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[2021] ZAWCHC 117
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Digmore Prop CC v Langverwacht Landscaping (Pty) Ltd and Another (8632/20) [2021] ZAWCHC 117 (7 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER 8632/20
In
the matter between:
DIGMORE
PROP
CC
Applicant
And
LANGVERWACHT
LANDSCAPING (PTY) LTD
1
st
Respondent
MINISTER
OF HUMAN SETTLEMENTS, WATER
AND
SANITATION
2
nd
Respondent
JUDGMENT
DATED 07 JUNE 2021
KUSEVITSKY,
J
Introduction
[1]
In this application, the Applicant seeks an
interdict restraining the First Respondent from utilising a borehole,
referred to in
these proceedings as “borehole 1”, in
violation of the National Water Act no 36 of 1998 (“
National
Water Act&rdquo
;) and from utilising the leased property for any
purpose other than residential and agricultural purposes. In the
alternative,
the Applicant seeks an interim interdict pending the
final determination of an action already instituted by the Applicant
under
case number 23264/18 (“the action”), restraining
the First Respondent from utilising borehole 1 on the leased property
in violation of the
National Water Act and
from utilising the leased
property for any other purpose than residential and agricultural
purposes.
[2]
In the further alternative and in the event of
the Court refusing to grant an interdict against the First
Respondent, the Applicant
applies for a mandamus directing the Second
Respondent to take and pursue immediate steps to prevent the First
Respondent from
further violating the
National Water Act in
respect
of the water resources upon and available to the leased premises.
[3]
The Second Respondent has not opposed these
proceedings and abides by the decision of the court.
Background
[4]
During May 2010, the Applicant and the First
Respondent concluded a written agreement of lease in terms whereof
the Applicant leased
a portion of land comprising 2HA of ground
including cottages, owned by the Applicant to the First Respondent
for a period of five
years (“the leased property”). When
that lease expired, the parties entered into a new written lease
agreement
with similar terms during July 2015 (the “lease
agreement”).
[5]
The Applicant alleges that the First Respondent
breached the provisions of the lease agreement and that such breach
entitled the
Applicant to cancel the lease agreement on 12 September
2018, alternatively on 31 October 2018.
[6]
The First Respondent disputes that it was in
breach of the provisions of the lease agreement when the Applicant
purported to cancel
the lease agreement, or that the Applicant was
entitled to cancel the lease agreement when it purported to do so.
[7]
On 19 December 2018, the Applicant instituted an
action in this Court against the First Respondent as stated above, in
which action
the Applicant claims
inter alia
an order confirming the cancellation of the lease agreement and
ejectment of the First Respondent. In respect of the averments
made
and arguments presented in this application surrounding the merits or
demerits thereof, I am not going to deal with the validity,
or not,
of the cancellation of the lease agreement to the extent that that is
a dispute which has to be adjudicated in the action
proceedings. What
is relevant for the purpose of this application, is whether the
Applicant has satisfied the requirements for
the relief to which it
claims.
[8]
The
Applicant states that the First Respondent’s first lease
agreement entitled it to use the premises for residential and
agricultural purposes only
[1]
.
It also claims that the First Respondent was limited to operating a
nursery only, as is evidenced by clause 16 of the first lease
agreement which states the following:
“
16.
The coming into effect of this lease agreement is subject to the
Lessee successfully concluding an agreement
with the Lessor’s
current Lessee of the premises, Samgro CC, in term of which the
Lessee is to purchase from Samgro CC all
nursery tunnels, planting
lanes and general equipment used by Samgro CC in the operation of its
nursery activities
on the premises. The Lessee shall use its best endeavours to procure
the fulfilment of this suspensive condition within 21 (twenty-one)
days after the signature of this agreement
…”
[9]
Moreover, the first lease
agreement also regulated the First Respondent’s water usage on
the property, which is evident by
the following clause:
“
14.
WATER & ELECTICAL COSTS
The
2 ha allocation of scheme water cost shall be solely for the use of
the Lessee unless in times of emergency or borehole pump
failure, the
cost of which will be invoiced annually by the Lessor on receipt of
the account
.”
[10]
The second lease agreement had the same
provisions in respect of the above usage and enjoyment of the leased
property as the first
agreement.
[11]
It is common cause that borehole 1 supplies
household water to the remainder of the property occupied by the
Applicant. The pump
to the borehole is connected to a power supply
situated on the leased property. Clause 13 of the lease agreement
records that whilst
the Applicant would be entitled to utilise the
water from the borehole, the First Respondent would pay the
electrical charges in
respect thereof. It was said that the second
borehole on the property is not viable. The water emanating from
borehole 1 is the
only source of potable water currently available on
the property.
[12]
The other water sources are the water from the
Moddergat River which is primarily available over the winter period
and the stream
is not viable particularly during the dry summer
months. The third source is water from the Theewaterskloof scheme.
This supply
is not potable water.
[13]
According to the Applicant, the First Respondent
was only entitled to utilise the leased property for residential and
agricultural
purposes and for no other purpose.
[14]
The First Respondent has admitted that it
conducts the business of a nursery and landscaping business from the
leased premises but
denies that it is operating its business for
commercial purposes.
The
Applicant’s submissions
[15]
The grounds upon which the Applicant bases its
application for interdictory relief against the First Respondent are
the following
:-
15.1
First, that a lease agreement between the
Applicant as lessor and the First Respondent as lessee in respect of
immovable property,
has been validly cancelled by the applicant (on
12 September alternatively 31 October 2018) and as a result,
the First Respondent
is not entitled to utilise the leased property
or the water resources upon the leased property and in any event,
that the First
Respondent’s utilisation of the borehole on the
leased property for commercial purposes, constitutes an ongoing
violation
of the lease agreement. As I have stated before, the
dispute regarding the cancellation of the lease agreement will not be
dealt
with in this judgment for reasons already advanced.
15.2
Second, that in utilising the water
resources upon the leased property, the First Respondent has violated
and continues to violate
the
National Water Act and
the Applicant
seeks an order preventing the ongoing violation of the Water Act by
the First Respondent.
15.3
Third, that the Second Respondent called
upon the Applicant to stop the extraction of water from borehole 1
for commercial purposes
(ostensibly on 19 February 2020) and that the
only way in which the Applicant can ensure compliance is by obtaining
an interdict
against the First Respondent.
15.4
Fourth, that the First Respondent’s
“
unbridled and unlawful use
”
of the borehole places its further viability at risk and as it is the
only source of potable water available on the Applicant’s
property, such extraction places the Applicant at risk of irreparable
harm in that, without potable water the value of the
Applicant’s property will substantially
reduce.
The
First Respondent’s submissions
[16]
The First Respondent states that at all relevant
times, its business operations consisted of landscaping and
irrigation design,
landscaping, maintenance of irrigation and a
wholesale nursery operation. The First Respondent falls under and is
registered as
an enterprise under the agricultural Sector Education
and Training Authority (SETA) that qualifies as an agricultural
enterprise.
[17]
Since its inception, the landscaping division of
First Respondent’s business has been central to its operations
in that the
nursery division cultivates and grows plants that are
supplied to the landscaping division for use in landscaping projects
and
as such, the two divisions are from an administrative and
financial perspective, integrated.
[18]
At the early stages of the First Respondent’s
business, the First Respondent’s business was managed from
offices in
Stellenbosch whilst its nursery division was situated at
Zevenrivieren in the Banhoek Valley. The First Respondent’s
business currently employs 165 employees of whom 19 work exclusively
in the nursery division at the leased property and 4 are employed
to
manage and perform all the financial, administrative and design
functions in respect of both divisions in offices situated in
the
cottage on the leased property. The rest of the First
Respondent’s employees are employed in the landscaping division
at satellite premises away from the leased property.
[19]
The First Respondent further states that during
the period 2002 until 2010, one Daryl Peter Sampson (“Sampson”)
conducted
a nursery business, Samgro CC, at the leased property,
which it in turn leased from the Applicant, which it says was on
similar
terms as the lease agreement between the Applicant and the
First Respondent. The First Respondent annexed an unsigned lease
agreement
between Samgro and the Applicant to its answering
affidavit. Sampson ostensibly wanted to relocate his business and he
and First
Respondent entered into negotiations regarding the sale of
certain of Samgro’s nursery infrastructure.
[20]
Pursuant to negotiations during 2010, the First
Respondent purchased the nursery infrastructure established at the
leased property
from Samgro; concluded a lease agreement with the
Applicant and proceeded to use such infrastructure in the conduct of
its nursery
business on the leased property.
[21]
The First Respondent states that during the
period of the first lease, from 2010 to 2015 and to the knowledge of
the Applicant,
the First Respondent utilised water extracted from
borehole 1 situated on the leased property and at the cottages on the
leased
property for
the
nursery division of its business.
[22]
The First Respondent alleges that borehole 1 on
the leased property was also utilised by Samgro for its nursery
business during
its tenancy of the leased property. This however was
denied by Sampson in a supporting affidavit deposed to by him. In the
affidavit,
he confirmed that he and the Applicant entered into an
oral agreement of lease in respect of the leased property during
2002; that
at the time of the agreement, borehole 1 was not yet in
existence; and to the best of his knowledge, the borehole was
established
during or about 2004 and that Samgro CC in fact
contributed approximately 50% of the cost of establishing the
borehole. He also
confirmed that during or about 2010, Samgro CC had
sold certain of the structures, equipment and plants of the nursery
business
conducted by it on the leased property to the First
Respondent.
[23]
First Respondent also stated that ‘
to
his knowledge’
, Mrs Buchanan, the now
sole member of the Applicant, also used water from borehole 1 for
washing oyster tanks and vehicles transporting
oyster tanks for a
business conducted by her under the name Mini Oceans. First
Respondent however does not state how he came
to this knowledge.
[24]
First Respondent also relies on an email sent by
the Applicant, which it states presented to it that there was an
abundance of water
on the property, including three boreholes,
available to the First Respondent for use in its business and at the
time the email
was sent, Mrs Buchanan acting on behalf of the
Applicant, was aware of the water intensive business conducted by the
First Respondent.
It says that the First Respondent entered into, and
extended the lease agreement because of the abundance of water
resources.
[25]
In this email, sent on 25 September 2014, Mrs
Buchanan records the following:
“
The
property has river rights on the Moddergat River, a perennial stream
which runs through the property. It has two boreholes,
the strongest
of which delivers 80,000 litres per hour and a third which is on the
boundary. Furthermore the property has 2HA of
pressurised irrigation
water supplied by Wynland Water from Theewaterskloof dam which is
piped underground through an extensive
irrigation system. This
irrigation system can alternatively be supplied by the boreholes and
river water offering three supplies
of water. The river water is
piped from the weir at the highest point of the property and can
supply additional water to any point
on the property. This abundance
of water has previously been used for aquaculture and nursery usage.
”
[26]
The
Applicant admits sending the email to Mr Colyn representing the First
Respondent, but states that it was sent to assist the
First
Respondent in obtaining finance to purchase the property from the
Applicant.
[2]
[27]
The lease agreement, as the previous lease had,
provides that the First Respondent may
inter
alia
use the leased property for residential
and agricultural purposes only.
[28]
First Respondent also says that neither the lease
agreement, nor the previous lease excludes or restricts the use of
water from
borehole 1 that is situated on the leased property, by the
First Respondent for purposes of its nursery business.
[29]
The First Respondent states that prior to 2018,
there was no record of any complaint by the Applicant about the use
of water from
borehole 1 by the First Respondent for purposes of its
nursery business, notwithstanding the fact that the Applicant was
clearly
aware of such usage. As a result of a drought in the Western
Cape during 2018/2019, there was a general shortage of water
available
in the Western Cape which necessitated an increase in the
use of water from borehole 1.
[30]
Pursuant to discussions between Mr Colyn and the
late Mr Buchanan on behalf of the Applicant, who at that stage was
the sole member
of the Applicant, the Applicant’s attorney
addressed a letter to the First Respondent on 23 February 2018 in
which he confirmed
that the Applicant gave the First Respondent
access to water from borehole 1 on certain conditions.
[31]
The latter stated that in terms of clause 13 of
the agreement of lease, the Applicant allocated the scheme water to
which the property
was entitled for the use of the lessee, subject to
their right to utilize it in terms of emergency or if there was a
failure in
respect of the borehole; that the annual
quota
runs from September each year and as a result of the excessive use of
quota
water, the First
Respondent had already exceeded the
quota
on 12 February 2018. As a result of this, the Wynland Water Users’
Association gave notice to the Applicant to terminate
the use of the
water on 12 February 2018. It recorded that there were two boreholes
on the property, namely a borehole that had
not been in use for some
20 years; and a borehole (borehole 1) that was utilised for domestic
use as described in schedule 1 to
the
National Water Act.
[32
]
As a result of this termination, the Applicant
gave the First Respondent access to water from borehole 1. Pursuant
thereto, the
Applicant installed a pump which has resulted in the
supply of water to the Applicant’s place of residence being
interrupted.
It concluded that it would be willing to assist only if
the First Respondent could satisfy the Applicant
inter
alia
that its water use was in compliance
with the
National Water Act; and
the extraction of water is limited
so that the ongoing viability of the water resource was not placed at
risk.
[33]
On 10 September 2020, Werner Lamprecht, a
director of WL Waterworx (Pty) Ltd deposed to a supporting affidavit.
In it he stated
that during January 2018, the First Respondent
contracted Waterworx to inspect a submersible water pump in borehole
1 situated
on the leased property that was not functioning properly,
and to test the borehole. The test established that the borehole
consistently
produced 2250 litres per hour of water and not 80 000
litres as alleged by Mrs Buchanan in her email of 25 September 2014,
whilst the water level remained constant. It also stated that water
from borehole 1 is pumped into a storage tank from where a
booster
pump pumps water on user demand to the Buchanan household, to the
cottage and labourer’s cottage on the leased property.
Any
overflow water is directed from the water tank on the leased property
to the First Respondent’s nursery when the water
tank is full
and no other users demand water.
[34]
During March 2018 and at the request of the First
Respondent, Waterworx also tested the second borehole on the
Applicant’s
property in the presence of Mr Colyn and the late
Mr Buchanan, inserted new sleeves in the second borehole and
recommended that
a pump with a sustainable delivery rate of
approximately 70% of its capacity be installed. In doing so, it
also tested the
water quality of the second borehole and established
that the water from the second borehole was potable.
[35]
During 2019, Waterworx was again requested
by the First Respondent to inspect the water supply from the dam and
borehole 1, this
after the prolific drought in the Western Cape.
After conducting a test over a 72 hr. period, a report concluded that
the borehole
yielded 2035 litres per hour from the 11
th
hour onwards, whilst the water level remained constant at 86m. In
light of the test results, Colyn recommended a pump delivery
rate of
70% of the consistent yield obtained, equalling 1500 litres per hour
and calibrated the pump to regulate the supply not
to exceed a yield
of 1500 litres per hour.
[36]
Waterworx was again called to inspect borehole 1
after the First Respondent advised it that Mrs Buchanan had caused
different filters
to be installed and had made certain alterations to
the water supply system. It reported that the water metre installed
at borehole
1 does not record volume or the quantity of water pumped
from the borehole 1 to the First Respondent’s nursery and
neither
to any of the recipients of water from borehole 1.
[37]
The
Applicant takes issue with some of Lamprecht’s calculations;
for example in the two reports
[3]
the depth of the same borehole is reflected as 85m and 88m
respectively.
[38]
In the report dated 1 September 2019 it was
alleged that the pump was at a depth of 86m – ostensibly deeper
than the actual
borehole reflected in the report of 16 January 2018
(WL1) as being 85m.
[39]
However, what emerged from the two reports is
that the different yields of 2250 litres per hour on 16 January 2018
was considerably
more than the yield measured later on 1 September
2019 at just 2035 litres per hour.
[40]
This means that not only was there a marked
decrease in the yield, but the water level of the borehole sank from
76m to 86m, this
despite an amended calibration of 70% of its alleged
capacity.
[41]
The First Respondent states that on 10 April
2018, shortly after the sudden passing of Mr Buchanan, who at that
stage was the sole
member of the Applicant, the Applicant’s
attorney addressed a letter to the First Respondent in which he
stated on behalf
of the Applicant:
“
1.1.
As we understand it you are currently drawing approximately 1000
litres per hour from the borehole that has historically
been in use
(the so-called “cottage borehole”). Subject to the
conditions set out in paragraphs 8 and 10 of our
letter dated 23
February 2018, our client is prepared to allow the aforesaid level of
consumption from the said borehole, provided
that is not exceeded and
sustainable.
1.2
We have also been instructed that you have caused a sleeve to be
inserted in the borehole described in sub-paragraph
5.1 of our letter
dated 23 February 2018. Our client is prepared to allow you to
utilize the said borehole (again subject
to the conditions set out in
paragraphs 8 and 10 of our letter dated 23 February 2018.)”
[42]
The First Respondent states that the complaints
about the First Respondent’s use of water extracted from
borehole 1 for its
nursery business, upon which the Applicant seeks
to rely for the cancellation of the lease agreement, only arose after
the death
of Mr Buchanan on 1 April 2018. The First Respondent
claims that this is a vendetta against it and that the Applicant has
furthered this aim by rallying the Second Respondent to assist it in
achieving its aim. It further states that when this did not
succeed,
it resorted to these proceedings.
[43]
First Respondent concludes that prior to his
death, Mr Buchanan agreed to have the second borehole commissioned to
provide additional
water to the First Respondent’s nursery.
This is according to an email sent by him to Mr Colyn on 25 March
2018. What is
however apparent from this email is a recordal that
borehole 1 was now fully operational, however Mr Colyn advised him
that he
still required
additional
water; that arrangements were being made to install his old pump in
borehole 2 which would be designed to have a week’s backup
water for the nursery should the other systems go down; and regarding
the river supply, that neighbours have been patrolling the
river and
asking questions about the water supply. He instructed Mr Colyn that
the river and weir had to be put back to its original
state urgently
and that the trench that was dug by him, be filled up before the
winter rains.
Can
the Applicant seek an interdict to restrain the First Respondent from
utilising Borehole 1 in violation of the
National Water Act?
[44
]
Section 22(1)
of the
National Water Act provides
as follows:
“
22.
Permissible water use.
(1)
A person may only use water—
(a)
without a licence—
(i)
if that water use is
permissible under Schedule 1;
(ii)
if that water use is
permissible as a continuation of an existing
lawful use
; or
(iii)
if that water use is permissible in terms of a general authorisation
issued under
section 39
;
(b)
if the water use is authorised by a licence under this Act;
…
Schedule 1
PERMISSIBLE
USE OF WATER
[Sections 4 (1)
and 22 (1) (a) (i) and Item 2 of Schedule 3]
(1)
A person may, subject to this Act—
(a)
take water for reasonable domestic use in that person’s
household, directly from any water resource to which that person has
lawful access
;
(b)
take water for use on land owned or occupied by that person, for—
(i)
reasonable
domestic use
;
(ii)
small gardening not for commercial
purposes; and
(iii)
the watering of animals (excluding feedlots) which graze on that land
within the grazing capacity of that
land, from any water resource
which is situated on or forms a boundary of that land, if the use is
not excessive in relation to
the capacity of the water resource and
the needs of other users;
(c)
store and use runoff water from a roof;
(d)
in emergency situations, take water from any water resource for human
consumption or firefighting;
(e)
for recreational purposes—
(i)
use the water or the water surface of a water resource to which that
person has lawful access;
or
(ii)
portage any boat or canoe on any land adjacent to a watercourse in
order to continue boating on that
watercourse; and
(f)
discharge—
(i)
waste or water containing waste; or
(ii)
runoff water, including stormwater from any residential,
recreational, commercial or industrial site,
into a canal, sea
outfall or other conduit controlled by another person authorised to
undertake the purification, treatment or
disposal of waste or water
containing waste, subject to the approval of the person controlling
the canal, sea outfall or other
conduit
.”
[emphasis added]
[45]
It is common cause, on the First Respondent’s
own version, that it it utilizing and extracting water for its
landscaping enterprise.
This is not permissible under the
National
Water Act.
>
[46]
First
Respondent denies that it uses the borehole for commercial purposes.
In fact, it states that it does not know what the word
‘
commercial
purpose’
is. I am entitled to reject this denial as so implausible and far
fetched
[4]
, especially in light
of its description of its business in its answering affidavit and the
size of the workforce that it employs.
[47]
The second contention in its justification for
utilizing the water is reliance on the fact that Samgro had also
utilised the borehole
water on the leased property for its nursery,
just as it is doing. Whilst it must be accepted that no borehole
existed prior to
2004, on the Applicant’s version no borehole
existed prior to the purchase of the property, and Sampson’s
averment
that his business contributed to 50% of the cost of
installing the borehole, it would make no sense for it to have paid
money and
not have benefitted from that installation in any way. In
that regard, the inference can be drawn that it too utilised water
from
borehole 1 after its installation in 2004. I will deal with the
relevance of the date in a moment. I also accept that based on the
lease agreement and the correspondence, that the First Respondent was
similarly entitled to utilise water from borehole 1, but
within
limitations imposed by the Applicant.
[48]
Section 1(b)(ii)
of Schedule 1 of the
National
Water Act restricts
water use to small gardening not for commercial
purposes. The fact that Applicant allowed Samgro to undertake a
nursery business
on the leased premises - in fact stipulated it as
part of a condition precedent to its lease agreement that it purchase
Samgro’s
equipment used in its nursery activities, one can
accept that the Applicant at that stage was not too concerned about
flouting
the provisions of the
National Water Act in
allowing the
nursery operations of Samgro and thereafter the First Respondent. And
understandably, this was also the conclusion
reached by the Second
Respondent when it issued a directive against the Applicant.
[49]
However, can the Applicant now rely on an
unlawful conduct which was initially granted to an entity, to claim
the non-compliance
of a provision for the very same conduct that it
had previously sanctioned? In other words, whilst it suited the
Applicant to turn
a blind eye to the contraventions, can it now rely
on that very same conduct to penalise the First Respondent?
[50]
It is accepted that consent can never be given
for an illegal act and that consent to an illegal act does not
validate that which
is in law, impermissible. If there is a
contravention of the Water Act, then such conduct should be dealt in
accordance with
the penal provisions as provided for in the Water
Act, notwithstanding that such conduct was initially permitted by a
landowner.
Failing any action taken by the relevant statutory
authorities, such party should be interdicted from further unlawful
conduct.
Statutory
Existing Water Use
[51]
The second challenge
to its use of borehole 1 for its nursery and landscaping business, is
the contention by the First Respondent
that the extraction and usage
of water from borehole 1, constitutes an existing water use, and
therefore permitted in terms of
section 22 (1)(a)(ii) the Water Act,
which provides that a person may only use water if that water use is
permissible as a continuation
of an existing lawful use.
[52]
Section 32
of the
National Water Act,
inter
alia
, provides
that:
“
32
Definition of existing lawful water use
(1)
An existing lawful water use means
a water use
-
(a)
which has taken place at any time during a period of two years
immediately before the date of commencement of this Act
and
which–
(i)
was authorised by or under any law which was in force
immediately before the date of commencement of this Act;
(ii)
is a stream flow reduction activity contemplated in section 36
(1); or
(iii)
is a controlled activity contemplated in section 37 (1); or
(b)
which has been declared an existing lawful water use under section
33.
”
[53]
Section 34
of the
National Water Act,
inter
alia
, provides
that:
“
34
Authority to continue with existing lawful water use
(1)
A person, or that person's successor-in-title, may continue with an
existing lawful water use,
subject to-
(a)
any existing conditions or obligations attaching to that use;
(b)
its replacement by a licence in terms of this Act; or
(c)
any other limitation or prohibition by or under this Act.
(2)
A responsible authority may, subject to any regulation made under
section 26 (1) (c), require
the registration of an existing lawful
water use.
”
[54]
In
Witzenberg
Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd and Another
,
the Western Cape Division (
per
Cloete J) succinctly explained the meaning of an “
existing
water use
”
as follows:
[5]
“
The
concept of ‘existing lawful water use’ was introduced by
ss 4, 22 and 32 – 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)
.”
[55]
The
National Water
Act commenced
on 1 October 1998. To meet the first requirement
of
Section 32
, such use accordingly had to have been in place two
years before 1 October 1998. Additionally, even if such use
existed,
which the Applicant stated it had not, one of the
requirements of subsections 1(a)(i) to 1(a)(iii) above also had to be
met, and
in
casu
,
none of those criteria had been established.
[56]
Sections 32
,
33
,
34
and
34
of the
National Water Act provide
the statutory framework for
the continuation of a qualifying existing lawful water use. The
Applicant states that none of the above
provisions apply in this
instance. This is because the use of borehole 1 is not a qualifying
‘existing water use’,
as it was only drilled in 2004.
Notwithstanding, the use does not meet any of the other criteria set
out in the aforementioned
sections and in any event, no such use was
registered by the cut-off for submissions of such registrations,
which was 3 June 2001.
[57]
The
First Respondent relied on a desktop study undertaken by a company
called Scientific Aquatic Services, instructed by the First
Respondent, for this proposition. In the report
[6]
it
states that a borehole was identified within the study area. It went
on to state as follows:
“
As
per discussions with the tenant
, this
borehole water is utilised for domestic purposes, with additional
water utilised for irrigation of the nursery.
As
per discussions with the project team
,
these boreholes were drilled, and water abstraction commenced prior
to 1998….The use of the borehole may therefore be seen
as an
existing lawful water use (on provision of proof of operation between
1996 – 1998 in accordance with the National Water
Act, 1998
(Act No. 36 of 1998).” (“My emphasis”)
[58]
The report does not
specify who the
project
team
is
comprised of and what information was sourced to come to the
conclusion that the boreholes on the leased property
were
drilled prior to 1998
.
As mentioned before, this is the operative date as ‘
Existing
lawful water uses’
are dealt with in Part 3 of Chapter 3, from
sections 32
to
35
of the
National Water Act. The
inference of course is that it is the
First Respondent itself who gave the company the instructions and
ostensibly the relevant
date (to its advantage) as to when the
borehole was ostensibly drilled and it is therefore no surprise that
that date just happen
to coincide with the timeframe which would
qualify the water use from borehole 1 as an ‘existing water
use’.
[59]
Mrs Buchanan states
that the second borehole was not operative when she and her late
husband took occupation of the property in
1994. The First
Respondent denies this but offers no credible evidence, other than
what is stated in the report, as a basis
for this denial. It then
remarkably again refers to the email of 25 September 2014 wherein Mrs
Buchanan refers to the features
of the property, including water
rights and buildings situated on the property. I have already
dealt with the context in
which that letter was sent. The Applicant
states that this email was sent to Mr Colyn as a motivation to the
banks so that he could
obtain finance to purchase the property. It is
common cause that this did not materialise. The reliance, once again,
on that email
as proof that the borehole was drilled prior to 1994 is
a futile grasping at straws in my view, and is opportunistic and
misguided.
It then remarkably also relied on the affidavit of
Mr Lamprecht in the answering affidavit to confirm that there are
three operating
boreholes – as ostensible
proof that the boreholes existed at that time. But no-where does
Lamprecht actually
say in his affidavit that the borehole was
operative prior to 1994.
[60]
The
First Respondent thereafter takes issue with the fact that neither
the Applicant nor the attorney informed it that borehole
1 was only
established during or about 2004. This is because if it is, that
would justify the First Respondent’s entitlement
to extract
water from the borehole in terms of
section 22(1)(a)(ii)
of the
National Water Act. I
am satisfied that the self-created reliance of
a fact (in other the words, its denial) conjured up by the First
Respondent to gainsay
that which the Applicant says as to when the
borehole became operational, can safely be rejected as improbable and
false.
[7]
[61]
The final argument
by the First Respondent is the suggestion that the Applicant
is able to rectify this defect / unlawful act, by simply
registering borehole 1 for commercial purposes. It should be
remembered
that the starting point of this application is the
Applicant’s concern that borehole 1 is the only source of
potable water
for its domestic use on the property, and despite
attempts to curb the extraction of water from borehole 1 by the First
Respondent
for its nursery and landscaping business, that it is
concerned about the viability of the water resource.
[62]
The tenant essentially wishes to dictate
to the landowner what it should do on its own property. If the
Applicant promised the First
Respondent that it was entitled to
operate a landscaping business for commercial purposes on the
property in terms of the lease
agreement, then that it a dispute that
falls outside the ambit of this application. But taking into account
the current
status quo
,
there is no permit authorizing either the Applicant or the First
Respondent from utilizing for the said purpose other than for
the
purposes as envisaged under subsection 1(b) of Schedule 1 of the
National Water Act.
[63]
It is trite 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. In
dealing with the last leg of the enquiry, I will
explore the
alternative relief claimed by the Applicant, in the form of a
mandamus against the Second Respondent.
Mandamus against
the Second Respondent
[64]
The Second
Respondent has chosen not to participate in these proceedings. This
is rather unfortunate, especially given that water
is such a precious
and unpredictable resource, the protection of which should be of
paramount concern to the authorities that are
mandated to protect the
usage thereof.
[65]
It is common cause
that there has been several correspondence between the Applicant and
the Second Respondent complaining of the
First Respondent’s
non-compliance of its water use. In February 2019, the
Applicant delivered a written complaint regarding
the First
Respondent’s unlawful water usage to the Department. It
inter
alia
averred
that First Respondent was utilizing water on the property and from
water belonging to a neighbouring property in violation
of
restrictions imposed in terms of the
National Water Act. It
also
complained that First Respondent was using water from the borehole
for commercial purposes on an extensive basis. It was also
extracting
water from the Moddergat River in an unlawful fashion and unlawfully
dug a trench into which water was discharged.
[66]
On 11 March 2019, the
Department through one Mr Mowzer, replied to Mrs Buchanan directly.
He agreed with the impact suffered
and asserted that he had issued
the First Respondent with a “
pre-directive
”
to cease all unlawful activities. Mr Mowzer suggested that the
Applicant close borehole 1 if it was in control thereof.
[67]
On 12 March 2019, the
Applicant’s legal representative, Mr Kulenkampff
(“Kulenkampff”) replied to Mr Mowzer, on
behalf of the
Applicant, and explained why it was not possible to close borehole 1,
inter alia
,
since the Applicant relies upon it for domestic water to the main
house as its only source of potable water on the property. It
requested the Second Respondent to undertake an investigation.
[68]
On 20 March 2019,
Kulenkampff provided an update to Mr Mowzer in respect of the
borehole, extraction of water from the Moddergat
River and the
trench. That prompted further exchanges that culminated in an e-mail
from Mr Mowzer, dated 28 March 2019, confirming
that Department had
issued a directive to the First Respondent.
[69]
On 16 May 2019, Kulenkampff
requested the Department to furnish a copy of the directive referred
to by Mr Mowzer. However, the response
received from the Department
on 20 May 2019 was that no direction had been issued. The
Department’s communication on 20 March
2019, stating that it
had issued a directive, was therefore misleading.
[70]
Further exchanges between
Kulenkampff and Mr Mowzer ensued. In an e-mail dated 7 June
2019, Kulenkampff made the Applicant’s
position clear with
regards to borehole 1:
“
3.
It is blatantly clear that the borehole water is currently being
utilised for commercial purposes;
4.
Our clients wants to know of and understand the remedial steps that
Langverwacht Landscaping (Pty)
Ltd had to implement so that it can be
satisfied with the implementation thereof;
5.
Our client wants to introduce appropriate measures to police the
extraction of water from the
Moddergat River so that the licence
conditions are not exceeded
.”
[71]
The Applicant further
states that in a telephone exchange between Kulenkampff, Mr Mowzer
alleged (incorrectly) that the Applicant’s
own use of the
borehole (for domestic purposes) was unlawful “
if
it is not registered
”.
Kulenkampff reminded Mr Mowzer of the provisions of the
National
Water Act and
the fact that the borehole need not be registered with
any municipality (as it is not an urban municipal property) for it to
be
used for domestic purposes.
[72]
Thereafter, on 9 September
2019, the Department issued the Applicant with a directive that
alleged the Applicant had been in breach
of the
National Water Act.
Kulenkampff
responded to that directive two days later, on 11
September 2019. In that response, Kulenkampff pointed out that it is
the First
Respondent that is unlawfully abstracting water from
borehole 1 and called for action against it. The
Applicant stated
that its use is a permissible use of water as
described in Item 1 of Schedule 1 to the
National Water Act.
>
[73]
On 30 September 2019, the
Department issued a directive to the First Respondent to cease using
the borehole water. In stated that,
following a site inspection on 23
August 2019, that the First Respondent
inter
alia
immediately
cease taking borehole water from the property and apply for
authorisation; and provide the Department with readings
from the
meter regarding its abstraction from the first date of use until 30
September 2019.
[74]
On 7 October 2019, the
attorneys for First Respondent, Cluver Markotter wrote to the
Department, challenging that directive and
contending that its
abstraction of water from borehole 1 was an “
existing
water use
”.
The only basis for that assertion, it was said, was Mr Mowzer’s
alleged verbal confirmation that the First Respondent’s
use
constitutes an existing water use.
[75]
When there was no further
progress, on 4 November 2019, Kulenkampff again wrote to the
Department. It was pointed out that
the First Respondent had,
between the period 10 October 2019 and 31 October 2019, utilised
220 000 litres of borehole water.
[76]
On 11 December 2019, Mr
Mowzer indicated that the Department would consider criminal
proceedings against the First Respondent if
it did not cease to use
the borehole water.
[77]
Thereafter, representatives
from the Department visited the property on 20 December 2019 and
subsequently delivered a report on
8 January 2020 which,
inter
alia
, reiterated
that the First Respondent’s commercial use of the borehole had
to cease.
[78]
On 23 January 2020, a
meeting was held between the Applicant, Kulenkampff and
representatives from the Department. Pursuant
to that meeting,
Kulenkampff circulated an e-mail recording the salient points of that
meeting,
inter
alia
reiterating
that the Applicant is not an enforcement authority and requested that
the Department ensured that there was no transgression
of unlawful
acts.
[79]
Then, on 13 February 2020,
the Department again issued a directive to the First Respondent to:
“
4.1.1
Immediately cease taking borehole water from the property, and apply
for authorisation;
4.1.2
Provide [the Department] with water readings from the meter regarding
[its] abstraction from
first date f use until 31 January 2020;
4.1.3
Remove plastic lining from the weir on the boundary of Erf 191
Portion 1;
4.1.4
Failure to cease the borehole activities by 16 February 2020, the
Department will permanently
seal the borehole
.”
[80]
On 19 February 2020, Cluver
Markotter responded to the directive. Again, they contended that the
First Respondent’s use of
the borehole was an
existing
water use
. Again, as
substantiation for that assertion, they referred only to Mr Mowzer’s
alleged characterisation of the First Respondent’s
use as an
existing water use. Since that assertion was not refuted by the
Department, they wrote, it must be accepted as
true. Additionally,
they alleged that any enquiry or action in respect of any unlawful
water use must be directed at the Applicant,
as landowner. In
sum, they alleged that the directive was misdirected at the First
Respondent and alleged that “
there
is no empowering provision in the
National Water Act that
allows the
Department to issue a directive to [the First Respondent] in terms of
Section 53(1)(a)
of the
National Water Act
&rdquo
;.
[81]
Thereafter, also on 19
February 2020, the Department,
per
Mr Mowzer, e-mailed Kulenkampff, enclosing a draft directive that
alleged the Applicant to be in breach of the
National Water Act.
In
relevant part, that directive reads:
“
1.
As a result of a site inspection conducted by official from this
Department on 07 February 2020, this
Department is of the view that
you are not complying with the provisions contained in Chapter 4 of
the Act and conditions which
apply to any authorisation to use water,
in that you are undertaking the following:
1.1.
Unlawfully altered the bed, course and the characteristic of the
watercourse;
1.2.
Directly and indirectly altered the physical, chemical or biological
properties of the watercourse;
1.3.
Taking ground water without water use authorisation.
…
3.
The Department has reached this conclusion as a result of the
following:
3.1.
Site inspection and the investigation conducted by the officials of
this Department on 07 February 2020.
”
[82]
On 28 February 2020, Cluver
Markotter wrote to Kulenkampff, alleging that the Applicant’s
removal of the plastic lining at
the weir constitutes an act of
spoliation.
[83]
On 9 March 2020, the
Department wrote to Kulenkampff, alleging that the Applicant –
not the First Respondent – had exceeded
the permissible quota
of 15 000 m
3
of water, per
annum for domestic use, from borehole 1. Without appreciating
that borehole 1 is the property’s only source
of potable water,
the letter concluded:
“
We hereby
instruct that your client cease taking water from the borehole and
close it
.”
[84]
On 16 March 2020,
Kulenkampff replied to the Department’s letter. He
reiterated that it was the First Respondent –
and not the
Applicant – that was at fault.
[85]
The Department replied on
17 March 2020. It alleged that the Applicant:
“
contravened
the General Authorisation [under Schedule 1 of the NWA] when [the
Applicant] entered into a lease agreement with firstly,
Samgro CC,
and Langverwacht Landscaping thereafter, which are commercial in
nature and not domestic use, as it was intended and
registered
.”
[86]
On the same day,
Kulenkampff responded and reiterated that the lease does not afford
the First Respondent the right to abstract
water from borehole 1.
The
Current Status
[87]
The Applicant avers that
the First Respondent continues to unlawfully abstract millions of
litres of water from borehole 1 for commercial
use and the Second
Respondent has failed to take any action against it, save for issuing
the directives referred to above. It states
that the Department’s
position appears to be that the Applicant is at fault for concluding
the lease agreement in the first
place, notwithstanding the fact that
(a) the lease does not contemplate the use of the borehole by the
First Respondent and (b)
that even if the lease permitted the First
Respondent’s use, such use remains unlawful in terms of the
National Water Act.
[88]
The Applicant’s
states that the aforegoing demonstrates the Applicant’s
exhaustive efforts to resolve the First Respondent’s
unlawful
commercial use of borehole 1. Accordingly, the Applicant has been
left with no alternative but to institute this application.
[89]
In my view, it does not belie a tenant to assert
whether or not a water use has been an existing water use or not,
especially where
that tenant has no personal knowledge thereof. The
owner of the property would be in the best position to assert the
correctness
thereof. Furthermore, the reliance by the First
Respondent of the previous tenant’s water use, to claim it as
an existing
use would also be of no assistance to the First
Respondent in order to justify its own unlawful activities.
[90]
The actions of First Respondent leave much to be
desired. Not only do they want to dictate what lawful owners can do
on their own
property, but they then attempt to solicit manufactured
information to justify their own unlawful conduct. If the owners no
longer
want them on their property as tenants, such is their right -
they most certainly cannot be bullied into registering a water use,
simply to justify the First Respondent continual use of borehole 1
for its commercial use.
[91]
It also seems as though they are attempting to
bully the owners into submission and take advantage of the situation.
Nothing was
more evident when, according to the Applicant’s
founding affidavit, Mr Colyn approached Mrs Buchanan, a mere week
after her
husband had died, with plans to renovate the leased
cottage.
[92]
The First Respondent claims that all of these
complaints are raised in an attempt to get rid of First Respondent so
that Mrs Buchanan’s
daughter can live on the property. The
simple answer is that if the Applicant choses not to renew a lease
agreement, or opts to
terminate it – such is their right. They
will have the usual remedies available to it.
[93]
The
law in regard to the grant of a final interdict is settled. An
Applicant for such an order must show a clear right; an injury
actually committed or reasonably apprehended; and the absence of
similar protection by any other ordinary remedy. Once the Applicant
has established all three requisite elements for the grant of an
interdict, the scope, if any, for refusing relief is limited.
[8]
The Supreme Court of Appeal in
Hotz
[9]
also held that the alternative remedy, had to be a legal remedy. In
some instances, the existence of another remedy will preclude
the
grant of an interdict against injury that is occurring or is
apprehended, such as in the case of a statutory breach, where
criminal prosecution, in appropriate circumstances, will provide an
adequate remedy. However it is clear that despite the Applicant’s
herculean attempt in engaging the Second Respondent, such effort
proved fruitless.
[94]
The Second Respondent is derelict in its duties
not to act against the First Respondent. They have options of either
imposing a
fine or charging the First Respondent criminally. Their
failure to do this and the First Respondent’s cavalier attitude
that
it is entitled to do what it pleases on another’s property
with impunity, should not be sanctioned. I am therefore satisfied
that even though the Applicant has satisfied the requirements for the
grant of a final interdict, that I will exercise my discretion
and
grant an interim interdict, pending the finalisation of the action
proceedings.
In
the result, the following order is made.
1.
An interim interdict is granted, pending the final determination of
the action between
the Applicant and the First Respondent under case
number 23264/18, interdicting and restraining the First Respondent
from:
(i)
Utilising the borehole identified in annexure “FA5” to
the Applicant’s founding affidavit, also known in the
application as Borehole 1, in violation of the National Water Act No.
36 of 1998 ( as amended).
(ii)
Utilising the leased property for any purpose
other than residential and agricultural purposes.
2.
Furthermore, a
mandamus
is also issued, directing the Second
Respondent, the Minister of Human Settlements, Water and Sanitation
to comply with its Constitutional
and Regulatory obligations by:
(i)
Taking immediate steps against the First Respondent to prevent the
First Respondent from violating the
National Water Act, No. 36 of
1998
in respect of the water resources upon and available on the
leased property.
3.
Costs will stand over for later determination.
DS
KUSEVITSKY
Judge
of the High Court, Western Cape Division
Counsel
for Applicant: Adv H van Rensburg
Instructed
by Kulenkampf and Associates
Counsel
for First Respondent: Adv P Coetsee SC
Instructed
by Cluver Markotter Inc.
Counsel
for Second Respondent: Notice to abide
[1]
Clause
10.1 of the Lease agreement dated 25 August 2010.
[2]
At
that stage, the First Respondent was granted a first option to
purchase the property in the event that the Applicant decided
to
sell it.
[3]
Annexures
WL1 and WL4
[4]
PMG
Motors Kyalami (Pty) Ltd and Another v FirstRand Bank Ltd, Wesbank
Division
2015 (2) SA 634
(SCA)
[5]
2018
(6) SA 307
(WCC), at para 13.
[6]
para
8, page 10 of the report
[7]
See
Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635D
[8]
Hotz
and Others v University of Cape Town
2017 (2) SA 485
(SCA) at para
29
[9]
Supra
para 36