Gerber and Another v Gerber and Others (907/09) [2009] ZAECPEHC 32 (9 July 2009)

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[2009] ZAECPEHC 32
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Gerber and Another v Gerber and Others (907/09) [2009] ZAECPEHC 32 (9 July 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Frans Anthonie Gerber & 1 Other vs FF Gerber & 3 Others
Case
Number: 907/09
High
Court: Eastern Cape – Port Elizabeth
Date
Heard: 25 May 2009
Date
Delivered: 09 July 2009
JUDGE(S):
REVELAS J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Applicant(s): Adv J Huisamen
for
the Respondent(s): Adv P Jooste
Instructing
attorneys:
Applicant(s):
Goldberg & De Villiers obo Johan Sloet & Burger
Respondent(s):
Messrs Nel Mentz Inc c/o Jaqquess Du Preez
CASE
INFORMATION – Motion Court
Nature
of proceedings
:
Key
Words
:
Not
reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE - PORT ELIZABETH
Case No: 907/09
Date Heard: 29/05/09
Date Delivered: 9/07/09
In the matter between
FRANS ANTHONIE GERBER
First
Applicant
LOUISA PETRONELLA GERBER
Second
Applicant
and
FF (FRANS) GERBER
First
Respondent
SJ (FANIE) GERBER
Second
Respondent
JDW (DANIE) GERBER
Third
Respondent
OJO (OLIVIER) GERBER
Fourth
Respondent
J U D G M E N T
Revelas, J
[1] The two applicants who are
married to each other are farmers in the Joubertina district. On 9
March 2009 they approached the
Eastern Circuit Local Division sitting
in George on an urgent basis, seeking relief which is in the nature
of a
mandament van
spolie
.
The four respondents are also farmers and own farms which are
situated (as is the applicants’ farm) on the Braam River (
the
river
), but only higher
up. The applicants allege that the respondents unlawfully interfered
with their statutory water rights and the
water supply from the river
to their farm. The relief sought is to the effect that the
respondents be ordered to remove two weirs
and certain pipes
installed in the river, opposite the fourth respondent’s farm
within 24 hours and to restore the riverbed and
its course (through
repairs thereto) to the position it was in, immediately prior to the
installation of the
obstructions (weirs and pipes). In addition, the applicants seek an
order in terms whereof the respondents
are interdicted from building
or placing any obstructions in the river which would result in
interrupting its flow and preventing
the supply of water to the
applicants’ farm, unless the respondents obtain the necessary
authority in terms of the National Water
Act, 36 of 1998 (
the
Act
) first.
[2] On 27 March 2009, this case was
transferred to this court by order of the Eastern Circuit Local
Division in terms of section
3(1) of the Interim Rationalisation of
Jurisdiction of the High Courts Act 41 of 2001, after the respondents
objected to the jurisdiction
of Eastern Circuit Local Division in
George. By the time the matter was set down at the end of May, it
had lost its sense of acute
urgency, although it does remain a
somewhat urgent matter, particularly because of the heavy drought in
the area. Hopefully recent
rains have alleviated the situation.
[3] Because the applicants’ farm
(Twannie) is registered in the name of the second applicant (Mrs
Gerber), the relevant water
use certificate issued in terms of the
Act, in respect of the utilisation of water from the river, is
registered in her name.
In this regard the applicants have attached
a six page document issued by the Department of Water Affairs and
Forestry Water Use
Licensing and Registration (the Department), on 8
September 2005, which permits water to be taken from the river for
use on Twannie.
[4] It is not in dispute that the
applicants, their farming operation and their workforce and families
use the water obtained and
stored from the river. The applicants
farm mainly with ostriches which include the raising of ostrich
chickens. These animals
are by nature
notoriously
prone to contracting diseases and must consequently be watered with
potable water, according to the first applicant.
[5] It is common cause that the
river is not a perennial river and that when this application was
launched, the Joubertina district,
where the farms concerned are
situated, had been stricken with a terrible drought for some time and
the water supply from the
river became very limited. It is not in
dispute that certain measures were taken by the respondents to change
the water course
in the river. Several sandbags were placed in the
riverbed and at another point a hundred metres away, a stone and
concrete construction
was erected. The applicants describe the
constructions as weirs (“keerwalle”). The riverbed is excavated
infront of the first
weir to ensure water damming up there. The
second weir is equipped with a grid-like sieve to capture and lead
any spare water
into the underground pipes, which lead water to the
various farms of the four respondents. These pipes were also newly
installed.
The two weirs and the pipes were installed on the fourth
respondents’ farm, which is the one above Twannie (the applicants’

farm).
[6] The applicants contend that as a
result of the installation of the pipes and the construction of the
weirs, no water reaches
the part of the river adjacent to the
applicants’ farm. Their employees and their ostriches also suffer
from the cessation of
the water which previously seeped or trickled
down the river and to which the applicants were entitled to in terms
of the Water
Use Certificate issued to Mrs Gerber. The applicants
maintain that the installation of the weirs and water pipes is
unlawful,
fall foul of the provisions of the Act and has infringed
their peaceful and undisturbed exercise of their lawful right to take
water from the river. They also contend that their constitutional
right to potable water has been violated.
[7] Even though the third respondent
disputes that the two constructions are weirs, the stone structure is
admittedly constructed
with stone and concrete and there are at least
four sandbags placed in the riverbed which form part of the “sisteem”
(term
used by the third respondent) to alter the existing flow of the
water. I will refer to both these structures as “weirs” in
this
judgment because of the nexus between their construction and the
termination of the flow of water to Twannie.
[8] The applicant attached a
handwritten letter sent to him by the fourth respondent to the
founding affidavit. It appears from
the letter that the applicant
had asked him about a water distribution agreement pertaining to the
farms upstream. The original
agreement, according to the letter,
could not be retrieved but an unsigned copy was found. The agreement
must have been attached
to this letter because the fourth respondent
says with reference to him finding the agreement:
“
Soos jy kan
sien
moet ons (Braamrivier) se water elke naweek vry loop in die rivier
vir 24 uur. Onderplaas s’n vir 15 uur en so gaan dit verder
af”.
(Emphasis added)
The fourth respondent intimated to
the first applicant in this letter his view that he (the first
applicant) is entitled to take
water from the river on Saturdays at
six o’clock in the afternoon. When the matter was argued before me
no such concession was
made on behalf of any of the respondents.
[9] The respondents deny that their
actions are unlawful. They argue that the applicants are unable to
show a clear right to the
water, and that their reliance on the
mandement van spolie
is misplaced because the installation of the obstructions in the
river was lawful.
[10] The third respondent contended
that early in 2009, the state of the then existing cement furrows
necessitated an alternative
method of taking water from the river.
According to the third respondent, the matter was taken up
telephonically with the Department
resulting in a Mr Jakobs (of the
Department) inspecting the location where the respondents intended to
install the new pipes (in
lieu of the cement ducts or furrows) in the
riverbed, the route these pipes would follow, and their final
destination point, namely
the dams.
[11] The third respondent states
that the point in the river from where the water is taken (aftappunt)
is more or less in the same
vicinity as the previous point, the only
difference being that the new pipes follow a shorter and alternative
route, as opposed
to the previous cement furrows which were longer
and had many kinks and curves. The third respondent says he also
pointed out to
Mr Jakobs that the pipes would pass through the
riverbed at two points, thus using two pipes instead of one. The
former method
of taking the water to the dams ensured a relatively
constant trickle and seepage which the applicants appropriated for
their use.
The new arrangement would terminate that.
[12] On 10 February 2009, the
Department, in response to an application by the respondents, granted
the necessary authorisation
to “change the method of taking water
from the Braam River by means of 200 mm PVC pipes which will be laid
in the
existing
furrow” (emphasis added), but subject to the following conditions:
(a) The method of taking water may
not contravene any water uses as stipulated in
section 21
of the
National Water Act. (The
applicants’ use of water falls within
that section).
(b) The respondents’ “proposed
activity” may not have a negative effect on “any water user
downstream” or his property.
(c) No “riparian vegetation” or
trees may be removed in the process without consulting the
Department.
[13] The letter addressed to the
fourth respondent, but sent to the third respondent, and which
contains the authorisation, warns
that non-compliance with the above
conditions will render the “proposed activity” unlawful. The
letter also advises that application
will have to be made (presumably
by the fourth respondent because the pipes were to be installed on
his farm) for a water use licence
in terms of the Act, but states
that “the issuing of such licence cannot be guaranteed”. It is
of significance in this matter
that the applicants bought Twannie
from the fourth respondent, who seems to agree that the owner of that
farm is entitled to take
water from the river as of right. The
pipes, stone weir and sandbags complained of, were installed on the
fourth respondents’
farm and the authorisation from the Department
with regard to the installation of the new pipes, is addressed to the
fourth respondent.
The latter did not provide a water licence or a
registration certificate for the use of the water.
[14] There are two points (800
metres apart) in the riverbed from where the applicants take water.
The first point is a stone weir
and the second is a well. At the
time the application was brought, the well contained water, despite
the heavy drought which reigned
in the Langkloof. According to the
respondents, that well is never without water. The applicants
alleged that the well does not
contain potable water fit for human or
ostrich consumption, and as can be gleaned from the founding
affidavit, the lack of potable
water is what brought the applicants
to court. The respondents argue that the water used by the
applicants emanates from springs
along the riverbed and not from the
river itself.
[15] Sandbags were installed in the
river by the respondents. This method is not covered by the
departmental authorisation. Neither
is the stone weir. Furthermore
it was the express wish of the Department that the installation pipes
should not cut the downstream
farms (like Twannie) completely off
from water. Such a situation is also prohibited by section 22(2)(e)
of the Act. The pipes
were also not installed in “existing
furrows” as required.
[16] Section 22(2)(e) of the Act
provides that a person who uses water without a licence but with
general authorisation issued under
section 39 of the Act, (as the
respondents are doing on the fourth respondent’s farm), “must
return any seepage, run-off or
water containing waste emanating from
that use, to the water resource from which the water was taken,
unless the responsible authority
or relevant authorisation directs
otherwise”. In this case the letter of authority (10 February
2009) does not dictate or direct
otherwise. Its provisions (set out
above) echo the provisions of this section.
[17] The respondents have failed to
discharge the onus of proving that they have acted in accordance with
their statutory or any
other authority. It is also noteworthy that
the registration certificates on which the first, second and third
respondents rely
(the fourth respondent did not produce one) are
subject to the issue of valid water licences.
[18] The respondents also argued
that the applicants need not have approached the High Court for the
relief sought but should rather
have approached the Department which
has emergency measures and other methods in place to resolve water
use disputes such as the
one under consideration. In other words,
the respondents contend that the applicants have an alternative
remedy. The fact that
the conditions set in the authorisation letter
from the Department, were not
complied with is very, significant. There is no reason why the
applicants should approach the Department
when the respondents are in
breach of the conditions imposed by the Department. The problem is
of the respondents’ making.
It was also argued that the
applicants’ problems were caused by the drought which they must
bear like everyone else in the area.
[19] The respondents further argued
that the water dispute in question is not capable of being determined
on the papers because
of the many disputes of fact in the various
affidavits. There are common cause facts and facts in the answering
affidavit which
are sufficient to determine this case. It is not
open to the respondents to deny that the actions of the respondents
resulted
in the applicants’ water being cut off. Clearly, the
applicants’ access to water has been impaired and their rights to
water
were infringed by the actions of the respondents.
[20] The next question to determine
is the nature of the relief to be granted and whether this is a
matter in which the
mandement
van spolie
is of
application. The latter remedy restores to another,
ante
omnia,
moveable,
immovable and incorporeal property, forcibly or wrongfully
dispossessed and against his consent. It can also restore
quasi-possessio
of
certain rights which “consists in the actual exercise of an alleged
right or as formulated in
Zulu
v Minister of Works Kwazulu, and Others
1992 (1) SA 181
(D) at 188 C
in “die daadwerklike
uitoefening van handelinge wat in die uitoefening van sodanige reg
uitgeoefen mag word”. (See:
First
Rand Ltd t/a Rand Merchant v Scholtz NO
2008 (2) SA 503
at 509 para
[12]; Nino Bonino v De Lange
1906 TS
120
and 122; Bon Quelle (Edms) Beperk v Munisipaliteit van Otavi
1989 (1)
SA 508
(A)
)
.
[21] In the
Bon
Quelle
case
,
it was held that the undisturbed exercise of a right to the use of
water fell within the concept of
quasi
possessio.
In
Impala
Water Users Association v Lourens NO and Others
2008 (2) SA 495
,
Farlam JA
had the following to say
about the
Bon Quelle
judgment at 500J – 501 [20]:
“
In my view,
unless the Bon Quelle decision is to be overturned, the respondents
have clearly established that the rights to water
– were capable of
protection by the mandement van spolie.
[20] The decision of
this court in Bon Quelle was carefully reasoned in a scholarly
judgment in which the previous case law and
many, if not all, of the
relevant authorities were canvassed. No new light on the matter was
thrown by the argument of counsel
for the appellant and I am
satisfied that it cannot be held that the decision in question was
clearly wrong”.
Accordingly the applicants’ water
rights can be protected by the
mandement.
[22] The next question is whether
the spoliation was lawful. As shown above, the pipe installations
were not in accordance with
the conditions of the authorisation set
by the Department and the installation of the sandbags and stone weir
were not included
in the authorisation. In addition, all the new
installations in question were in breach of section 21 and section 22
of the Act.
Consequently the applicants’ rights to water in terms
of the Act are worthy of the protection of the
mandement.
[23] Because the two weirs were not
methods to take water covered by the departmental authorisation, they
should be removed. Similarly,
because the pipes were not placed in
existing furrows as required by the Department either, they should
also be removed. Removal
of these pipes will have the result that
the water running to the dams of some of the respondents will be cut
off. However, this
inconvenient situation will be of short duration
if
the respondents comply
with the conditions of the authorisation and the Act, by causing the
water pipes to run in the existing furrows.
The third respondent
contends that the letter of the Department does not convey what was
intended by the parties. No explanatory
affidavit by the official
concerned was attached to the answering affidavit in support of that
contention. Moreover, it appears
that the applicants were not
consulted by the Department concerning the effect of the new water
use system on their water supply.
It is almost inconceivable that
the Department would have regarded the respondents new water use
system as being in accordance
with the conditions of the
authorisation and provisions of the Act.
[24] Even though the drought is the
largest contributing factor to the lack of water on the applicants’
farm, the drastic changes
made to the flow of water in the river will
have a lasting and detrimental effect on the applicants’ access to
water. None of
the respondents possess a licence or authority to
effect such changes. Accordingly the applicants are entitled to the
relief they
seek and the following order is made:
The respondents are ordered to,
within fourteen days of this judgment, remove the pipes and
obstructions (sandbags, stone weir
and sieve) mentioned in paragraph
5 of this judgment, and to restore the riverbed and its water course
(through repairs thereto
and utilizing the previous, existing water
furrows) to the way they were, prior to the installation and
construction of the abovementioned
pipes and obstructions.
If the respondents fail to comply
with paragraph 1 of this order, the Sherriff or his Deputy shall
remove the obstructions and
the pipes, to restore the riverbed and
its course to their original position and the respondents will be
jointly and severally liable
for the costs of such removal and/ or repairs.
The period of 14 (fourteen) days
referred to in paragraph 1 of this order, may be extended by
agreement between the parties, or
with the permission of the
applicants within their sole discretion, which permission may not be
unreasonably withheld.
The respondents are interdicted
from constructing or installing any obstructions in the river which
will result in terminating
or altering the water flow in the Braam
River to the applicants’ farm, without obtaining the proper and
specific authorisation
to do so, from the Department of Water
Affairs and Forestry.
A copy of this judgment is to be
served on the Department of Water Affairs and Forestry – Eastern
Cape (Ms L Fourie), East London,
within 5 days of this order.
The respondents are to pay the
costs of this application jointly and severally, the one paying the
other to be absolved.
______________
E REVELAS
Judge of the High Court