of Portion 1’s property does not make the
relevant
water uses that person’s, rather than those of the
owner of Portion 3.
[33]
The capacity of the dam and the extent of
the owner’s use of the water stored in it for irrigation during
the statutory window
period determine its abstraction and storage
uses for the purposes of
s 32
read with
s 21
(a) and (b) of
the
National Water Act.  Dams
1 and 2 each have a capacity of
approximately 14 000 m
3
,
whereas the capacity of dam 3
is more than 85 000 m
3
.
The evidence does not establish the extent of the areas that were
irrigated from the respective dams at the time.
There is
evidence, however, that the existing lawful water use on Portion 3
during the window period in terms of the
National Water Act included
the abstraction of 514 091m
3
of
surface water for irrigation purposes.  This much was reflected
in a letter to the respondents from the Breede-Gouritz Catchment

Agency (a ‘
responsible authority
’
within the meaning of the Act) informing them of a determination made
in terms of s 35(4) of the Act.
[15]
In the absence of any indication of any change of land or water use
on the respective properties during the period after
the partitioning
of the farm when Portion 3 was in Schalk’s ownership, that
seems to me to afford a reasonable basis
to infer that the extent of
water use would have been no different at the time of the division of
the land between the two brothers.
[34]
Portion 3’s surface water abstraction
use right determined in terms of s 35(4) is related in the
letter of notification
from the Catchment Management Agency to
s 21(a) of the Act, which pertains to ‘
taking
water from a water resource
’.
‘
Water resource
’
is defined in s 1 of the Act to include ‘
a
watercourse, surface water, estuary or aquifer
’.
A ‘
watercourse
’
by definition includes, amongst other things, a river or spring or a
dam into which water flows.  It is clear, if regard
is had to
the topography described earlier, and depicted on the diagram in
paragraph [17]
above, that water taken by
Portion 3 was abstracted from the Wolwenkloof River, which is a
‘
watercourse
’
as defined.  It was not abstracted from dam 1.  (The notion
that the water with which dam 3 was filled had been
abstracted from
dam 1 could be sustained only if the water in dam 1 had been ‘private
water’ within the meaning of
the Water Act, 1956 – which
was not the case.  Dam 1 is in any event a dam into which water
is led, not one into which
water flows.  It thus does not
qualify as a ‘
watercourse
’,
as defined.)
[35]
It is also evident that the only means of
filling dam 3 was with water drawn from the river.  When the
division agreement was
concluded, Portion 3 abstracted the water at
the existing weir point designated in the servitude conditions.
It would therefore
have been a starkly unbusinesslike act for Schalk
to have agreed that the farm should be partitioned on the basis that
dam 3, which
was the only place that irrigation water was stored on
Portion 3, should be deprived of its existing means of supply (i.e.
water
abstracted at the weir point).  The contextual indications
are that the parties to the division agreement accepted when settling

the terms of the servitutal conditions that the owner of Portion 3
would, along with the other riparian users in that vicinity,
be able
to continue to draw water from the river at the then existing weir
point.
[36]
It has repeatedly
been emphasised in the jurisprudence on servitudes that they must be
interpreted to have the least onerous effect,
so as to limit or
impinge on the rights of the owners of the servient tenements as
little as the language in which they are expressed
will allow.
[16]
A strict construction of the express
provisions of the servitutal conditions does not render a prohibition
against the owner of
Portion 3 from also abstracting water for that
property’s reasonable use at the common weir point.  The
factual context
also indicates that a continuation by the owner of
Portion 3 of the practice to abstract water at the weir point and
lead it to
dam 3, would not, if reasonably carried out, derogate from
the servitude rights given to the owners of Portions 1 and 2 and the

Remainder.
[17]
In the peculiar circumstances of this case, I am not therefore not
persuaded by the applicants’ counsel’s contention
that
doing so would breach the principle that the grantor of a servitude
may not do anything that derogates from the exercise of
the
servitutal rights conferred (‘
concessa
servitute simul concessa censentur omnia sine quibus servitus
exerceri nequit
’).
[37]
The servitudes registered against Portion 3
are positive servitudes; they afford the owners of the dominant
tenements the right
to do various things on Portion 3. Negative
servitudes, by contrast, forbid the owner of the servient property
from exercising
rights that
it
would ordinarily be able to exercise on its own property.  A
building height restriction servitude (
servitus
altius non tollendi
) is a commonly
encountered example of a so-called negative servitude.
[38]
The servitudes registered against Portion 3
do not prohibit its owners from drawing water from the Wolwenkloof
River to fill dam
3.  Indeed, the applicants make no contention
to the contrary.  They do contend, however, that any such taking
of water
from the river must occur downstream of the weir point from
which they have been given the right to divert water to fill dam 1.

The applicants’ position comes down to an assertion that the
registered servitudes give them a preferential right to the
water in
the river, and, as the correspondence addressed by their attorney to
the respondents prior to the latter taking transfer
of Portion 3
indicates, an exclusive right to water drawn at the weir point, with
a prohibition on the owner of Portion 3 from
abstracting water
upstream from that point.
[39]
A similar contention, in circumstances
where the dominant tenement’s servitutal right to draw water
had been acquired by prescription,
rather than contract, was rejected
in
De Klerk v Niehaus
(1897)
14 SC 302.
The significance of that case in my view is that it
illustrates that the existence of a servitude of
aquaehaustus
does not, of itself, necessarily operate to deprive the owner of the
servient tenement of its riparian rights (if such exist) to
the use
of water drawn from a place upstream of the point where the dominant
tenement owner is entitled to exercise its servitutal
right to draw
water.
[40]
The extent to which the owners of Portion 3
are entitled in the circumstances to exercise any right they might
have to draw water
from the river is determined by well-established
principles.  These were succinctly rehearsed by Harms JA in
Cillie v Geldenhuys
[2008] ZASCA 54
;
[2008]
3 All SA 507
(SCA),
2009
(2) SA 325
, at para 15,
as follows:
Dit is ’n algemene
reël dat ’n serwituuthouer in beginsel voorkeur geniet bo
die dienende eienaar ten opsigte van
die
omskrewe
genots-
en gebruiksbevoegdhede wat die betrokke serwituut verleen (
Van
der Merwe
464).
[
[18]
]
Die eienaar van die
dienende eiendom is daarenteen slegs bevoeg om sy saak te gebruik
“insoverre hy nie daardeur die belange
van die serwituuthouer
aantas nie” (
Van
der Merwe
op
465). Dit beteken dat wat die dienende eienaar mag of nie mag doen
nie van die strekwydte van die serwituut afhang. Gaan dit
om bv ’n
konsensuele serwituut, is dit ’n kwessie van uitleg; gaan dit
om ’n serwituut wat deur verjaring geskep
is, hang dit van die
presiese aard en omvang van die reg wat aldus verwerf is, af.
[19]
(Emphasis by italicisation in the
original.)
[41]
The effect of the aforegoing principles in
my judgment is that there is nothing in the registered servitudes
that would prohibit
the owners of Portion 3 from drawing from the
river at the weir point, and leading it to the dam on their property,
so much water
that does not adversely affect the entitlements of the
owners of the dominant tenements, and as they are entitled to in
terms of
the
National Water Act.  The
fact that the registered
servitudes and established practices reflect that the owners of a
number of different properties each
has the right, individually, to
erect a weir and divert water at the same spot on Portion 3
inexorably enjoins the conclusion that
none of them has been given an
exclusive right to do so.  Any weir built at the place
designated in the registered servitude
would consequently necessarily
be ‘a joint waterwork’ in the language of the
National
Water Act.
[20
]
It was not surprising in the circumstances to read Schalk’s
evidence that, in practice, as the owner of Portion 3,
he in the main
attended to the repair and maintenance of the weir, and Andries and
the owners of the lower lying farms contributed
to the costs of his
doing so.  One would expect the position to have been otherwise,
however, were Portion 3 not entitled
to share in the use of the
waterworks, for in that case the responsibility for their maintenance
would have been entirely that
of the servitude holders.
[42]
In the circumstances I fail to see why the
respondents should not be entitled, subject, of course, to
regularisation in terms of
the applicable statutory requirements, to
erect and use the weir that is necessary for them and all the
servitude holders to exercise
their rights to abstract and lead water
from the point - provided that they do so in a manner that does not
adversely affect the
servitude holders’ rights.  The
requirement that servitude holders must exercise their rights
civiliter modo
[21]
serves as a common law enjoinder in the circumstances for all the
affected parties to treat with one another reasonably to that
end.
There is nothing in the applicants’ complaint to show as a
matter of fact that the respondents’ conduct
has adversely
affected the realisation of the applicants’ entitlement
(whatever it might be) to water from the river.  (I
shall come
presently to the effect of the applicants’ right to abstract
the water at the expressly designated place (point
u
).
[43]
There is also nothing in the servitutal
rights conferred on the dominant tenements that prohibits the owner
of Portion 3 from withdrawing
water upstream from the registered weir
point, provided that by doing so it does not deprive the dominant
tenements from access
to the amount of river water to which they are
in any event entitled.
[44]
It is time now to examine the factual
background to the current litigation in a little more detail.
[45]
The fourth respondent reacted to the
filling in by Andries of the interconnecting sloot between dams 1 and
3 by digging an alternative
route for water abstracted for the
purpose of filling dam 3 to be led entirely over his own land,
thereby bypassing the hitherto
used route via Portion 1.  He
also laid a pipe in part of the existing sloot over which the
applicants enjoy servitutal rights
of
aquaeductus
.
The pipe is used to lead water abstracted by the fourth respondent
from the river by way of a new path directly to dam 3.
[46]
That gave rise to the institution by the
applicants of the spoliation litigation referred to earlier.
After argument in the
spoliation application had been heard (before
Gamble J), but before judgment could be delivered, the weir that
existed at
that time was washed away in a flood that occurred on 15
November 2013.  The applicants were advised that the destruction
of the weir rendered their spoliation application nugatory.
They therefore instituted the current proceedings in May 2016.
In
the interim, and indeed, right up to the present, all of the property
owners that enjoyed the right to draw water at the
designated weir
point (point
u
)
have been abstracting their water using a replacement weir erected by
the fourth respondent some 60-80 metres upstream from the

pre-existing structure.  The fourth respondent provided a
channel parallel to the river bank from the abstraction points at
the
new weir to point
t
on the plan, by means of which the abstracted water is led to the
beginning of the routes for leading it to the servitude holders
in
terms of the various registered servitudes of aquaduct.  In
other words, he acted to ensure a continued supply of abstracted

water to all the users who had hitherto used the weir that had been
swept away.
[47]
The replacement was constructed hastily,
and without environmental authorisation, to address the exigencies of
the situation caused
by the flood damage.  Without it, the
property-owners who had been using the pre-existing weir (i.e. the
applicants, the respondents
and Mr Piet Le Roux) would be left
without the means to draw water to fill their dams for use in
irrigating their lands during
the summer dry season that was just
beginning.  Irrigation was reportedly essential for the well
being of the vineyards and
orchards on the land of the applicants and
the respondents.  The evidence suggests that in the three years
that intervened
before the institution of the current proceedings the
joint users of the weir waterworks have used the replacement weir
without
any of them suffering a shortfall in their respective annual
entitlements to abstracted water.
[48]
The applicants have complained that the
size of the pipe whereby the water is abstracted to be led to dam 1
is smaller than that
which the respondents have provided for the
abstraction of water for their own purposes.  In my view there
is nothing in the
point in the absence of any evidence showing that
the smaller pipe diameter has resulted in the applicants being
deprived of their
lawful entitlement to water.  The alternative
to a system of pipes of varying sizes allowing a simultaneous
abstraction of
water by the joint users in volumes directly
proportionate to the extent of their lawful water uses would be a
system of ‘
waterbeurte
’.
As already discussed, the servitudes do not expressly provide how the
co-existing water abstraction rights are to
be exercised
inter
se
at the abstraction point.  If
they are unable to resolve the question between themselves, the
appropriate course would be
obtain an order in proceedings in terms
of Chapter 13 of the
National Water Act.
[49
]
The applicants also sought to make
something of the periodic blockage of its abstraction pipe at the
replacement weir by means of
various objects, including a
water-filled plastic bottle propped in place with cloth rags.
The fourth respondent admits that
this is done from time.  He
also uses old plastic buckets for the same purpose, sometimes using a
bucket with a hole in the
bottom and sometimes a bucket with no
hole.  The fourth respondent explained this conduct as a being a
crude but effective
method of water flow management.  He stated
that at times of strong water flow in the river, especially during
the rainy season,
it was necessary to control the flow of water into
the abstraction system in order to prevent damage.  He also said
that the
methods he used for this purpose were common practice
amongst farmers in the area.
[50]
Applying the
Plascon-Evans
rule, as it is bound to do when final relief is sought on paper, the
court must accept this evidence unless it is palpably far-fetched.

The test for departing from the ordinary incidence of the rule is a
stringent one that is not easily satisfied; see
National
Scrap Metal (Cape Town) Pty Ltd and another v Murray & Roberts
Ltd and others
[2012] ZASCA 47
,
2012
(5) SA 300
(SCA), at para. 22.  In my view the evidence in
this case does not justify a departure from the rule.  The
evidence
in any event did not establish that the flow management
methods employed by the fourth respondent resulted in the applicants
receiving
less water in their dams than they were entitled to take
from the river.
[51]
The weir point in issue (point
u
)
was not the only place adversely affected by the exceptional flood in
November 2013.  Many other farmers in the area were
constrained
to effect emergency reconstruction without being able to obtain prior
environmental approval.  A special dispensation
(allowing like
to be replaced with like) was put in place by the regulatory
authorities to deal with these exigencies.  The
special
dispensation did not include the weir replacement effected by the
respondents, but a process of regularisation is currently
underway.
The evidence suggests that obtaining environmental approval is
usually a somewhat drawn-out process.  The
respondents adduced
the evidence of an environmental expert and a civil engineer with
relevant experience who have opined that
the respondents’
application for the statutory regularisation of the weir upstream of
the designated weir point enjoys good
prospects of success, and that
it may be a less environmentally invasive solution than the
re-construction of a weir at the spot
where the previous structure
washed away.  The fourth respondent has explained his decision
to relocate the weir, pointing
out that changes to the character of
the river wrought by the flood rendered it impractical to rebuild it
at the original place.
He is supported in that view by the
aforementioned civil engineer.
[52]
These considerations, of course, do not
detract from the applicants’ servitutal right to erect a
replacement weir at the place
designated in their title deeds, but if
they were to seek to do so they would require environmental
authorisation.  It is
trite that the environmental legislation –
primarily the
National Environmental Management Act 107 of 1998
–
enjoins an integrated approach to environmental management.
[22]
It seems obvious therefore that any consideration of an application
by the applicants for environmental authorisation to
erect a weir at
the place designated in the servitutal conditions would fall to be
considered by the relevant authorities in the
context of the
replacement that already exists and any as yet undetermined
application for the regularisation of the latter structure.
It
is uncertain in the circumstances whether the applicants would be
granted the required authorisation.
[53]
The respondents pointed out, in respect of
the order sought in paragraph 3.3 of the notice of motion,
[23]
that the applicants do not have a registered servitude giving them
sluice rights at point
s
.
That is indeed so, but the respondents would be well advised not to
make too much of the point.  It is only by means
of some form of
diversion works at point
s
that the registered servitudes are workable.  It is
well-established that such ancillary rights as are necessary to lend
effectiveness to a registered servitude are tacitly imputed in favour
of the servitude holder.  The imputed right of reasonable
access
to the servient tenement by the owner of the dominant tenement to
inspect and maintain the servitude works is a ready example.
[24]
Any suggestion therefore that the diversion box at point
s
must not be operated in such a manner as to allow each of the
servitude holders to obtain its water entitlement in terms of the

registered servitudes would not bear scrutiny.  It would also
fly in the face of the respondents’ own evidence that
the
registration of the servitudes over Portion 3 in favour of Portions 1
and 2 and the Remainder was intended by Andries and Schalk
to
entrench for posterity the practical basis upon which the abstracted
water had been shared between the three dams and the lower
lying
farms before the division agreement.
[54]
However, the evidence does not establish
that the on-going management of the diversion system, primarily by
the fourth respondent,
is not assuring the applicants of the water to
which they are entitled.  It also does not provide the detail
that would be
required to properly frame any positive interdict of
the nature prayed for in terms of paragraph 3.3 of the notice of
motion.
In the context of the applicants’ unilateral
decision to cut off the previously established route for leading
water to fill
dam 3 by way of Portion 1, it is evident that the
diversion works at point
s
must also provide, insofar as necessary, for the diversion of water
by another route for the owner of Portion 3’s purposes.
[55]
This is a convenient point to deal with the
applicants’ contention that the conduct of the respondents in
leading abstracted
water over their own land by a different route to
that which had applied during the statutory window period in terms of
the
National Water Act necessarily
implied that the filling of dam 3
by such means could not be a continued lawful water use in terms of
the Act.  In that connection
much reliance was placed on the
observation by Van Heerden J in
Starke
NO and another v Schreiber and others
[2001]
1
All SA 167
(C) at 184 that the ambit of an ‘existing lawful
water use’ in terms of Act depends on the manner in which, and
the
purposes for which the water was actually used during the period
of two years prior to the date of commencement of the Act.
It
was suggested that the current method of leading the abstracted water
by a different route to Portion 3 implied a changed use.
I do
not consider that this argument can be sustained in the face of the
verification in 2015 of the respondents’ water use
in terms of
s 35(4) of the Act.  It seems to me in any event that the
relevant water uses in issue are the taking of
the water from the
river (a use in terms of s 21(a) of the Act) and the storage of
such water in dam 3 (a use in terms
of s 21(b) of the
Act).  Those uses are unaffected by the different means of
leading the abstracted water between the
river and the dam.  The
amounts of water involved in the said uses have, as mentioned, been
statutorily verified in terms
of the Act.
[25]
[56]
Turning now, in the light of the
aforegoing, to consider the relief sought by the applicants.
[57]
There is no dispute about the applicants’
servitutal right to construct a weir for the abstraction of water on
Portion 3 as
indicated on insert 1 on Map 9314/87 annexed to the deed
of division transfer.  There is accordingly no reason for the
court
to invoke its discretionary power to make a declaratory order
to such effect, as prayed in paragraph 1 of the amended notice of

motion.  As discussed above, it is also in any event by no means
certain that the applicants would be able in the prevailing

circumstances to obtain the statutory authorisation required to
exercise the right.
[58]
There is no proof that the respondents have
interfered with or derogated from the exercise by the applicants of
their registered
servitutal rights. A case has therefore not been
made out for the relief sought in terms of paragraph 2 of the notice
of motion.
[59]
The servitutal rights conferred on the
applicants by the newly registered servitudes in favour of their
properties do not afford
them the right to the undisturbed and
unrestricted flow of water abstracted at the weir point.  A
number of properties enjoy
corresponding rights to abstract water at
the same point using the same weir facility.  The effect of the
registered servitudes
in favour of Portions 1 and 2 and the Remainder
currently owned by the applicants is that those properties are
entitled to abstract
their entitlement to water taken from the
Wolwenkloof River at the designated point of abstraction and to lead
it from there to
their respective properties.  The servitudes do
not give the applicants the exclusive right to all the water that is
capable
of abstraction at the weir point and, as discussed, they do
not prohibit the respondents from abstracting their share of the
water
flowing in the river from that point and leading it over the
same route onto Portion 3, provided that that is done in a manner
that does not adversely impinge on the applicants’ exercise of
their rights.  A case for the prohibitory interdict sought
in
terms of paragraph 3.1 of the notice of motion has not been made
out.  The applicants have not shown that they have been

adversely affected in the exercise of their servitutal rights by the
fourth respondents’ conduct.
[60]
An interference with the rights of the
owners of the lower lying farms has not been established.  Nor
have the applicants established
that they have the exclusive right to
regulate the diversion of water at points
s
and
h
.
A proper basis for the interdictory relief sought in paragraph 3.3 of
the notice of motion has not been made out.
[61]
A case for the relief sought in terms of
paragraphs 3.4 and 3.5 of the notice of motion has also not been made
out.  The applicants
would be entitled to an interdict requiring
the demolition of the weir constructed by the respondents only if
they were able to
show that its existence was prejudicing their right
to abstract the water to which they are entitled at the weir point
provided
for in the registered servitudes.  I would in any event
not be inclined to exercise the court’s discretion in favour
of
the applicants in regard to the interdictory relief sought in these
paragraphs in circumstances when the weir that the applicants
are
entitled to erect is a joint waterwork that has not yet been built,
and when there is no certainty that in the prevailing circumstances

the statutory permission that they would require to build it would be
forthcoming.
[62]
The applicants’ exercise of their
entitlement to abstract water from the river is not inextricably
linked to the weir point
indicated on the registered servitude.
It would be feasible, were the relevant statutory authority to be
persuaded that it
would be impractical to require or permit the
re-erection of a weir at the original spot, for the servitudes to be
amended to provide
for the abstraction to take place where the
respondents have erected the replacement weir, or at any alternative
place that might
reasonably be considered more practical; see Part 2
of Chapter 13 of the
National Water Act, and
consider the development
of the common law in respect of servitudes in
Linvestment
CC v Hammersley and Another
[2008]
ZASCA 1
;
[2008] 2 All SA 493
(SCA);
2008 (3) SA 283
and the related
observations by the Constitutional Court in
City
of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and
others (Dark Fibre Africa (RF)
[2015]
ZACC 29
(CC),
2015 (6) SA 440
(CC),
2015 (11) BCLR 1265
, at para.
150
.  When the respondents, admittedly
in response to what they consider to be provocative conduct by the
applicants’ in
the current matter, assert that the applicants
are being permitted to use the most recently erected weir only as an
indulgence
(
Afr.
’n vergunning), they should bear in mind that on their own case
the character of the current weir is in fact that of a replacement

joint waterwork that has been erected where it is in response to the
emergency created by the damage wrought by the flood in 2013,
when
the pre-existing weir was washed away and the underlying riverbed
scoured out in such a way as to make reconstruction at the
same spot
impractical.  The siting of the joint waterwork is a matter that
all the parties who have a legal and practical
interest in it would
be well advised to address in a co-ordinated and mutually
co-operative manner under both the environmental
and water regulatory
statutes in terms of the currently on-going process for the
regularisation of the weir structure constructed
by the respondents.
[63]
In the result, the application falls to be
dismissed with costs, save that the costs wasted on 27 March
2018, when the hearing
was stood down to enable the respondents to
consider their position with regard to the cross-examination of
Mr Schalk Le Roux,
shall be borne by the first to third
respondents.
[64]
The following order is made:
1.
The
application is dismissed.
2.
Save
as provided in terms of paragraph 3 of this order, the applicants
shall be liable for the respondents’ costs of suit.
3.
The
first, second and third respondents shall be liable to pay the wasted
costs incurred by the applicants as a result of the matter
standing
down at the respondents’ request on 27 March 2018.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicants’ counsel: A. de V. La Grange SC
Applicants’ attorneys: Du Bois Attorneys
Robertson
Van
der Spuy Attorneys
Cape
Town
First to Fourth Respondents’ counsel: T.J. Nel
First to Fourth Respondents’ attorneys: Krouwkam Attorneys
Worcester
Hayes
Inc
Cape
Town
[1]
‘
An order:
1
Declaring that the applicants
in their capacity as the trustees for the time being of the Giudyn
Plase Trust ... are entitled
in the exercise of the servitutal
rights over Portion 3 of the Farm Goudyn 619, Worcester
Adminstrative district, Western Cape
Province (hereinafter “Portion
3”) which are registered in favour of the applicants’
properties , namely Portions
1 and 2 and the Remainder of the
aforementioned farm (hereinafter “
the
applicants’ registered servitutal rights
)
to abstract water from the Wolwenkloof River by means of a weir
erected, or liable to be erected on Portion 3, (a) as indicated
on
insert 1 on Map 9314/87 (Plan 12078) as attached to Deed of Division
Transfer T33042/1990  and Deed of Transfer T97275/2007
,
alternatively
(b) at the place where the weir had previously been erected before
it was damaged in the flood of 15 November 2013 (hereinafter

referred to as “
Applicants’
servitude weir
”).’
(My translation.)
[2]
‘
Prohibiting the First to
Third Respondents as trustees for the time being of the TC Botha
Trust ... and the Fourth Respondent
(hereinafter the “First to
Fourth Respondents”) from interfering with or impinging upon
the exercise by the Applicants
of the Applicants’ servitutal
rights.’  (My translation.)
[3]
There was no para. 3.2 in the notice
of motion.
[4]
‘
3. Directing the First to Fourth Respondents to
forthwith:
3.1 Permit the full flow of all water abstracted by the
Applicants’ servitude weir in the Wolwenkloof River on Portion
3
to pass undisturbed and unobstructed through the Applicants
servitude sloots and pipelines on and over Portion 3, inclusive of

the operation by the Applicants of the diversion sluices in the
diversion box at point s on servitude sloot tsv and point h on

servitude sloot aa bb, as reflected on the aforementioned Map
9314/87;
3.3
Permit the
Applicants to replace, fix and set iron or steel sluice plates,
which were previously removed from the diversion box
at point s on
the servitude sloot tsv and at the diversion sluice servitude at
point h on the servitude sloot aa bb, as reflected
on the said Map
9314/87, in order to give effect to the waterbeurte as set forth and
explained in paragraphs 37, 38 and 39 of
the founding affidavit of
CAREL WYNAND LE ROUX;
3.4 Demolish the weir  or – structure that
has been constructed upstream from the Applicants’ servitude
weir;
alternatively, put it out of operation in such manner as shall
prevent any water being thereby abstracted from or led away from
the
said river;
3.5 Remove and demolish the weirs or –structures
erected in the Wolwenkloof River upstream from the Applicants’
servitude
weir to dam up water in the river, alternatively, to put
them out of operation in a manner that will result in the water that
flows in the riverbed flowing freely and unhindered to the
applicants’ servitude weir.’
(My translation.)
[5]
I have been unable to find an
English equivalent to these words.  ‘
Leibeurt
’
is defined in the
HAT
Handwoordeboek Afrikaanse Taal
6
th
ed. as ‘
tyd
om water uit ’n gemeenskaplike bron te lei
’
(Eng. ‘
time
slot for diverting water (for own use) from a common source
’.
My translation.)  '
[6]
A contention by the respondents’
counsel in his heads of arguments that the servitudes were personal,
rather than praedial,
in character was abandoned at the hearing;
advisedly so.
[7]
Subject further to the following
newly imposed conditions imposed upon the partitioning of the
property hereby transferred:
The
owner of PORTION 1 of the Farm GOUDYN No. 619, 11.0137 ha. in extent
held by Deed of Division Transfer No.  T 33043/90
shall be
entitled to:
(a) [a road servitude over the property conveyed
hereby].
(b)
Pipeline
servitudes 3 m wide over the property hereby conveyed the midlines
of which are represented by the lines
de
ff gg hh
and
ut
on the said Map No. 9314/87 (Plan 12078) attached hereto.
(c) Water sloot servitudes over the property hereby
conveyed the midlines of which are represented by the lines
tsv
and
sr
on the said Map No. 9314/87 (Plan 12078) attached
hereto.
(d) The right to construct a servitutal weir on the
property hereby conveyed as indicated on insert 1 on the said Map
No. 9314/87
(Plan 12078) attached hereto.
(e) The right to enter the property hereby conveyed
together with his employees or contractors for the purposes of
inspection,
maintenance and repair of the roads, pipelines, furrows
and weir described hereinabove.
(My translation.)
[8]
The owner of PORTION 2 of the
Farm GOUDYN No. 619, 54.7594 ha. in extent, held by deed of division
Transfer No. T 33043/90 shall
be entitled to:
(a) …
(b)
Pipeline
servitudes 3 metres wide over the property hereby conveyed, the
midlines of which are represented by the lines
de
ff gg hh hgfj
and
ut
on the said Map No. 9314/87 (Plan 12078) attached hereto.
(c) Water sloot servitudes over the property hereby
conveyed, the midlines of which are represented by the lines
tsv
sr
and
aa bb
on the said Map No. 9314/87 (Plan 12078)
attached hereto.
(d) The right to construct a servitutal weir on the
property hereby conveyed as indicated on insert 1 on the said Map
No. 9314/87
(Plan 12078) attached hereto.
(e)
The
right to build a servitude diversion sluice on the property hereby
transferred as indicated in insert 3 on on the said Map
No. 9314/87
(Plan 12078) attached hereto.
(My translation.)
[9]
The owner of the remainder of the
Farm GOUDYN No. 619,
117,7940
ha. in extent, held by
deed of division Transfer No. T 33043/90 shall be entitled to:
(a) …
(b) Pipeline servitudes 3 metres
wide over the property hereby conveyed, the midlines of which are
represented by the lines
ff
gg hh
and
ut
on the said Map No. 9314/87 (Plan
12078) attached hereto.
(c) Water sloot servitudes over
the property hereby conveyed, the midlines of which are represented
by the lines
tsv
and
sr
on the said Map No. 9314/87 (Plan
12078) attached hereto.
(d) The right to construct a servitutal weir on the
property hereby conveyed as indicated on insert 1 on the said Map
No. 9314/87
(Plan 12078) attached hereto.
(e) …
(My translation.)
[10]
The applicants attached a copy of a ‘
Prokurasie
en Verklaring vir Verdelings Transport
’,
executed on 16 March 1990 to their replying affidavit, and in
their heads of argument appear to have equated that
with the
agreement.  The Power of Attorney and Declaration are, however,
quite distinguishable from the underlying agreement
referred to
therein, which was reportedly dated 10 December 1987 (which
happens to have been the same date on which the
Minister of
Agriculture signed the deed of consent to the subdivision of the
land in terms of the farm into the four sections
that now comprise
Portions 1, 2 and 3 and the Remainder).
[11]
‘
As die dam op Gedeelte 1 …
genoeg water sou hê
’
.
[12]
Section 10(1)
provided: ‘
Subject
to the provisions of this Act, and to any existing right, every
riparian owner is entitled to the use of so much of the
surplus
water of a public stream to which his land is riparian as he can
beneficially use for domestic purposes, for the watering
of his
stock, and for agricultural and urban purposes, and to impound and
store such surplus water for those purposes.
’
[13]
‘
Surplus water
’
was defined in s 1 of the Water Act, 1956, as ‘
in
relation to a public stream, means public water flowing or found in
that stream, other than the normal flow, if any
’
.
‘
Normal flow
’
was, in turn, defined as ‘
in relation
to a public stream, … the quantity of public water actually
and visibly flowing in that public stream which,
under a system of
direct irrigation from that stream, whether by furrows or otherwise,
but without the aid of storage, can be
beneficially used for the
irrigation of land riparian to such stream
’.
[14]
Section 32(1) provides insofar as
relevant for present purposes:
‘
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
’
(A
useful thumbnail review of the material changes in the applicable
legal regime is given in
S v Mostert and others
[2009] ZASCA
171
,
2010 (2) SA 586
(SCA),
[2010] 2 All SA 482
at paras. 8-11; see
also
Joubert en Andere v Die Benede-Blyderivier
Watergebruikersvereniging en ’n Ander
[2006] ZASCA 53
,
2007 (4) SA 80
(SCA).
[2006] 4 All SA 549
at paras. 7-8.)
[15]
Section 35 provides insofar as
relevant for present purposes:
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.
(2) …
(3) A responsible authority—
(a) may require the applicant, at the applicant’s
expense, to obtain and provide it with other information, in
addition
to the information contained in the application;
(b) may conduct its own investigation into the
veracity and the lawfulness of the water use in question;
(c) may invite written comments from any person who
has an interest in the matter; and
(d) must afford the applicant an opportunity to make
representations on any aspect of the application.
(4) A responsible authority may determine the extent
and lawfulness of a water use pursuant to an application under this
section,
and such determination limits the extent of any existing
lawful water use contemplated in section 32 (1).
[16]
See, for example, the dictum of
Harms JA in
Cillie
v Geldenhuys
[2008] ZASCA 54
;
[2008]
3 All SA 507
(SCA),
2009
(2) SA 325
, at
para. 20:
‘
Serwitute
moet mins beswarend uitgelê word en die regte van dienende
eienaars so min as moontlik ingekort word
’.
(
Eng.
‘
Servitudes
must be construed least onerously and the rights of servient owners
must be restricted as little as possible.’
My
translation.)
[17]
Cf.
Roeloffze
v Bothma
2007 2 SA
257
(C) at para. 33-34 and the other authority referred to in note
10 to that judgment.  That judgment dealt with a servitude
of
right of way, but that does not give rise to a valid point of
distinction in respect of the applicable principle.
[18]
The reference is to
CG
Van der Merwe,
Sakereg
2de
uitg.
[19]
‘
There is a general rule that
the holder of a servitude in principle enjoys precedence over the
servient owner in respect of the
defined
rights of use and enjoyment conferred by the relevant servitude (
Van
der Merwe
464).
The owner of the servient property is accordingly only entitled to
use his property “to the extent that he
does not thereby
impinge on the rights of the servitude holder” (
Van
der Merwe
at
465).  This implies that what the servient owner may do or not
do is dependent on the ambit of the servitude.  If,
for
example, a consensual servitude is involved, it is a question of
construction; if a servitude obtained by prescription is
involved,
it depends on the precise nature and extent of the right thus
accrued.’  (My translation.)
[20]
See s 134.
[21]
‘
In a civil manner’; or
as the Constitutional Court expresses the principle ‘
respectfully
and with due caution
’,
see
Motswagae and
others v Rustenburg Local Municipality and another (Lawyers for
Human Rights as amicus curiae)
[2013] ZACC 1
;
2013 (2) SA 613
(CC);
2013 (3) BCLR 271
(CC) fn 57
at para. 14 and
City
of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and
others (Dark Fibre Africa (RF)
[2015] ZACC 29
(CC),
2015 (6) SA 440
(CC),
2015 (11) BCLR 1265
, at
para. 143.  In
Low
NO and others v South African National Parks and another
[2008]
ZAWCHC 333
(12 December 2008)) at para 47, Bozalek J gave expression
to the principle in the following words ‘…
the
owner of a dominant tenement must exercise his rights with due
regard to the rights of the other owner and must exercise the

servitude in a proper and careful manner so as to cause least
inconvenience to the servient owner
.’
[22]
See, in particular, the principles
set out in s 2 of Act 107 of 1998.
[23]
See paragraph [7]
above.
[24]
Cf.
Zeeman
v De Wet en andere NNO
[2012] ZASCA 22
,
2012 (6) SA 1
(SCA), at para. 13
[25]
The position is factually distinguishable from that
discussed in
Du Preez and Others v Viljoen NO
and Others
[2017] ZAWCHC 113
(11 October
2017), at para 69.  In that matter the indications were that a
different amount of water was being taken from
the water resource in
question at the time relevant in the proceedings than that which had
been taken during the window period.
The actual import of the
relevant dicta in
Starke
,
and the reliance thereon in
Du Preez
,
in any event invites consideration in the context of the remarks
thereanent in
Schutte v Five Lakes Farms CC
and others
WCC case no. 18104/14 (unreported
judgment of Van Staden AJ, dated 15 February 2018) at paras. 50-52.