Mostert and Another v S (338/09) [2009] ZASCA 171; 2010 (2) SA 586 (SCA) ; 2010 (1) SACR 223 (SCA) ; [2010] 2 All SA 482 (SCA) (1 December 2009)

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Mostert and Another v S (338/09) [2009] ZASCA 171; 2010 (2) SA 586 (SCA) ; 2010 (1) SACR 223 (SCA) ; [2010] 2 All SA 482 (SCA) (1 December 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 338/09
In the
matter between:
JACOBUS PETRUS CHRISTIAAN MOSTERT SNR 1
st
APPELLANT
JACOBUS
PETRUS CHRISTIAAN MOSTERT JNR 2
nd
APPELLANT
V
THE
STATE
RESPONDENT
Neutral citation:
Mostert v The State
(338/2009)
[2009]
ZASCA 171
(
1 December 2009).
Coram: Navsa, Mthiyane, Heher JJA, Leach et
Griesel AJJA
Heard: 4 November 2009
Delivered: 1 December 2009
Summary: Unauthorized abstraction of water from a river –
whether state limited to prosecution of statutory offences and common

law prosecutions are excluded – effect of
s 98
of the
National
Water Act of 1998
.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court (Basson J and Smith
AJ sitting as court of appeal).
The following order is made:
1. The appeal against the appellants’ convictions on counts 3 and 4
is dismissed.
2. The appeal against the sentence imposed in respect of counts 3 and
4 is upheld and the sentence altered as set out below.
3. The respondent’s cross-appeal in regard to count 1 (fraud) is
upheld and the high court’s order upholding the appellants’

appeal against their conviction on that count is set aside.
4. The respondent’s cross-appeal in regard to count 2 (theft) is
dismissed.
5. The order of the high court is altered to read as follows:
‘(a) The appeal in respect of the first appellant’s conviction on
counts 2, 5, 6 and 7 and the second appellant’s conviction
on
counts 2, 5 and 6 is upheld and such convictions and the sentences
imposed in respect thereof are set aside.
(b) The appeal in respect of the appellants’ convictions on counts
1, 3 and 4 is dismissed.
(c) In respect of their conviction on count 1 (fraud) each appellant
is sentenced to a fine of R20 000 or 12 months’ imprisonment,

wholly suspended for four years on condition he is not convicted of
fraud committed during the period of suspension and for which
he is
sentenced to imprisonment without the option of a fine.
(d) The appeal against the sentence imposed in respect of counts 3
and 4 is upheld, the sentence is set aside and (both counts
being
taken together for purposes of sentence) replaced in the case of each
appellant with a fine of R5 000 or six months’ imprisonment.’
______________________________________________________________
JUDGMENT
LEACH AJA
(NAVSA, MTHIYANE, HEHER JJA et GRIESEL AJA
concurring)
[1]
The two appellants,
who are father and son, grow sugarcane in a joint enterprise on the
farm ‘Dadelvlak’
1
in the district of Barberton. The farm is riparian to the Lomati
River from which the appellants abstract water to irrigate their

lands. It also falls within the Lomati Irrigation District which was
established on 31 October 1969 under the provisions of s 71(1)
of the
Water Act 54 of 1956 (‘the 1956 Act’) and in respect of which the
Lomati Irrigation Board (
‘the complainant’)
was
simultaneously created under s 79(1) of that Act.
2
[2] The functions of the complainant included the
exercise of control over the water in the Lomati River within its
area of control
and the regulation of the amount of water abstracted
by farmers within its irrigation district. In order to monitor the
quantity
of water being abstracted, the complainant required the
farmers to register their pump stations and to have them fitted with
a
water flow monitoring system known as a ‘WAMS’.
3
The practice was for each farmer periodically to read the meter on
the WAMS and to report the quantity of water consumed to the

complainant. These readings were also verified from time to time by
the complainant’s official, referred to in evidence as the

‘waterfiskaal’
4
,
who made periodic spot-checks on the farms and personally took
readings from the WAMS units.
[3] For these purposes the appellants had
registered only a single pump-station, known as pump-station 46, in
respect of Dadelvlak.
However, in July 2004 the complainant learned
that the appellants had constructed a second pump-station (referred
to in evidence
as pump-station 46.1) on the farm, which was not
registered and had not been fitted with a WAMS. Understandably, the
complainant
suspected the appellants of using pump-station 46.1 to
abstract water from the river which was not being reflected in their
water
consumption returns. It was later also discovered that the
electrical wiring leading to the WAMS fitted to pump-station 46
appeared
to have been interfered with in such a way that the pump
could be operated without the water abstracted being recorded.
[4
] These discoveries
set in train a series of events which in April 2006 culminated in the
two appellants being arraigned in the
Magistrate’s Court at
Malelane on seven criminal charges. In addition to various charges
under the National Water Act, 36 of
1998 (‘the 1998 Act’), they
were also charged with the common law crimes of fraud and theft.
Despite both appellants denying
their guilt, the first appellant was
convicted on all counts while the second appellant was convicted on
six of the seven counts.
They were then both sentenced to either pay
substantial fines or to undergo imprisonment.
[5] An appeal to the High Court, Pretoria
succeeded to the extent that the appellants’ convictions and
sentences on all but two
counts were set aside, including those of
fraud and theft, while the sentence imposed on the remaining two
counts, which were taken
together for purpose of sentence, was
reduced. With leave of the high court, the appellants now appeal to
this court against their
two remaining convictions and their
sentence. On the other hand, the state sought and obtained leave to
appeal on points of law
against the high court’s decision in regard
to the charges of fraud and theft.
[6
] In the light of this
background, the charges levied by the state which have to be
considered are the following:
Count 1
– it
being alleged that the appellants committed the offence of fraud by
knowingly providing the complainant with false readings
of the
quantities of water they had abstracted from the river at
pump-station 46 during the period 1998 to 2005 (in the alternative,

it was alleged they were guilty of the theft of the water that had
been abstracted through this pump-station but not reflected
in their
water consumption returns);
Count 2
– it
being alleged that the appellants are guilty of theft in that during
the period 1998 to 2005 they stole an unknown quantity
of water which
they had abstracted through pump-station 46.1;
Count 3
– it
being alleged that the appellants contravened s 151(1)(e) of the 1998
Act in that they wrongfully, unlawfully, intentionally
or negligently
tampered or interfered with the WAMS measuring device fitted to
pump-station 46;
Count 4
– it
being alleged that the appellants contravened s 151(1)(j) of the 1998
Act by unlawfully, intentionally or negligently committing
an act
detrimentally affecting a water resource by illegally abstracting
water from the Lomati River at both pump-stations 46 and
46.1 during
the period 1998 to 2005.
[7] The appellants attacked the validity of all
these charges. Not only did they support the court a quo’s decision
that it had
not in law been open to the state to charge them with
fraud and theft, but they also contended that the charges under the
1998
Act could not be brought against them as the complainant was
continuing to operate under the 1956 Act at the material time,
despite
the 1998 Act having been brought into operation. In order to
consider these contentions, it
is useful
to
give a brief historical overview of certain of the laws
relating to the use of water.
[8]
Water being a
scarce and valuable commodity in a country such as ours which is
often wracked by drought, it is hardly surprising
that prior to Union
in 1910 the Cape, Natal, Transvaal and Orange Free State had each
passed legislation which differed in terms
of effect but controlled
the use of public water for purposes of irrigation. It is unnecessary
to detail these differences in this
judgment as the legislation in
question was repealed by The Irrigation and Conservation of Waters
Act 8 of 1912 (‘the 1912 Act’).
Inter alia, it created irrigation
districts,
5
as well as irrigation boards for each such district,
6
which were imbued with various powers, including the power to
construct and maintain reservoirs, channels and other irrigation

works. They were also charged with the obligation to obtain and
conserve the supply of water and to arrange for an equitable
distribution
of any water stored or diverted by any such works
7
and, in order to do so, were empowered to make bye-laws and rules
prescribing ‘the manner of regulating the flow of water and
the
distribution from and use of water in the board’s channels and
other works’.
8
[9] The 1912 Act was repealed by the 1956 Act. Not only did it retain
the common law distinction between private and public water
which had
been recognised in the 1912 Act, but it regulated the use of public
water, providing for it to be used for agricultural,
urban or
industrial purposes. It vested the use of public water for
agricultural purposes in the owner of land riparian to the
public
stream in question.
9
It also provided for the creation of irrigation districts
10
as well as an irrigation board for each irrigation district,
11
which were required, inter alia,
12
to protect the sources of the water of any public stream in its
irrigation district,
to prevent the waste of the water in any public stream, to prevent
any unlawful abstraction or storage of public water,
to exercise general supervision over all public streams within the
irrigation district,
to investigate and record the quantity or share of water which every
person having any right and respect of such water was entitled
to
use,
to supervise and regulate the distribution and use of the water of
all or any of the public streams within its irrigation district,
for that purpose, to erect and maintain such devices for measuring
and defining the flow of the water or controlling its diversion,
and
generally to supervise within the irrigation district the storage,
diversion and use of water in public streams.
[10] The 1956 Act was repealed and replaced by the 1998 Act which
fundamentally reformed South African water law. The common law

distinction between public water and private water was no longer
recognised as a basis for entitlement to the use of water. Instead,

under s 2 of the 1998 Act, government at national level was granted
the overall responsibility for and authority over the country’s

water resources and their use. Section 3 recognises national
government, acting through the minister
13
as the public trustee of the nation’s water resources, as having
the power to regulate the use, flow and control of all water
in the
country. Section 4 goes on to prescribe who is entitled to use water,
and the use of water otherwise than as permitted under
the Act is
both prohibited and criminalised.
14
[11] In addition, the 1998 Act does away with the system of
irrigation districts and their associated irrigation boards and
replaces
them with a system of ‘catchment management agencies’
and ‘water user associations’. The former have as their purpose
the
delegation of the management of ‘water resources’ (defined as
including ‘water courses, surface water, estuaries or aquifers’)
15
‘to the regional or catchment level and to involve local
communities’.
16
The latter are intended to be ‘in effect co-operative associations
of individual water users who wish to undertake water-related

activities for their mutual benefit’.
17
Section 98(4) provides that within six months of the commencement of
the Act an irrigation board established in terms of any law
in force
immediately before the 1998 Act came into operation, is to submit to
the minister a proposal to transform the board into
a water user
association – which proposal the minister, under s 98(5), may
either accept, with or without amendment, or reject.
If the proposal
is accepted, the minister is to gazette a declaration to that effect.
[12] Section 98(2) of the 1998 Act is a ‘sunset clause’. It
provides:
‘
A board continues to exist
until it is declared to be a water user association in terms of
subsection (6) or until it is disestablished
in terms of the law
by or under which it was established, which law must, for the purpose
of such disestablishment, be regarded
as not having been repealed by
this Act.
’
In addition, s 98(3) provides that:
‘
(a) the name, area of
operation, management, property, rights, liabilities, obligations,
powers and duties of a board remain the
same as immediately before
the commencement of this Act;
(b) this section does not affect
the continuity, status, operation or effect of any act or omission of
a board, or of any by-law
made by a board, before the commencement of
this Act;
(c) any person holding office
with the board when this Act commences continues in office for the
term of that person’s appointment;
and
(d) if a position becomes vacant
prior to the declaration of the board as a water user association,
the board may fill the vacancy
according to the procedures laid down
by or under the law which applied to that board immediately before
the commencement of this
Act.’
The clear intention of these provisions is that existing water
irrigation boards should continue in operation until they are
restructured
as water user associations. (Although strictly speaking
it should not be taken into account in interpreting the Act
18
this is confirmed by the explanatory note to chapter 8 of the Act,
into which s 98 falls).
[13] Notwithstanding the six month period prescribed by s 98(4), the
complainant was neither disestablished nor transformed into
a water
user association, and was still continuing to operate by virtue of
the provisions of s 98(2) and (3) at the time of
the appellants’
trial, some eight years after the 1998 Act had come into operation.
How this somewhat surprising state of affairs
came about is, however,
neither here nor there and, for present purposes, it must be accepted
that at all times material to the
charges brought against the
appellants the complainant had continued to exist and to operate with
the obligations, powers and duties
it had enjoyed under the 1956 Act.
[14] In the light of this, the appellants argued that the charges
brought against them under the 1998 Act were not competent as,
so
they submitted, the 1956 Act had continued to be in force in the
complainant’s irrigation district – and it did not create
similar
statutory offences. In my view, for the reasons that follow, this
cannot be accepted.
[15] While it is so that the complainant had continued to exist and
exercise the functions it had performed under the 1956 Act,
this does
not mean that the 1956 Act had not been repealed throughout the
country, including within its irrigation district. The
complainant’s
existence and functions were merely preserved as a temporary measure
to enable it to continue to operate. Had the
legislature intended the
1956 Act not to have been repealed within the areas of operation of
irrigation boards established under
that Act when the 1998 Act came
into operation, it would have been a simple matter for it to have
said so. It did not do so, and
such an intention is not a necessary
inference. Indeed, the provisions of the 1998 Act clearly indicate
the contrary. Thus, for
example, a person who enjoyed an existing
lawful water use before the commencement of the 1998 Act, was
permitted under the provisions
of s 34 of the latter Act to
continue to exercise that use. The explanatory note to part 3 of
chapter 4 of the 1998 Act, into
which s 34 falls, gives the following
relatively simple and accurate summation of the provisions of that
part of the chapter:
‘
This Part permits the
continuation under certain conditions of an existing water use
derived from a law repealed by this Act. An
existing lawful water
use, with any conditions attached, is recognised but may continue
only to the extent that it is not limited,
prohibited or terminated
by this Act. No licence is required to continue with an existing
lawful water use until a responsible
authority requires a person
claiming such an entitlement to apply for a licence. If a licence is
issued it becomes the source of
authority for the water use. If a
licence is not granted the use is no longer permissible.’
[16] Thus, although an irrigation board might continue to exist and
operate with the various duties and obligations it had under
the 1956
Act despite the coming into operation of the 1998 Act, it does so by
reason of the provisions of the latter which clearly
apply within the
irrigation district of each such an irrigation board and regulates
the use of water. Accordingly, anyone who commits
an offence
envisaged by s 151 of the 1998 Act may be charged under that
Act, even if the offence is committed within the irrigation
district
of an irrigation board established under the 1956 Act which continues
to exist and operate by reason of s 98 of the 1998
Act.
[17] It was therefore clearly competent for the state, in counts 3
and 4, to charge the appellants with offences under s 151 of
the 1998
Act. Whether the evidence establishes their guilt on these counts is
another matter, to which I shall return in due course.
[18] It is convenient at this stage to consider the issue raised in
the cross-appeal, namely, whether it was competent to charge
the
appellants with the common law offences of fraud (count 1) and theft
(count 2, and as an alternative on count 1) or whether
the state was
limited to charging them with no more than the statutory offences
created by the 1998 Act. The cross-appeal flows
from the court quo's
finding that the legislature, by comprehensively regulating the use
of water by way of the 1998 Act in which
it created numerous
statutory offences, necessarily intended to limit the prosecution of
persons for offences in relation to water
and its use to those it had
provided under that Act, and had excluded common law offences the
elements of which overlapped with
such statutory offences.
[19] In my view, the court a quo misdirected itself in this regard.
The mere fact that certain conduct might constitute an element
of
both a common law offence and a statutory offence is not in itself
any reason to find that the legislature intended only the
statutory
offence to be capable of prosecution. There are numerous instances
where certain conduct will be an element of both a
common law and
statutory offence. An obvious example which springs to mind is the
negligent driving of a motor vehicle. This amounts
to a statutory
offence and an essential element of the common law offence of
culpable homicide where it results in a loss of life.
But that is no
bar to the offender being charged with culpable homicide and, in the
alternative, the statutory offence of negligent
driving. Indeed, this
court has recognised that in certain cases where conduct which
amounts to a statutory offence overlaps with
the common law offence,
the penalty prescribed for the statutory offence may in certain
circumstances be a useful guide in considering
an appropriate
sentence for a conviction of the common law offence.
19
[20]
I accept that, in
principle, the legislature could bar the prosecution of certain
common law offences and restrict the prosecuting
authority to
bringing charges solely in respect of statutory offences. But there
is no provision in the 1998 Act which specifically
debars common-law
offences relating to water or its misuse, nor can such a provision be
found by necessary implication, and the
court quo erred in finding
that the appellants could not be prosecuted for common law offences.
[21]
While I thus see no
reason why a charge of fraud could not be brought against the
appellants, that is not the end of the matter
in respect of whether
water pumped out of the Lomati River could be the subject of a charge
of theft, an issue which needs more
detailed examination.
[22]
Roman law recognised certain things as
being
res extra patrimonium
which were incapable of being
owned, including those things classified as
res communes
being
‘things of common enjoyment, available to all living persons by
virtue of their existence’.
20
Public water, running in a river or a stream, was recognised as being
res communes
and therefore incapable of being owned.
21
These Roman law principles were adopted by Roman–Dutch law and
subsequently recognised in South Africa.
22
Indeed, s 6(1) of the 1956 Act specifically provided that ‘there
shall be no right of property in public water and the control
and use
thereof shall be regulated as provided in this Act.’
[23] As water in a public stream was therefore incapable of being
owned, it was also incapable of being stolen
23
and I did not understand the state to contend otherwise. However, it
submitted that the fundamental changes brought about by the
1998 Act
resulted in this no longer being an accurate reflection of our law.
Its argument in this regard was based on the Act having
specifically
placed water resources under the trusteeship of national government
as I have already mentioned in para 10 above.
But I do not see how
the fact that government now exercises administration and control
over water flowing in a river means it must
now be regarded as
capable of being owned and thus capable of being stolen. Effectively
the 1998 Act does no more than place all
water within the aegis of
state control, which control the state had in any event exercised
over public water before it came into
operation. The legislature
created various statutory offences under the 1998 Act and, if it had
wished to create the offence of
theft of water, it could easily have
done so. It did not. Instead, in s 151(1)(a) it made the use of water
other than as prescribed
by the Act an offence.
[24] Accordingly, my prima facie view is that water flowing in a
stream or river (a water resource as envisaged by the 1998 Act)
is
not capable of being stolen, so that a riparian owner who abstracts
more water from such a water resource than that to which
he or she is
legally entitled may commit a statutory offence under s 151 of the
1998 Act but does not commit the offence of theft.
However, it is not
necessary to reach a final decision on this issue as, even if it had
been competent for the state to charge
the appellants with theft,
that charge could only have been sustained if the appellants had
taken more water than what they had
been entitled to abstract. On
appeal, the court a quo concluded that the evidence in the trial
court had failed to establish that
to have been the case, and for
that reason the appellants’ conviction for theft could not stand.
The ratio of the decision of
the court a quo was based on this
factual finding, not on the point of law that a charge of theft could
not be brought. Its observation
to the effect that a charge of theft
of water was inappropriate was no more than a passing comment and was
not the underlining
reason why the conviction of theft was set aside.
That being so, the court a quo erred in granting leave to appeal on a
point of
law in respect of the theft charge which could not determine
the appellants’ guilt or otherwise on that charge. And in any
event,
I agree that the state failed to establish that the appellants
had abstracted more water from the river than that to which they
had
been entitled, even if the circumstances were such that their actions
gave rise to a very real suspicion that they had done
so. In these
circumstances the cross-appeal in relation to the charge of theft
cannot succeed.
[25] I turn to consider whether the evidence established the
appellants’ guilt on the three remaining counts. It was argued on

behalf of the appellants that the evidence of a state witness, David
Maduna, an employee of the appellants, should be disregarded
as he
had not been properly sworn in by the magistrate. The point is
debateable but, for purposes of this appeal, I intend to accept
that
no account should be had of his evidence. The remaining witnesses
were found by the magistrate to be reliable and the attack
upon their
honesty and credibility contained in the appellants’ heads of
argument was not only unjustified and groundless but
was, in the
main, based on speculation and matters not raised in evidence. The
appellants did not testify and, in these circumstances,
there is no
reason not to accept those factual findings of the trial magistrate,
which were also accepted by the court a quo.
[26] As I have mentioned, the appellants’ farm lies within the
irrigation district of the complainant. The appellants registered
a
single pump-station with the complainant which was fitted with a WAMS
to measure the amount of water they abstracted from the
Lomati River.
In terms of an undertaking they had given, the appellants
periodically passed on the readings to the complainant.
Those
readings were verified from time to time by the waterfiskaal. Despite
the complainant having been entitled to make bye-laws,
the scheme
appears to have been administered by consent rather than by the
passing of bye-laws or regulations.
[27] In July 2004 the waterfiskaal, Mr du Toit, discovered that the
appellants had built pump station 46.1 on the their farm to
which
there was no WAMS or similar system fitted, and were using it to pump
water from the Lomati River to a nearby storage dam
on the farm –
from which water was led to irrigate certain lands. This was reported
to the complainant whose committee took the
matter up with the
appellants and informed them that the pump-station was illegal and
that they were to fit it with a WAMS. They
agreed to do so at their
own cost, but it was subsequently ascertained that the flow-meter was
mounted inside the pump-house which
was locked, and thus did not
comply with the complainant’s specifications as it was not
accessible to the waterfiskaal.
[28] As a result of certain information received, the complainant
also suspected that the WAMS unit at pump-station 46 had been

de-activated so that the appellants could pump water from the river
which would not be recorded. This led to the complainant obtaining
a
warrant to carry out an inspection on the appellants’ farm.
Consequently, on 3 March 2005 a qualified electrical contractor,
Mr
WJ de Beer, inspected pump-station 46 in the company of the second
appellant. When the second appellant unlocked the pump-house,
De Beer
noticed that the pump was running but that the WAMS was not
registering the water flow. The cause of this was found to
be that
the electrical wiring leading to the WAMS had been bridged. It is
unnecessary to deal with the technical evidence save
to state that it
was quite clear that the electrical circuits had been altered so that
the pump could run without the WAMS system
reading the quantity of
water being abstracted.
[29] This evidence, unchallenged as it was by the appellants,
establishes that the appellants pumped an unknown quantity of water

out of the river at pump station 46 which was not registered on the
WAMS system affixed to that pump. As the figures recorded by
the WAMS
were forwarded to the complainant as being the appellant’s water
consumption from the river, the appellants therefore
intentionally
brought the complainant under the impression that they had abstracted
less water than they had actually done. It
also prevented the
waterfiskaal from verifying the accuracy of the figures that
appellants had submitted. In a nutshell, the appellants
deceived the
complainant in regard to the quantity of water they had abstracted
from pump station 46.
[30] The court a quo appears to have found that the misrepresentation
made by the appellants could not be regarded as being unlawful
as
there was no statutory obligation on their part to provide correct
information. But that misses the true issue, namely, that
the
appellants intended to and did in fact deceive the complainant by
forwarding water consumption figures which they knew were
incorrect.
The complainant was required to protect the sources of the water in
the river, to prevent any unlawful abstraction of
such water, to
exercise general supervision over the river and to recall, supervise
and regulate the use of the water in the river.
24
The complainant was thus clearly prejudiced by the appellants’
misrepresentations as it relied on the accuracy of the information
it
received as to the water abstracted from the river in order to
discharge its functions. The essence of fraud is the deception
of the
victim by way of misrepresentation causing prejudice or intentional
prejudice, and it matters not that the appellants were
not under a
statutory obligation to provide accurate figures. Misrepresentations
were clearly made by both appellants, either in
concert or by making
common cause with the actions of each other, and caused either direct
or potential prejudice to the complainant.
Consequently, while the
appellants cannot be found guilty of theft of the unknown quantity of
water which they abstracted but did
not account for to the
complainant, there is no reason why they cannot be found guilty of
fraud. I have no difficulty in concluding
that the state established
the guilt of both appellants on count 1.
[31] In relation to count 3, it is alleged by the state that the
appellants contravened s 151(1)(e) of the 1998 Act by having

wrongfully and intentionally tampered or interfered with the WAMS
device fitted to pump station 46. That the device was interfered
with
by way of a carefully crafted bridging device being fitted to its
electrical system leading is clear. This was done within
the
pump-station which was locked and to which only the appellants had
access. The irresistible inference is that the appellants
were
directly responsible for the installation of the bridging device to
enable them to run the pump without the WAMS recording
the amount of
water being abstracted. The only real defence to the charge offered
by the appellants in the appeal was that they
could not be charged
under s 151 of the 1998 Act. But, for the reasons already given,
there is no merit in that defence. Again,
I have no difficulty in
concluding that the appellants were correctly convicted on this
charge.
[32] The charge against the appellants in to count 4 was that they
had contravened s 151(1)(j) of the 1998 Act by unlawfully abstracting

water from the Lomati River at both pump-stations 46 and 46.1. The
essence of an offence under s 151(1)(g) is an act ‘which
detrimentally affects or is likely to affect a water resource’. It
is clear that the appellants pumped quantities of water from
the
Lomati River, which is a ‘water resource’ as defined, at both
those pump stations for which they did not account to the

complainant. This would have occurred whenever water was abstracted
from pump station 46.1 (which was not fitted with a WAMS) and
when
the water abstracted from pump-station 46 was not recorded by its
WAMS due to the meter having been cut out of the electrical
system by
the unauthorised bridge.
[33] As the complainant was charged with the administration of the
water in the river and obliged to supervise and regulate its
use, the
appellants’ actions would clearly either have detrimentally
affected the river or have been likely to have done so.
I therefore
have no difficulty in finding that the appellants were correctly
convicted on count 4 as well.
[34] I turn now to the question of sentence. At the outset, I shall
deal with count 1 ie the count of fraud. For purposes of sentence,

the trial court took this conviction together with the conviction of
theft on count 2 and imposed a fine of R30 000 or 18 months’

imprisonment wholly suspended for five years on certain conditions.
Of course, the appellants are now to be sentenced merely for
the
single count of fraud. Nevertheless, the offence is a severe one,
relating as it does to a scarce natural resource. In these

circumstances I am of the view that it would be appropriate to
sentence each appellant to a fine of R20 000 or 12 months’
imprisonment
but to suspend the sentence in its entirety for five
years on condition that he is not convicted of fraud committed during
this
period of suspension for which he is sentenced to imprisonment
without the option of a fine.
[35] The court a quo took both counts 3 and 4 together for the
purposes of sentence, and sentenced each appellant to a fine of
R5
000 to be paid to the complainant within 30 days or six months’
imprisonment. Although the appellants appealed against both
the
amount they were ordered to pay as well as the length of the period
of imprisonment imposed as an alternative, they were, if
anything,
leniently treated and I see no reason to interfere. However, the
condition that the amount of R5 000 be paid to the complainant
is
inappropriate. Not only does the complainant possibly not still
exist, but effectively the court imposed a compensatory order
in
respect of which the procedures, required by s 152 of the 1998 Act
and
s 300
of the
Criminal Procedure Act 51 of 1977
, were not
followed. The parties therefore agreed that this court should alter
the sentence to reflect the amount as a fine payable
to the state.
[36] In the result, I order as follows:
1. The appeal against the appellants’ convictions on counts 3 and 4
is dismissed.
2. The appeal against the sentence imposed in respect counts 3 and 4
is upheld and the sentence altered as set out below.
3. The respondent’s cross-appeal in regard to count 1 (fraud) is
upheld and the high court’s order upholding the appellants’

appeal against their conviction on that count is set aside.
4. The respondent’s cross-appeal in regard to count 2 (theft) is
dismissed.
5. The order of the high court is altered to read as follows:
‘(a) The appeal in respect of the first appellant’s conviction on
counts 2, 5, 6 and 7 and the second appellant’s conviction
on
counts 2, 5 and 6 is upheld and such convictions and the sentences
imposed in respect thereof are set aside.
(b) The appeal in respect of the appellants’ convictions on counts
1, 3 and 4 is dismissed.
(c) In respect of their conviction on count 1 (fraud) each appellant
is sentenced to a fine of R20 000 or 12 months’ imprisonment,

wholly suspended for four years on condition he is not convicted of
fraud committed during the period of suspension and for which
he is
sentenced to imprisonment without the option of a fine.
(d) The appeal against the sentence imposed in respect of counts 3
and 4 is upheld, the sentence is set aside and (both counts
being
taken together for purposes of sentence) replaced in the case of each
appellant with a fine of R5 000 or six months’ imprisonment.’
________________
L E LEACH
ACTING JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANTS: J Nel
INSTRUCTED BY: Coert Jordaan Attorneys, Nelspruit
CORRESPONDENT: Giorgi en Gerber Attorneys, Bloemfontein
COUNSEL FOR RESPONDENT: L Kok
INSTRUCTED BY: Director of Public Prosecutions, Pretoria
CORRESPONDENT: Director of Public Prosecutions, Bloemfontein
1
The full name is ‘
Dadelvlak
506 JU’.
2
Proclamation 286, 1969 published in GG2551 of 31 October 1969.
3
An acronym for ‘Water Administration Monitoring
System’.
4
The water bailiff.
5
Section 81.
6
">
6
Section
83.
7
">
7
Section 89(2).
8
">
8
Section 95(b).
9
">
9
Section 9(1).
10
Section
s 71 to 77.
11
Section
79.
12
">
12
Section 89.
13
">
13
Defined as the Minister of Water Affairs and Forestry.
14
Section 151(1)(a)
as read with
s 151(2).
15
">
15
Section 1.
16
See the explanatory note to Chapter 7 of the
1998 Act.
17
See the explanatory note to Chapter 8 of the 1998 Act.
18
See s 1(4) of the
1998 Act.
19
Eg
R v Sacks
1943 AD 413
at 428 and
R v Mzwakala
1957 (4) SA 273
(A) at 279B-C.
20
See eg J A C
Thomas
Textbook of Roman
Law
(1976) at 129.
21
Justinian
Institutes
2.1.1 and Lawsa (1
st
re-issue) vol 30 par 358.
22
Lawsa
op cit.
23
J Burchell
Principles of Criminal Law
3 ed (2005) at 167.
24
See para 9 above.