Brief Summary

Contempt of Court — Breach of court orders — Application to compel compliance with prior court orders and declare respondent in contempt — Respondent failed to comply with 2016 order prohibiting diversion of water — Respondent's actions constituted clear contravention of court order despite claims of compliance — Court found respondent in contempt and granted final interdict.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were brought as an application in the High Court (Western Cape Division, Cape Town) seeking to compel compliance with two prior orders of the same court, to obtain contempt-related relief arising from alleged non-compliance, and to secure interdictory protection against alleged assault and threats. Although the notice of motion initially contemplated a rule nisi and interim relief, the matter ultimately proceeded on the basis that final relief was sought.

The applicants were Philippus Jakobus Viljoen (Snr) NO, Philippus Jakobus Viljoen (Jnr) NO, and Arnoldus Jacobus Stofberg NO, in their capacities as co-trustees of the PJ Viljoen Boerderytrust (the “Viljoentrust”), together with Philippus Jakobus Viljoen (Jnr) in a further cited capacity. The respondent was Hennie du Preez. The parties were farming neighbours with a history of prolonged litigation.

The procedural history centred on two earlier interim orders pending the finalisation of action proceedings under case number 15076/14. The first was an order of 25 June 2014 (Gamble J, case number 9833/14) regulating a stone deflection wall at a point in the stream where water was historically divided. The second was an order of 13 December 2016 (Davis J, case number 8067/2016) directing closure of a man-made channel (“the furrow”) and associated works used to divert water; that 2016 order had been appealed and the appeal was dismissed on 11 October 2017 by a full bench of the division.

The general subject-matter of the dispute concerned water abstraction and diversion works affecting the parties’ farms, specifically the flow from a stream system involving the Watervalstroom and its upper source, the Donkerkloofstroom, as well as conflict about inspection and maintenance of the watercourse and related confrontations between the parties.

Material Facts

The farms were situated along a watercourse system in which water flowed from a mountainous area down over Bergplaas towards Kanonkop and Dennelaan and then to De Liefde. The Viljoentrust owned De Liefde, while the respondent occupied (and was in the process of buying) Kanonkop, Dennelaan and Bergplaas. A central factual feature was the existence of a water source (Watervalstroom, flowing from Donkerkloofstroom) serving the farms, and a history of conflict about how water was diverted and shared.

In relation to the 2016 order, it was undisputed that in 2015 the respondent had opened an old, unused man-made channel referred to as “the furrow” and used it to extract water from the Donkerkloofstroom into installed works (including a manhole and an underground pipe) to convey water directly to Kanonkop. The 2016 order required the respondent (and other respondents in that matter) to close the furrow together with all pipes and relevant works installed in terms of which water had been diverted from the Watervalstroom or its sources to Kanonkop. The appeal against that order was dismissed on 11 October 2017.

It was common cause that, while the appeal was still pending, the respondent installed a new 110 mm PVC pipe leading from the entrance of the furrow to a manhole. The respondent accepted that his attorney told him on 11 October 2017 to close the furrow immediately in compliance with the 2016 order. The respondent contended that he removed an upper section of the pipe and moved it away from the furrow, and he relied on photographs taken on 13 October 2017. The applicants disputed that account, asserting that on 17 October 2017 a new pipe was positioned in the Donkerkloofstroom and used to convey water via the furrow to the manhole, with the manhole not being closed and water continuing via pipeline to Kanonkop.

What was not disputed was that on 23 October 2017 the Sheriff attended the site and issued a return recording that the furrow and associated works were closed as per the order, supported by photographs. The respondent did not dispute the Sheriff’s attendance and return. It was also not disputed that some water flowed through an asbestos pipe serving as an intake into the manhole, though the respondent contended this was attributable to a small fountain upstream and unrelated to earlier litigation.

In relation to events in August 2020, it was not denied that after heavy winter rains the applicants found the manhole reopened and water again flowing from the Donkerkloofstroom via the furrow to the manhole, and from there via a 110 mm pipe to Kanonkop. The applicants recorded what they found (including by drone footage) and demanded compliance by letter on 24 August 2020, which received no response. The respondent denied reopening the furrow personally and advanced explanations including reliance on the small fountain, an interpretation of the 2016 order as not requiring closure of the large pipe if used for a different source, and an assertion that flooding had washed the furrow open.

The small fountain issue was materially disputed, with opposing expert opinions: the applicants’ expert, Professor du Plessis, considered the small fountain water to form part of the Watervalstroom, while the respondent’s expert, Mr Theron, asserted it did not. It was common cause that, although the respondent alleged discovery of the small fountain in 2016, it had not been raised in prior litigation as an existing lawful use and had not been judicially determined in that context.

In relation to the 2014 order, the undisputed background was that the order concerned a point lower downstream in the Watervalstroom, described as the first division point, where a temporary stacked rock deflection wall (a “klipkeerwal”) was historically erected to divert water to De Liefde until De Liefde’s dams were full, after which it would be taken down to allow flow to Kanonkop. The 2014 order granted the applicants the right annually to erect such a deflection wall, with removal by the respondent after De Liefde’s dams were full.

It was common cause that on 5 June 2019 the respondent demolished the deflection wall and reconstructed it. The respondent claimed he did so because the wall was not operating as intended due to sand and debris and that he repacked it to conform with the 2014 order. The applicants contended that the rebuilt wall now allowed substantially more water through to Kanonkop (about a third), resulting in De Liefde receiving only about two-thirds of the flow at that division point, contrary to the arrangement protected by the 2014 order. The respondent attempted to attribute later repairs to the second applicant and his workers after an alleged flash flood in July 2019, but the applicants relied on correspondence from the respondent dated 31 July 2019 indicating that the respondent had recently reconstructed the wall, and on diary material suggesting the respondent’s recollection may have conflated events from June 2018.

In relation to personal violence, the applicants alleged an assault on 20 June 2017 at the Donkerkloofstroom area. On the respondent’s own version, he admitted slapping the applicant and holding him down while striking him further, though he asserted provocation. A further factual element was a WhatsApp message sent by the respondent on 24 August 2020 stating, in Afrikaans, that it appeared to be time again for “a lesson in manners” (“alweer”), which the applicants relied upon as a threat linked to the prior assault.

Legal Issues

The central legal questions concerned whether the applicants were entitled to final interdictory and enforcement relief compelling compliance with the 2014 and 2016 orders, and whether the respondent’s conduct justified contempt-related proceedings and protective interdicts restraining assault, threats, and interference with inspection and maintenance of the water sources.

A substantial component of the dispute involved the application of law to fact in motion proceedings, particularly whether the alleged contraventions of the existing court orders were established on the papers and whether any disputes of fact were genuine and material such that they could not be resolved without oral evidence.

A further legal issue arose from the respondent’s reliance on the small fountain: whether abstraction from that fountain fell within the ambit of the 2016 order (as a “source of the Watervalstroom”) or constituted a different source potentially supporting a distinct entitlement. This raised a factual dispute (including expert disagreement) with direct legal consequences for the scope of compliance and the appropriateness of contempt relief.

The claim for protection against assault and threats engaged the legal requirements for a final interdict, including whether there was a clear right, injury committed or reasonably apprehended, and the absence of an adequate alternative remedy.

Court’s Reasoning

The court approached the matter on the basis that final relief was sought. It set out the requirements for a final interdict, namely a clear right, an injury committed or reasonably apprehended, and the absence of similar protection by another ordinary remedy. It emphasised that irreparable harm is not a requirement for a final interdict, and noted that a clear right is a matter of substantive law.

Because the matter proceeded by motion, the court reaffirmed that motion proceedings are generally suited to resolving legal issues on common-cause facts, and not to determining probabilities on disputed factual disputes. The court applied the Plascon-Evans approach, explaining that final relief can be granted only where the admitted facts in the applicant’s affidavits, together with the respondent’s version, justify the order. At the same time, it considered the recognised qualification that a court is not required to accept denials that are bald, fictitious, palpably implausible, far-fetched, or clearly untenable on the papers.

On the 2016 order, the court identified the respondent’s own admissions as decisive in important respects. The respondent admitted installing the 110 mm pipe, which the court treated as a clear contravention of the 2016 order. The Sheriff’s return of 23 October 2017, which was not disputed, recorded that the furrow and relevant works were closed by the applicants’ side in execution of the order; however, the court noted that what the Sheriff found (including a new pipe positioned and conveying water to the manhole, and non-closure of the manhole and underground pipe) indicated that the respondent had failed to comply with what the 2016 order required, namely closure of the furrow, manhole, and pipes. The court rejected as contrived and highly improbable the respondent’s suggestion that someone else had staged the contravention by moving the pipe and sandbags, reasoning that the admitted facts supported the inference that the respondent had removed the pipe reluctantly and left it close enough to enable further diversion.

Regarding the August 2020 reopening, the court rejected the respondent’s explanation that flash flooding had washed open the works. It reasoned that the state of the site as discovered—reopening of the manhole and renewed flow via the furrow to the manhole and then through the 110 mm pipe—was inconsistent with the closure measures previously put in place with the Sheriff’s assistance, and that the respondent’s flood narrative was improbable and far-fetched, particularly given the physical indications referred to by the applicants (including the persistence of logs while rocks were allegedly displaced).

The respondent’s interpretive contention that the 2016 order did not require closure of the manhole and large pipe unless used for Watervalstroom sources was addressed by reference to the express wording of the order, which required closure of the furrow together with all pipes and works installed in terms of which water had been diverted from the Watervalstroom or its sources to Kanonkop. The court considered there to be no doubt that the manhole and large pipe were included because they were central to the prior litigation. The court nevertheless accepted, as a matter of interpretation of the order’s language, that if water were in fact from a different source (not the Watervalstroom or its sources), that abstraction would not be covered by the 2016 order’s prohibition as framed, while adding that any such abstraction would still have to be lawful and respectful of other parties’ rights. This interpretive issue was treated as intertwined with the small fountain dispute.

On the small fountain itself, the court held that the conflicting expert evidence and the broader disputes about whether the fountain formed part of the Watervalstroom system could not appropriately be resolved on affidavit. It considered the dispute to involve significant factual disagreements requiring testing through oral evidence. The court also treated it as material that, although the respondent alleged knowledge of the fountain since 2016, it had not been raised previously as an existing lawful use and thus had not been adjudicated. Because the small fountain question bore on whether contravention (and particularly contempt) could be determined, the court declined at that stage to grant the contempt relief sought in respect of the 2016 order, but still ordered the respondent to comply with the 2016 order to the extent that it applied to diversion from the Watervalstroom or its sources.

On the 2014 order, the court focused on the undisputed fact that the respondent demolished and reconstructed the deflection wall in June 2019, and on the consequences of the rebuilt wall’s operation. It reasoned that, even if the respondent’s stated motives were to restore proper operation, the 2014 order conferred the right to erect the wall on the applicants, not the respondent, and the respondent was not entitled to unilateral self-help. The court found the respondent’s attempt to attribute responsibility to the applicants’ later repairs to be improbable, particularly in light of the respondent’s own correspondence indicating he had recently reconstructed the wall, and because it would make little sense for the applicants to build a structure detrimental to their own water allocation.

The court treated it as not seriously disputed that the reconstructed wall’s outcome was that only about two-thirds of the water flowed towards De Liefde at that division point, with a larger portion flowing through to Kanonkop than previously, and concluded that this was contrary to the express terms of the 2014 order. It therefore found that the respondent had transgressed the 2014 order.

On the assault and threats, the court reasoned that, on common cause facts, the respondent admitted conduct amounting to assault, and that even on the respondent’s version any asserted provocation did not justify the extent of the admitted violence (including holding the applicant down and striking him). The court further interpreted the August 2020 WhatsApp message (“again time for a lesson in manners”) as a reference to the earlier assault and as a threat of repetition, supporting a conclusion that further assault was reasonably apprehended. It accepted that the absence of prosecution of the 2017 incident left the applicant without an adequate alternative remedy and justified final interdictory protection.

On costs, the court considered that costs should follow the result and criticised the respondent’s conduct as demonstrating disregard of existing court orders and repeated self-help. It regarded the applicants as having been compelled to return to court to vindicate rights already secured by previous orders, warranting censure through a punitive scale.

Outcome and Relief

The court ordered the respondent to comply forthwith with the 13 December 2016 order by closing the furrow, pipes, and manhole by which water was being diverted from the Watervalstroom or its sources to Kanonkop. It referred for oral evidence the question whether the small fountain used by the respondent from 2016 formed part of the Watervalstroom or came from a different source.

The court ordered the respondent to comply forthwith with the 25 June 2014 order by demolishing the stone deflection wall erected by him at the first division point and permitting the applicants to erect a stone deflection wall in its place. The respondent was called upon to give reasons why he should not be held in contempt of the 2014 order, and those contempt-related proceedings were referred to oral evidence on the opposed motion roll, with directions regarding exchange of witness statements where witnesses were to be called.

The court granted a final interdict restraining the respondent from assaulting or threatening to assault the fourth applicant, from interfering with the applicants’ inspection and maintenance of the Watervalstroom and Donkerkloofstroom sources, and from coming within 100 metres of the fourth applicant or his employees at any time.

The respondent was ordered to pay the applicants’ costs on the scale as between attorney and client.

Cases Cited

Stern & Ruskin NO v Appleson 1951 (3) SA 800 (W).

National Director of Public Prosecutors v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA).

Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).

Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions [2008] ZACC 13; 2008 (2) SACR 421 (CC).

Petersen v Cuthbert & Co Ltd 1945 AD 420.

Truth Verification Testing Centre CC v PSE Truth Detection Centre CC 1998 (2) SA 689 (W).

Rosen v Ekon [2000] 3 All SA 23 (W).

Ripoll-Dausa v Middleton NO [2005] ZAWCHC 6; [2005] 2 All SA 83 (C); 2005 (3) SA 141 (C).

President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC).

Legislation Cited

Government Notice 538 of 2016 (General Authorization).

Rules of Court Cited

No specific rule of court was expressly cited in the judgment, although the judgment referred generally to motion-proceeding principles and to referral of disputes to oral evidence.

Held

The court found that the respondent had acted in breach of the 2016 order by installing and utilising diversion works (including the 110 mm pipe) contrary to the order’s requirement to close the furrow and associated works used to divert water from the Watervalstroom or its sources to Kanonkop, and it ordered immediate compliance. However, because a material factual dispute existed as to whether the small fountain constituted part of the Watervalstroom system, the court referred that issue to oral evidence and did not grant contempt relief in respect of the 2016 order at that stage.

The court found that the respondent had transgressed the 2014 order by unilaterally demolishing and reconstructing the stone deflection wall at the first division point, in circumstances where the order conferred the right to erect the wall on the applicants. It ordered demolition of the respondent’s wall and restoration of the applicants’ right to erect the wall. It further initiated contempt-related proceedings concerning the 2014 order by calling upon the respondent to show cause and referring the contempt issue to oral evidence.

The court found on common cause material that the respondent had assaulted the relevant applicant in 2017 and that a further assault was reasonably apprehended in light of the respondent’s later threatening communication, warranting final interdictory relief restraining assault, threats, interference with inspection and maintenance, and proximity within 100 metres.

LEGAL PRINCIPLES

A party seeking a final interdict must establish a clear right, an injury committed or reasonably apprehended, and the absence of similar protection by another ordinary remedy. The judgment treated irreparable harm as not being a requirement for a final interdict, while recognising its relevance to interim relief, and it approached the applicants’ entitlement through the ordinary final-interdict framework.

In motion proceedings, final relief depends primarily on the resolution of legal issues on common-cause facts, and disputes of fact are governed by the Plascon-Evans principle: a final order may be granted only if the facts admitted by the respondent, together with the respondent’s version, justify the relief. The judgment applied the qualification that courts are not bound to accept versions that are bald, fictitious, palpably implausible, far-fetched, or untenable on the papers, while emphasising that courts should also not uncritically accept all asserted disputes at face value where they are not genuine.

Where there are real, material disputes of fact that cannot satisfactorily be resolved on affidavit, especially where expert opinion is diametrically opposed on a question central to the relief, the appropriate course is referral to oral evidence. The judgment applied this approach to the disputed hydrological and factual question of whether the small fountain formed part of the Watervalstroom system.

The judgment applied the principle that parties are expected to comply with existing court orders and should not resort to unilateral self-help in circumstances regulated by such orders. In determining contravention of the 2014 order, the judgment treated unilateral demolition and reconstruction by a party not authorised by the order as conduct inconsistent with compliance, regardless of asserted benign motive, particularly where the order allocated the right to erect the relevant structure to the opposing party.

Viljoen N.O and Others v Du Preez (13082/2020) [2021] ZAWCHC 235 (16 November 2021)