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[2016] ZASCA 177
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Rand Water Board v Big Cedar Trading 22 (Pty) Ltd (1038/15) [2016] ZASCA 177; [2017] 1 All SA 698 (SCA) (25 November 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1038/15
In the matter between:
RAND WATER
BOARD
APPELLANT
and
BIG CEDAR TRADING
22 (PTY) LTD
RESPONDENT
Neutral citation:
Rand Water Board v Big Cedar 22
(Pty) Ltd
(1038/15)
[2016] ZASCA 177
(25 November 2016)
Coram:
CACHALIA, SERITI, WALLIS and PILLAY JJA and
SCHIPPERS AJA
Heard
:
8 November 2016
Delivered
:
25 November 2016
Summary:
Statutory power to lay pipeline across
private land – s 24
(j)
of
Act 17 of 1950 – no servitude registered over land in respect
of pipeline – property sold to new owners – no
right to
claim removal of pipeline – court not empowered to order the
registration of servitude in respect of pipeline –
no claim for
compensation by new owner against water board.
ORDER
On appeal from:
Gauteng Division, Pretoria of High
Court (Tsoka J sitting as court of first instance):
(a)
The appeal is upheld with costs, such costs
to include those consequent upon the employment of two counsel.
(b)
The order of the court below is amended to
read:
‘
The
plaintiff’s claim is dismissed with costs.’
JUDGMENT
Wallis JA (Cachalia,
Seriti and Pillay JJA and Schippers AJA concurring)
Introduction
[1]
In 1971 or 1972 the appellant, the Rand
Water Board (Rand Water) laid the H16 underground pipeline over
various properties including
the remaining extent of Portion 1 of the
farm Klipfontein No 268JR. In 1997 it laid a further underground
pipeline, the H29 pipeline,
across the same property. The position of
the two pipelines on that property appears from a survey diagram
SG10602/1998 approved
by the Surveyor General. At the time the two
pipelines were laid
,
the property in question was owned by various members of one family,
the precise ownership having altered between the laying of
the first
and the laying of the second pipeline. After the second pipeline was
laid negotiations took place with that family with
a view to
registering a servitude over the property in respect of the
pipelines. Before those negotiations came to a satisfactory
fruition
the family sold the property to the respondent, Big Cedar Trading 22
(Pty) Ltd (Big Cedar). It became the registered owner
of the property
on 20 June 2003.
[2]
Although the pipelines were in existence at
the time Big Cedar acquired the property the evidence is that it was
unaware of them.
On 4 March 2004 attorneys acting for Rand Water
wrote to Big Cedar informing them of the existence of the pipelines
and suggesting
that a servitude be passed over the property in
accordance with Rand Water’s standard terms and conditions. All
endeavours
thereafter to register a servitude foundered on the
inability of the parties to agree on the amount of any compensation
payable
by Rand Water to Big Cedar.
[3]
On 28 October 2009 Big Cedar launched an
action against Rand Water advancing two claims. Counsel described the
first claim as a
vindicatory claim. Big Cedar’s contention was
that the pipelines were constructed, installed and were being used by
Rand
Water without the consent or permission of Big Cedar and without
any servitude or other limited right being registered and/or endorsed
in the deed of transfer of the property. The pleadings go on to
allege that Rand Water refused to remove the pipelines and thereby
prevented Big Cedar from having the unhindered enjoyment of its
property. On that basis an order was sought that Rand Water remove
the pipelines, alternatively that it register a servitude in respect
of that portion of the plaintiff’s property, or take
transfer
of that land against payment of the amount of R6.6 million.
[4]
The second claim was advanced on the basis
that the presence of the pipelines constituted an infringement of Big
Cedar’s fundamental
right to property. Rand Water was entitled
either to expropriate the relevant portion of the property or
expropriate a servitude
in respect thereof, against the payment of
compensation, but had failed to do so. Big Cedar accordingly alleged
that its rights
had been infringed, and continued to be infringed, as
a result of which Rand Water was unjustifiably enriched and benefited
at
its expense. On that basis it sought an order for payment of a
reasonable rental, alternatively compensation, in an amount of
R38 500
per month. In the further alternative it sought payment
of that amount by way of constitutional damages.
[5]
In the high court Tsoka J upheld the first
claim, on the alternative basis, but dismissed the second claim. He
ordered Rand Water
to register a servitude over the property at its
own expense on its usual terms and conditions and to pay Big Cedar
R32 804 000
as fair, just and equitable compensation for
the servitude. He also ordered that Rand Water pay the costs of the
action on the
scale as between attorney and client. The appeal is
with his leave. There is a cross-appeal by Big Cedar against his
refusal to
order the removal of the pipelines and his rejection of
the claim for constitutional damages.
Legal background
[6]
Rand Water was originally constituted under
the Rand Water Board Incorporation Ordinance, 32 of 1903 (Transvaal).
That statute was
from time to time amended by subsequent ordinances
and, from 1914, statutes of the national parliament. These were
consolidated
in the Rand Water Board Statutes (Private) Act 17 of
1950 (the Act). The powers of the Board were set out in s 24 of
the Act
and where relevant read as follows:
‘
In
addition to the powers vested in the Board by other sections of this
Act, the Board shall have the right to supply water within
the limits
of supply and for that purpose may, whether within or without the
limits of supply–
(g)
Purchase, lease or exchange
voluntarily any land or rights therein or in connection therewith;
(h)
Acquire by compulsory purchase any
land within the Republic or rights therein or in connection therewith
(other than water rights)
reasonably necessary for carrying out and
developing any of the undertakings transferred to the Board under the
Ordinance of 1904
and the rights to water secured to the Board by the
Vaal River Development Scheme Act, 1936 (Act 38 of 1934), and in the
amendment
thereof;
…
(j)
Lay or carry through, over, on or
across any land, public or private, and any public road, public place
or outspan, within the Republic,
and from time to time repair and
maintain any pipes for the supply of water with any necessary valves,
cocks, meters or other accessories
in connection with the same, and
enter upon any such land, road or place for such purpose as
aforesaid: Provided that–
(i)
At least seven clear days’ notice, except in the case of urgent
repairs,
shall be given to the authority under whose management or
control the said public land or road may be, or to the owner or
occupier
of any private land or road, before making any such entry as
aforesaid;
(ii)
On the completion of such works the Board shall forthwith restore the
surface of
such land, road or other place to the same condition as
near as may be as it was in before the commencement of such works,
and
in executing the same the Board shall do as little damage as may
be to such land, road or other place and shall make full compensation
for all damage done by it …
(iii)
All proper and necessary precautions shall be taken to prevent injury
to the persons or
property of all persons using or being upon such
land, road or place.’
[7]
Shortly after H29 had been laid on the
property, the Water Services Act 108 of 1977 repealed the Act with
effect from 31 December
1977. It contained provisions directed at the
transition of various water boards, including Rand Water, from the
former statutory
regime to the new regime under the Water Services
Act. They were to continue to exist and were deemed to be water
boards constituted
under the Water Services Act. The key provisions
were contained in s 84(4) and (6) of the latter Act reading as
follows:
‘
(4) All
existing rights and obligations of those water boards remain in force
after the commencement of this Act.
…
(6) Anything
done before the commencement of this Act by an organisation
contemplated in subsection (2) and any regulation
made or condition
set under or in terms of any law repealed by subsection (1) remains
valid and is deemed to have been done, made
or set under or in terms
of the corresponding provision of this Act if—
(a)
it is capable of being done, made or
set under or in terms of this Act; and
(b)
it is not in conflict with the main
objects of this Act as set out in section 2.’
[1]
[8]
The effect of s 84(6) is that, if
laying the two pipelines, H16 and H29 was lawful when that was done,
then it remained lawful
after the Water Services Act came into
operation, provided that this was something that could be done in
terms of the later Act.
There can be no doubt that Rand Water still
had the power to lay pipelines pursuant to its obligation to supply
water services
to water services institutions in terms of s 29
of the Water Services Act. While the procedures for exercising that
power
may now be different, and may require it to expropriate
servitutal rights over the affected property in terms of s 81 of
the
Water Services Act, that does not alter the fact that Rand Water
is entitled to do under the Water Services Act what it was entitled
to do in 1971 and 1997 under the Act. Section 84(6) serves to
preserve the validity of anything done under the repealed legislation
that ‘is capable of being done’ under the present
legislation. In this case what was done under the Act was that two
pipelines were laid and that is something that can unquestionably be
done under the current statute. The fact that the manner in
which it
must now be done has changed does not affect the position. Provided
Rand Water’s original actions were lawful their
validity is
preserved by s 84(6). That is reinforced by s 79(1) of the
Water Services Act, which protects its ownership
of the two
pipelines.
[9]
There was some debate over the impact of
s 84(4) and whether it preserved the right of Rand Water under
s 24
(j)
of the Act from time to time to repair and maintain the pipelines and
their appurtenances. It is unnecessary to resolve this because
Rand
Water has, in any event, the right to do that in terms of s 80(1)
(b)
of the Water Services Act
,
on reasonable notice to the owner of the land on which the pipelines
are situated.
[10]
Against that background the key issue is
whether Rand Water acted lawfully in laying the two pipelines in the
first place. As counsel
for Rand Water expressed the matter, once the
pipelines were lawfully upon the property
,
the owner at the time and all subsequent owners were obliged to
tolerate their presence on the property. Counsel for Big Cedar
very
fairly accepted this proposition saying that ‘if the pipes are
lawfully there, I must go home’.
Were the pipelines
lawfully laid?
[11]
Rand Water’s contention is that the
laying of the pipeline was lawful in terms of s 24
(j)
of the Act. There was no dispute that
this section empowered Rand Water to lay both pipelines. There could
hardly be any dispute
over that in the face of its wording, which
specifically said that Rand Water was entitled to ‘lay or carry
through, over,
on or across any land’ pipes for the supply of
water. Big Cedar’s attack on the lawfulness of Rand Water’s
conduct
in laying the pipes necessarily lay elsewhere.
[12]
The argument advanced on behalf of Big
Cedar flowed from the provision in s 24
(j)
(i)
that, before entering upon property for the purpose of laying a
pipeline, Rand Water was obliged to give the owner of the property
at
least seven clear days’ notice of its intentions. It submitted
that the evidence showed that no such notice had been given
and
therefore that the actions of Rand Water had from the outset been
unlawful. Accordingly, so the argument ran, Rand Water could
not rely
on s 24
(j)
to
justify its incursion into and laying of pipes on the property.
[13]
I am prepared to accept that the evidence
at the trial did not establish Rand Water’s compliance with
this requirement prior
to its laying each of the pipelines. However,
for the reasons that follow, one procedural and one substantive, I do
not think that
its assumed failure to comply with this requirement
rendered its actions in laying the pipelines unlawful and
unauthorised by s 24
(j)
.
[14]
The procedural reason is simply that
this case was not pleaded. The case Rand Water faced on the pleadings
was that it had placed
the pipelines on the property and used them
for its own purposes without the consent or permission of Big Cedar
and without any
servitude or other limited real right being
registered over the property. In the second claim it was said that
this infringed Big
Cedar’s rights to the exclusive use of its
property.
[15]
In its plea Rand Water responded to these
allegations by saying that:
‘
In
laying the aforementioned pipelines the First Defendant
[2]
exercised its pipe-laying powers in terms of section 24(j) of the
Rand Water Board Statutes (Private) Act 17 of 1950 … after
the
required notice had been given to the owners of the property at the
relevant times.’
Rand Water went on to
plead that it was therefore entitled to keep, repair and maintain the
pipelines and to enter upon Big Cedar’s
property for such
purposes. In response to the allegation that it lacked a servitude in
order to do this, Rand Water pleaded that
no such servitude was
required to enable it to exercise its rights and obligations in terms
of its primary objective. It dealt
with the repeal of the Act by
relying upon ss 84(2) and (4) of the Water Services Act.
[16]
There was no replication to this plea.
Counsel for Big Cedar contended that the effect of this was to place
in issue the allegation
that due notice had been given and that
nothing more was required of it. I do not agree. The plea was
directed at the allegation
that
,
in the absence of a registered servitude or other real right in
property
,
the presence of the pipelines on the property was without the consent
or permission of Big Cedar and interfered with its use and
enjoyment
of the property. The answer was simply that there was no need for a
registered servitude or similar real right because
the pipelines had
been laid in terms of Rand Water’s powers under s 24
(j)
of the Act. The allegation that notice
had been given to the owners added nothing to the validity of the
plea and amounted to a
plus petitio
.
That can readily be tested by asking whether the plea would have been
excipiable in the absence of such an allegation. The answer
is
clearly that it would not.
[17]
Uniform rule 25(2) says that no replication
is necessary which would be a mere joinder of issue or bare denial of
allegations in
the previous pleading. But if Big Cedar wished to
attack the plea, not by challenging the existence of the power
claimed by Rand
Water, but by contending that it had not in truth
purported to act in terms of that power in constructing the
pipelines, or by
challenging the validity of the exercise of that
power on the grounds of a failure to comply with the statutory
requisites for
its exercise, it needed to replicate and identify that
as an issue in the litigation. Such a case would not involve a bare
denial
or joinder of issue. Big Cedar did not replicate as it needed
to do. Had it done so then there can be little doubt that it would
have attracted a rejoinder from Rand Water, either that the then
owners had in fact had knowledge of the intention to lay the pipeline
and consented thereto; or that they had subsequently acquiesced in
its presence and thereby waived any right to object; or that
in terms
of the delay rule
[3]
any reasonable period for challenging the validity of the exercise of
the pipe-laying power by way of judicial review had passed
long
before Big Cedar became owner of the property. No doubt other
possibilities might have emerged. What is clear is that, by
not
raising this point as it should have by way of a replication, Big
Cedar failed to alert Rand Water to the issue and prevented
it from
responding properly to it.
[18]
The confusion in regard to this issue was
compounded by counsel for Big Cedar saying in his opening address to
the trial court that:
‘
We
emphasise firstly that this is not the issue whether the Rand Water
Board acted lawfully in 1971 and 1972, and again in 1997.
This case
is concerned with the question whether today, despite the advent of a
new Constitutional dispensation, and despite developments
in the
governing legislation, Rand Water currently enjoys an ongoing
statutory authorisation which justifies it to have these two
underground pipelines through the land of another person without a
servitude in respect of them.’
A more emphatic
disavowal of any intention to challenge the lawfulness of Rand
Water’s conduct in laying the pipelines would
be hard to find.
[19]
It is true that, shortly after this,
counsel went on to say that the first factual issue was whether the
Board acted lawfully in
1971 and 1997 when it laid these underground
pipelines and he said that it had not given the required notice prior
to its doing
so. He concluded by saying that on its own documents
Rand Water had never really acted in terms of s 24
(j)
but had acted ultra vires its provisions. This conclusion would, he
said, cause all the other legal issues to go away.
[20]
To quote Holmes J, in another context,
[4]
what is the court to do about this drollery? Big Cedar started by
telling the judge that the lawfulness of Rand Water’s conduct
in laying the pipelines was not in issue and in the next breath
contended that it acted
ultra vires
in doing so. The answer in my view lies in the purpose of pleadings,
which is to identify for the benefit of the court and the
parties the
issues in the case so that they may be fairly addressed and
considered. Courts are not slaves to the pleadings
[5]
but it is essential if parties are to have a fair hearing of their
dispute, something that the Constitution guarantees,
[6]
that the issues in the litigation are adequately defined and
canvassed, so that no prejudice is suffered by either party in
consequence
of any deficiencies in the pleadings.
[7]
The court will not be astute to hold that an issue falling outside
the pleadings has been so raised and investigated and parties
should
not be encouraged to rely on the court’s readiness at the stage
of argument or on appeal to treat unpleaded issues
as having been
raised and fully investigated.
[8]
[21]
The point here under discussion ought to
have been pleaded and it was not. The vacillating way in which it was
addressed at the
trial, bearing in mind that no oral evidence was led
on the point and no cross-examination was addressed to it, makes it
clear
that it was not fully investigated or canvassed. Therefore it
was not open to Big Cedar to rely upon it in the appeal.
[22]
The substantive reason for holding that
this argument does not avail Big Cedar is that, on a proper
interpretation of s 24
(j)
(i),
a failure to comply with the notice provision does not render the
laying of the pipeline unlawful. There is nothing in the
section
itself to say that a failure to give the required notice will render
invalid all actions thereafter undertaken in terms
of the powers
granted by the section. The question is one of interpretation to
determine whether non-compliance with the statutory
injunction is to
be visited with nullity.
[9]
[23]
The clear purpose of the requirement that
notice be given to the owner of a property before entering upon the
property and undertaking
work, is to enable the owner to engage with
Rand Water over the impact that the work of laying the pipeline will
have upon the
owner’s activities. It also affords the owner an
opportunity to make arrangements to ensure that its own activities
are disturbed
as little as possible by the proposed work upon its
property. But the period of notice is short, so that planning for any
extensive
work, such as the laying of the two pipelines in this case,
and the decision to undertake that work, would have occurred and been
finalised long before the notification to the owner. That means that
the notice’s purpose was not to enable the owner to
dissuade
Rand Water from laying the pipeline, or in any significant degree to
cause it to alter its plans. It was rather to ensure
that when
workmen come on site to undertake the laying of the pipeline
inconvenience to the owner would be minimised and the owner
would be
given an opportunity to, for example, move stock or goods away from
the working area and take other steps to protect its
own property.
There is nothing in this to suggest that a failure to give notice to
the owner invalidates the act of laying the
pipeline.
[24]
It follows that Rand Water acted lawfully
in installing the two pipelines. Further consideration of the appeal
must therefore proceed
on that basis. I can however be brief as
counsel for Big Cedar conceded that his case had to stand or fall by
the lawfulness of
Rand Water’s conduct in laying the pipelines
in the first place. He accepted that if that was lawful it was a
necessary implication
of the entitlement to lay the pipelines that
there was also a right for them to remain in place or, as Mr du
Plessis SC for Rand
Water put it, an obligation on the original owner
and all subsequent owners to tolerate their presence. That conclusion
is supported
by the judgment of Bisset CJ in
Fison
,
[10]
a case resembling this one, where the owner of property sought the
removal of a water pipeline constructed by the municipality
under
statutory powers similar to those in issue here. It is also supported
by the description of similar powers by this court
in
SMI
Trading
[11]
where it was said that:
‘
Coercive
powers to enter land, and even to deprive owners of the use of land,
for public purposes is a typical governmental power
that is provided
for in democracies such as ours precisely in order to further the
public interest.’
[25]
The conclusion that Rand Water acted
lawfully put paid to the claim for removal of the pipelines and also
disposed of the cross-appeal.
I need only note therefore that I am by
no means satisfied that counsel was correct in describing the basis
for the claim for removal
of the pipes as a
rei
vindicatio,
or vindicatory action. A
vindicatory action is the means whereby the owner of property
recovers possession of that property from
a third party.
[12]
Rand Water was not in possession of Big Cedar’s property so
that the
rei vindicatio
was
not the appropriate means for asserting its claim. In a situation
such as this it seems to me that the appropriate remedy is
likely to
be similar to the remedy available to an owner of property where
there is an encroachment upon that property.
[13]
Alternatively the owner would have a claim for damages under the
Aquilian action as described by this court in
Hefer
v Van Greuning.
[14]
But I need say no more as the issue is academic.
A servitude
[26]
Apart from the claim for removal of the
pipelines Big Cedar sought, in the alternative, an order that a
servitude be registered
over the property in respect of the two
pipelines and that Rand Water pay it R6.6 million as compensation
therefor. As mentioned
the court below made an order for the
registration of a servitude and in addition ordered that compensation
of R32 804 000
be paid therefor.
[27]
Mr du Plessis, who appeared for Rand Water
in the appeal but not at the trial, submitted that both these orders
were unsustainable.
As to the servitude he contended that a court may
not order registration of a servitude, because personal servitudes
are created
by agreement, legislation or expropriation. For a court
to order the registration of a servitude over property, which would
necessarily
extend to determining the extent of the servitude and the
conditions attaching thereto, amounts to making a contract for the
parties
that they have not made for themselves.
[28]
This argument strikes me as compelling and
the problems attendant upon an order such as that granted by the
trial court are well
illustrated by the facts of the present case.
For example the judge appears to have assumed that the servitutal
area would be 3,2804
hectares as reflected on the survey diagram
annexed to the particulars of claim. But that diagram had been
prepared in 1998 when
negotiations were taking place between Rand
Water and the family that then owned the property. He ignored the
fact that Big Cedar
itself had proposed a servitude covering a
somewhat smaller area and that there had been no agreement on the
terms and conditions
of the servitude. Why then should they be Rand
Water’s usual conditions, assuming there to be such? On this
point the matter
was not canvassed in evidence and the draft
conditions of servitude in the record reveal that there were some
clauses special to
this particular property. It is unnecessary to
decide whether there are any circumstances in which a court may order
the registration
of a servitude and, if so, on what terms, but no
foundation was laid for such an order in this case.
[29]
Counsel for Rand Water rightly pointed out
that the exercise of powers in terms of s 24
(j)
is a very different matter from
exercising rights in terms of a registered servitude. The reason is
that there is an element of
indeterminacy arising from the exercise
of a power to enter property and lay a pipeline that is largely
absent from a registered
servitude. In the former case there is scope
for dispute as to the extent to which the property owner may
undertake works in the
immediate vicinity of the pipeline. How close
to the pipeline may the owner build a building or install other
services, such as
electricity cables or sewage pipes? May the
owner allow vehicles to cross the pipeline or mine under the
pipeline? May the
surface be used for agricultural purposes and, if
so, what constraints are to apply? Once a servitude has been
registered its terms
will ordinarily dispose of these questions. All
of these issues were dealt with in a draft deed of servitude that was
part of the
record. And that provided the explanation for Rand
Water’s willingness to offer some compensation to Big Cedar in
return
for its agreement to the registration of a servitude in this
case. The compensation was payable in return for securing certainty
in regard to the respective rights of the parties.
[30]
Recognition of the distinction between the
outcome of the exercise of the statutory power and the registration
of a servitude explains
why the allegation that Rand Water was acting
without a registered servitude or a real right to construct the
pipeline was misconceived.
Accepting, as counsel for Rand Water was
prepared to do, that Rand Water was entitled to exercise a power of
expropriation in order
to secure servitutal rights in relation to the
pipeline, there was nothing in the Act that required it to do so
before constructing
the pipeline. Its statutory right was different
from any right that it would acquire from a registered servitude.
[31]
The fact that the exercise of the statutory
power did not constitute a servitude meant that the rule that an
unregistered servitude
does not bind a subsequent purchaser without
knowledge
[15]
had no application. It is also the answer to the contentions based on
the unreported judgment in
Rotek
Industries v Rand Water Board
.
[16]
There are curious features of that judgment. In para 38 the judge
correctly held that the powers granted to Rand Water in terms
of
s 24
(j)
could
be exercised without any obligation, either in conjunction with the
exercise of that power or after it had been exercised,
to expropriate
a servitude. Her conclusion was that there could be no doubt about
the Legislature’s intentions in that regard.
But then she went
on to say that whilst this was clear as against the owner of the
property at the time the pipe was laid ‘it
is not so clear in
relation to successors-in-title’.
[32]
The substance of the court’s
reasoning appears from the following passage in para 42 of the
judgment:
In
determining the intention of the Legislature in regard to whether the
first defendant’s rights are enforceable against
successors-in-title, there is no doubt in my mind that the
Legislature generously endowed the first defendant with section 24
(j)
powers in order to
enable it to perform its functions in the most cost-effective way
possible. Furthermore the fact that it is a
public body, the
intention was to ensure that it would not be fettered with
obligations which could become costly and burdensome.
However, it
could equally not have been the intention of the legislature that
this would be at the expense of the innocent successor-in-title
who
unwittingly purchases land not knowing that the value is diminished,
that his ability to use it effectively may be fettered
with the
informal servitude and which potentially represents a dangerous
situation as he is unaware of the pipes and where it may
be located.
In balancing the rights of the first defendant and that of the
successor-in-title, I cannot find that these section
24
(j)
powers are
enforceable against successors-in-title. In effect the taking of th
land without compensation, while permissible in certain
instances,
cannot be said to be justified in the present circumstances.’
[33]
The logic of this analysis escapes me. I
fail to see why the legislature would have been content to allow Rand
Water to enter private
property and lay pipelines without any
obligation to obtain a servitude or pay compensation to the owner,
but would have shown
such tender solicitude to successors-in-title
who may only have come on the scene many years later. Take the
present case. Rand
Water laid H16 in 1971 and 1972. The pipeline was
in place for 42 years before Big Cedar acquired the property. On the
judge’s
analysis the family who owned it originally would have
had to tolerate its presence for all of those 42 years with no right
to
compensation, but Big Cedar would have been entitled to
compensation as soon as it acquired the property. That is an absurd
construction
of the statute and in my view it was clearly incorrect.
Accordingly the judgment in
Rotek
Industries (Pty) Ltd v Rand Water Board
is overruled.
Compensation
[34]
Counsel for Big Cedar did not press any
argument in favour of the pleaded claim for constitutional damages.
That was wise. Such
a claim would need to rest on the provisions of
s 25 of the Constitution guaranteeing the right to property. Its
operation
is triggered either by an expropriation or by a deprivation
of property. Those could only have occurred when the pipelines were
constructed. In the case of H16 that was prior to the Constitution
coming into force so that could not give rise to a constitutionally
based claim. In the case of H29 any deprivation of property occurred
before Big Cedar became owner of the property.
[35]
That fact is important because counsel was
unable to give any answer to the question of what would happen to Big
Cedar’s claim
if the previous owners had received compensation
from Rand Water when the two pipelines were constructed. It seems
inconceivable
that so long as no servitude was registered each
successive owner would have a claim for compensation. The question
illustrates
that if there had been any deprivation of property it
occurred prior to Big Cedar becoming owner of the property. It also
illustrated
the fact that if Big Cedar had any claim arising from its
ignorance of the presence of the pipelines that claim would have lain
against the previous owners rather than Rand Water.
[17]
[36]
It needs to be noted that Big Cedar did not
seek to support the trial court’s order insofar as compensation
was concerned.
Mr du Plessis SC was correct when he said at the
outset that it was insupportable on any basis. The judge took the
area of the
servitude as proposed in 1998 and multiplied it by R1 000
a square metre on the basis that this was what Rand Water paid for
a
servitude over another property in the same general area. There was
no evidence that the two properties were comparable and the
person
who prepared the valuation on which that figure had been based did
not give evidence.
[18]
Big Cedar’s own valuer said in evidence that he could not
support this figure on any basis. The award was plainly untenable
and
had the appeal failed we would have had to enter upon an extremely
complex enquiry in regard to the assessment of compensation.
Costs
[37]
The trial court awarded attorney and client
costs against Rand Water. That order will obviously be overturned in
the light of the
outcome of the appeal. But it is appropriate to say
that the strictures expressed by the trial judge in regard to Rand
Water’s
conduct, and his finding that its reliance on s 24
(j)
of the Act ‘was far from the
truth’, because it knew that there was no formal servitude over
the property, was entirely
unjustified. So was his attack on Rand
Water’s bona fides. Such findings are never to be made lightly
and they should not
have been made in this case.
Result
[38]
The appeal must succeed and the following
order is made:
(a)
The appeal is upheld with costs, such costs
to include those consequent upon the employment of two counsel.
(b)
The order of the court below is amended to
read:
‘
The
plaintiff’s claim is dismissed with costs.’
M J D WALLIS
JUDGE OF
APPEAL
Appearances
For appellant:
S J du Plessis SC (with him I M Lindeque)
Instructed by:
Breytenbach Mostert Skosana Inc, Pretoria
Hill McHardy & Herbst,
Bloemfontein.
For respondent:
M M Oosthuizen SC (with him J Rust)
Instructed by:
Rorich Wolmarans & Luderitz, Pretoria
Symington & De Kok, Bloemfontein.
[1]
There are clear similarities between these provisions and those
contained in s 12 of the Interpretation Act 33 of 1957,
but as
these are special provisions they would ordinarily exclude the
operation of the general provisions in accordance with
the maxim
generalibus non specialibus derogant
.
[2]
The Minister of Water Affairs and Forestry was cited as a nominal
second defendant but played no part in the litigation.
[3]
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 39C-D;
Setsokosane Busdiens (Edms) Bpk
v Voorsitter, Nasionale Vervoerkommissie en ń Ander
1986
(2) SA 57
(A) at 86D-E;
Oudekraal Estates (Pty) Ltd v City of
Cape Town
[2009] ZASCA 85
;
2010 (1) SA 333
(SCA) paras 33 and
50-51.
[4]
Dreyer v Naidoo
1958 (2) SA 628
(N) at 629A, the case of the
ambidextrous sheriff.
[5]
Robinson v Randfontein Estates GM Co Ltd
1925 AD 173
at 198.
[6]
Section 34 of the Constitution guarantees a fair public hearing of
justiciable issues before a court or other independent and
impartial
tribunal or forum.
[7]
An informal expansion of the issues is most likely to arise through
the parties canvassing fully and without objection an issue
falling
outside the pleadings.
Shill v Milner
1937 AD 101
at 105.
[8]
Middleton v Carr
1949 (2) SA 374
(A) at 385-386.
[9]
Standard Bank v Estate van Rhyn
1925 AD 266
at 274;
Sutter
v Scheepers
1932 AD 165
;
Swart v Smuts
1971 (1) SA 819
(A) at 829C-830C.
[10]
Fison Albatros Fertilisers (Rhodesia) Ltd v Salisbury
Municipality
1931 SR 61.
[11]
Mobile Telephone Networks (Pty) Ltd v SMI
Trading CC
2012 (6) SA 638
(SCA) para
34.
[12]
Chetty v Naidoo
1974 (3) SA 13
(A) at 20A-D;
Hefer v Van
Greuning
1979 (4) SA 952
(A)(
Hefer
) at 959G-H.
[13]
Rand Waterraad v Bothma en ń Ander
1997 (3) SA 120
(O)
at 130F-132H;
Trustees, Brian Lackey Trust v Annandale
2004
(3) SA 281 (C).
[14]
Hefer
supra
fn 16
[15]
Grant v Stonestreet
1968
(4) SA 1
(A); and
Bowring NO v
Vrededorp Properties CC and another
2007
(5) SA 391
(SCA) paras 7 and 8.
[16]
Rotek Industries (Pty) Ltd v Rand Water Board and Another
Case
No 99/26709, WLD (unreported).
[17]
Glaston House (Pty) Ltd v INAG (Pty) Ltd
1977
(2) SA 846
(A). See also
Dibley v
Furter
1951 (4) SA 73 (C).
[18]
The judge erroneously said that this value was in accordance with
Rand Water’s own expert evidence.