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[2017] ZAGPPHC 427
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Terblanche v Minister of Water and Environmental Affairs (76577/10) [2017] ZAGPPHC 427 (4 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 76577/10
DATE
:
2017-04-04
Reportable:
NO
Of
interest to other judges: NO
Revised.
In
the matter between:
PETRUS
WILHELM
TERBLANCH Plaintiff
and
THE
MINISTER OF WATER AND ENVIRONMENTAL
AFFAIRS Defendant
JUDGMENT
TEFFO,
J
:
[1]
The plaintiff and six others instituted similar actions under
different case numbers in this court against the defendant for
damages suffered as a result of the suspension of water supply to
their properties by officials of the department of water and
environmental affairs (the
"department').
[2]
The parties elected to proceed with the action instituted by the
plaintiff only and the other matters were removed from the
roll. It
was agreed that I should only determine liability on the
understanding that the outcome thereof will also apply to the
other
matters in so far as the facts are not distinguishable.
[3]
The plaintiff is the registered owner of Portion 97 of the farm
Cornelia, measuring 457 1440 hectares in extent in terms of
Deed of
Transfer T 1067/1975 (the
"property")
situated
downstream of the Koppies and Roodepoort dams.
[4]
He was a water user in terms of the provisions of section
22(1)(a)(ii) read with section 32 of the National Water Act, 36 of
1998 (the
"NWA")
and entitled to water supply
through a canal system from the Koppies dam.
[5]
It is alleged in the particulars of claim that during 2003 the
officials of the department acting in their capacity as such,
stopped
water in the canal which supplied water to the property thereby
infringing on the water use rights of the plaintiff on
the basis that
the water use charges of the plaintiff were in arrears.
[6]
It is further alleged that the said infringement was unlawful as the
officials failed to comply with the provisions of section
54(4) of
the NWA, alternatively section 59(4) in that the plaintiff was not
given an opportunity to make representations.
[7]
At paragraph 9 it is further alleged that the said infringement was
negligent in that a reasonable man in the position of the
officials
of the department would have complied with the provisions of sections
54 and 59 of the NWA, that nothing prevented them
from complying with
the provisions of the aforementioned sections and that a reasonable
man in their position would have acquainted
himself with the
provisions of the NWA and did everything in his power to comply with
the Act.
[8]
It is alleged that as a result of the infringement of the plaintiff's
water use rights, the plaintiff suffered damages in the
amount of
R250 000,00 (two hundred and fifty thousand rand)
[9]
In paragraphs 12 and 13, the plaintiff alleges that at the time the
officials of the department suspended the water supply to
his
property, they were aware that he used the water for irrigation. They
acted negligently by suspending the water supply. The
officials were
also aware at the time that the canal system was not well maintained
and that there was drought and drought relief
was approved on 6
August 2007, so it was alleged.
[10]
In July 2013 the defendant delivered a plea on the merits and in
November 2014 the defendant amended her plea to include a
special
plea.
[11]
The special plea reads:
1.The
plaintiff claims the amount of R250 000,00 in respect of the loss
incurred
as a
result
of the alleged negligent and unlawful suspension of the water supply
through
a
canal
system to the plaintiff's properties by the defendant during or
around
2003.
2.
Accordingly, as at no later
than December 2003, being
a
period of more than
three years before service of the plaintiff's summons, the plaintiff
knew or ought to have reasonably known:
2.1.
that the defendant has
suspended water distribution from the canal to the plaintiff's
properties;
2.2.
there was no longer any
irrigation taking place on his properties;
2.3.
that the plaintiff has
suffered, alternatively, would suffer loss as
a
result of the
suspension of the water distribution, and
2.4.
the identity of the defendant
(its alleged debtor) and of the material facts giving rise to his
claim.
3.
In the premises, the
plaintiff's claim in respect of the loss in annexure
"A"
of his particulars of
claim has prescribed in terms of
section 11
of the
Prescription Act
68 of 1969
and falls to be dismissed with
costs."
[12]
In her plea the defendant admitted the following: that the plaintiff
was the owner of the property which formed part of the
Rhenoster
river Koppies dam State Water Works, was the holder of a water usage
licence and water rights as contemplated in
section 22
read with
sections 42
and
32
of the NWA in respect of the property and that on
6 October 2010 she purchased the water rights of the plaintiff.
Furthermore that
at all material times she was responsible for the
proper upkeep and maintenance of the canal, that since and/or around
2003 the
canal disintegrated into a dilapidated state and that the
water users in the Rhenoster river applied for and were granted
drought
relief in 2007.
[13]
The defendant however pleaded that the plaintiffs water use rights
were subject to the plaintiff paying his water charges in
order to
access water distribution from the Koppies dam through the canal
system.
[14]
She further pleaded that in terms of the provisions of
section 56
of
the NWA, water use charges are used to fund among others, the
maintenance of the canal system. The plaintiff as a holder of
the
water use rights was therefore obliged to pay for the water use
charges, but he failed to pay, so it was pleaded.
[15]
The defendant further pleaded that her duty and responsibility for
the upkeep and maintenance of the canal is/was dependent
on the
effective collection of water use charges which would be used for the
maintenance of the canal.
[16]
It was also pleaded that the canal system has disintegrated into a
dilapidated state due to lack of maintenance to a point
that proper
distribution of water was not possible. However, failure by the water
users to pay for their water use charges made
the defendant's task to
maintain the canal system impossible.
[17]
The defendant denied that the plaintiff utilised water through the
canal system during 2003.
[18]
She further denied that there was any suspension of the water supply
to the plaintiff’s property as contemplated in the
NWA in 2003.
[19]
In paragraph 11 of her plea, the defendant pleaded that during or
about January 2005, she suspended water distribution through
the
canal to the plaintiffs farm on the basis that the plaintiff was in
arrears in respect of payment of the water usage charges,
the canal
was dilapidated and not in a proper functioning state and that no
water distribution was effected through the canal as
at that time.
She denied that she did not comply with the provisions of the NWA.
[20]
The defendant further denied that the failure to comply with the
provisions of the NWA as alleged was unlawful and/or negligent
and
pleaded specifically that the actions of the officials of the
department constituted administrative actions in terms of the
Promotion of Administrative Justice Act, 3 of 2000 ("PAJA").
They remain valid until declared unlawful and set aside
by a court of
law.
[21]
The defendant also pleaded at paragraph 12 that during or about
January 2005 a notice of
"suspension of entitlement to use
water in terms of section 54(1) of the NWA"
was served on
the plaintiff and that during or about July 2007 she received
representations in respect of the said notice from the
third
plaintiff.
[22]
It was denied that the conduct of the officials of the department
caused the plaintiff any damages as alleged and that there
was any
irrigation taking place on the plaintiff's farm using water from the
canal during or around the time the suspension was
effected.
[23]
The plaintiff's replication reads as follows:
"2.Unless
expressly admitted herein, all the allegations raised in the special
plea and the plea on the merits must be regarded
as
having been denied and
specially traversed.
3.
With reference to the
special plea, the plaintiff denies that its claim against the
defendant has prescribed.
4.
It is
specifically pleaded that the plaintiff together with other water
users scheduled under the Rhenoster river Government Water
Scheme
applied for drought relief for the 2003 period, which drought relief
was only granted by the defendant, to the plaintiff
and other water
users on the Rhenoster river Government Water Scheme, on
6
August 2007. A copy of
the approved submission to the Director-General of the defendant is
attached hereto
as
'PWT1'.
5.
By
approving the said application for drought relief, the defendant
represented by her Director-General, conceded that the plaintiff
is
entitled to receive water from the Rhenoster river Government Water
Scheme.
6.
The sole reason why
the defendant failed to provide water to the plaintiff, is the fact
that the defendant did not maintain the
Rhenoster river Government
Water Scheme.
7.
The fact that the
Rhenoster river Government Water Scheme was not maintained, was
brought to the attention of the defendant and
her officials on
various occasions on behalf of the plaintiff and the other water
users, on the said Government Water Scheme.
8.The
defendant, alternatively her officials, further undertook on various
occasions, since 2003, to address the issues regarding
maintenance of
the Rhenoster river Government Water Scheme, and thereby admitted
that the plaintiff is entitled to receive water
from the Government
Water Scheme.
9.
The defendant did not
comply with her, alternatively her officials' undertakings, as set
out above.
10.
T
he
defendant further persisted in levying water use charges against the
plaintiff's properly up to date in terms of the provisions
of section
59
of
the National Water Act, 1998 (Act 36 of 1998).
11.
The defendant's
continued suspension of water to the plaintiffs properly therefore
constitutes a continuous wrong.
12.
T
he
continuous wrong only came to an end when the defendant offered to
buy the plaintiffs existing lawful water use entitlement,
which was
scheduled under the Rhenoster river Government Water Scheme and
performed in terms of that offer, on or about 6 October
2010."
[24]
The plaintiff, Mr Petrus Wilhelm Terblanche testified in support of
his case. The defendant closed her case without calling
any
witnesses.
[25]
A brief summary of the evidence led by the plaintiff is as follows:
He is an adult male of 81 years. He resides at Cornelia
farm situated
at the Koppies district. He is a farmer and has been farming from
1972 to date at the farm, Cornelia. He was involved
in dairy farming
between 1996 and 2003. He has been feeding his dairy cows with
lucerne. He could produce it at a cheaper price
than buying it. He
planted lucerne through irrigation on plus minus 5 hectares on his
farm. He received water to irrigate the lucerne
from the Rooipoort
dam through the medium of a canal system. Water officials who worked
for the department supplied water. Before
2003 he would make an
application for the quantity of water for a specific period in order
to get scheduled water from the Koppies
dam system. The period
depended on the date given to him and the amount of the water. The
canal got dilapidated because its maintenance
was not done. He made 6
cuts in overall of the lucerne per year that he planted per
irrigation before 2003. On the dry land he
made 3 to 4 cuts per year.
The irrigated lucerne dries out if it is not irrigated and he will
suffer damages because the seed also
dries out as they will not be
getting enough water. If the irrigated lucerne does not have water,
its yield would not grow. It
is cheaper to plant and produce one's
own lucerne as he saves up to 70%. Because he did not have water, he
had to buy lucerne and
it also cost him transport, his dairy
production totally deteriorated and without sufficient fodder he
reduced the number of dairy
cows. It was no longer costly for him to
keep the cows. He suffered financially.
[26]
There was drought in the Koppies dam between 2002 and 2005. He was
referred to a document appearing on page 135 of file 6,
Bundle 12 and
asked whether he ever saw the document. His response was, "Yes",
he saw it in the morning of the day he
was giving evidence in court
at his counsel's chambers. The document is addressed to the Acting
Regional Director: Free State and
it reads:
"SUSPENSION
OF ENTITLEMENT TO USE WATER IN TERMS OF
SECTION 54(1)
OF THE
NATIONAL
WATER ACT: RHENOSTER
RIVERGWS
Attached
please find
a
list
of water
users
at
the Rhenoster River GWS who did not pay the water
use
charges which were
payable on 31 July 2004.
The
Regional Director
has
been delegated in
terms
of
section 54(1)
of the
National Water Act to
suspend the entitlement to
use
water
to
users
who
fail to pay charges which are payable in
terms
of the Act.
Your
approval
is
required
to suspend the supply of water on 10 January 2005 to
users
whose
names
appear on the attached
list, and who, by that date, have failed to pay or make arrangements
for the payment of outstanding water
use charges.
Recommended.
Chief
Engineer: Middle Vaal MWA
Approved.
Regional
Director Free State."
[27]
He was never summoned by the defendant for an outstanding water
account before 2010. He never received any document from the
defendant before January 2005. He was never asked to make any
representations. If he was asked to make any representation, he would
have told the Committee about the request. If they had decided to
suspend his water supply, he would have made an application for
drought relief because at that time they were in a drought period.
His problem would be resolved but due to the lack of maintenance
on
the canal system, the ground canals were dilapidated. According to
his knowledge the application for drought relief was made
in 2005.
[28]
Under cross-examination he testified that he completed a form for the
supply of water and registered 5 hectares before 2001
because the
drought started in 2001. He conceded that he testified in his
evidence-in-chief that there was drought from 2002 to
2005. When
asked whether he testified that he registered in 2001, he said there
was drought prior to that and that he did not register
but there was
a routine of completing application forms. He was then asked whether
he completed the forms in 2001 and his response
was that he did not
say he completed the forms in 2001, he cannot say when the forms were
completed and that it was a long time
ago.
[29]
He further testified that he farmed dry land lucerne between late
1980 and early 1990 and the irrigable lucerne from 1976 up
to the
time he did not have water. When asked as to when did he not have
water, he said the time there was drought and the canals
were not
maintained. Dry land lucerne lasted only for three years from 1988 to
1991 and it died because there was no rain. Irrigable
lucerne dies if
he does not irrigate. He used the irrigable lucerne to feed his dairy
cows. Without the fodder to feed his cows
he would not run his dairy
farming as it would be expensive.
[30]
He also testified that the canal from the Koppies dam to the
Rooipoort dam was in a bad dilapidated stage. It could not transport
the water properly. The water went all over the open place. He was
asked as to when did he notice this. He said the time he did
not get
water. When asked when was that, he said he could not precisely say.
He was referred to the letter of demand dated 25 October
201O and
appearing on page 15, File 1, Bundle 1, paragraph 2 which reads:
"2.
It is placed on record that officials of your department closed down
the sluices with which our client received water,
during 2003. It is
further placed on record that your department has not complied with
the provisions of section 59(4) of the National
Water Act, 1998 (Act
36 of 1998) and did not give our client the opportunity to make
representations before the suspension of the
water supply to our
client has been imposed. It is further placed on record that your
department has failed to maintain the canals
that form part of the
Rhenoster River Government Water Central
Area."
The
letter of demand is from his attorney of record and has been
addressed to the Director-General of the department. He testified
that he did have any knowledge of the letter. He has never seen it
before. When asked whether he knew Mr Taute, the attorney, who
wrote
the letter, he said he only met him on the morning of the trial, he
knew that he was the attorney representing him in the
matter and the
person who wrote the letter on his behalf.
[31]
He was referred to a diagram with a heading
"Koppies Canal”
on page 13 of File 6, Bundle 12 and he testified that the state
canal called the Vredefort Canal is situated 50 metres behind his
house. He also explained how an application was made to the state
water officials for the supply of water through the canal, that
they
completed a form indicating how much water they required and for how
many hectares, that the form was submitted to the controller
of the
Scheme and after receipt of the application, the water officials
opened the canal to supply the water. When asked how many
times did
they submit the forms, he testified that it depended on the climate
and the drought at that stage. He was asked as to
when last did he
submit the application for water irrigation and his response was, he
cannot answer that correctly. He was also
asked whether there was a
stage where he submitted a form and water was not supplied to him and
he testified that he cannot remember.
He further testified that no
water would be supplied to him without an application.
[32]
He was again referred to the letter of demand from his attorneys of
record dated 25 October 2010 on File 1, Bundle 1, page
15 and told
that according to it the officials of the department closed the
sluices with which he received the water in 2003. He
was asked
whether that was indeed the case according to his knowledge even
though he testified that he did not recognise the letter.
He
testified that according to the letter it must be true. He was
further asked if the supply of water to his property was ever
stopped
in 2003 and he said he cannot remember. He was also asked whether he
forgot when he stopped irrigating his crops and his
response was when
the supply was no longer there. It was put to him that but he knew
that at some stage he was not able to grow
the lucerne because there
was no water supply to his property and he said "Yes". When
asked whether that happened in
2003, he testified that he cannot give
an answer. When asked whether he was irrigating in 2004, 2005, 2006
and 2007, he said
"No".
[33]
He was further asked as to what did he do when he was not irrigating
and not getting water. He testified that he brought the
matter to the
attention of the Water Users Association Committee (the "Committee")
led by Mr Scheepers and Mr Crafford.
When asked what did he tell
them, he testified that it was about the circumstances relating to
the maintenance of the canal and
that there was no water supply due
to that. He was referred to the application on page 189 on File 2,
Bundle 4, which he confirmed
was launched in 2009 and that he was one
of the applicants who were represented by Mr Crafford. When told that
the application
was to force the department to maintain the canals
and supply water, he testified that he was not that much involved. He
was semi-retired
at that stage. He was also referred to a supporting
affidavit signed by him in relation to the application that was
launched in
2009 on page 611 in File 3, Bundle 7 and conceded that at
that stage he was not able to grow his crops. It was put to him that
in his evidence-in-chief he testified that he suffered damages when
he could not grow the lucerne yet in 2009 he went to court but
did
not claim damages. He responded by saying he cannot respond because
he was not personally involved.
[34]
It was further put to him that at that time he knew he was not
getting water, he could not grow the lucerne and was suffering
damages and his response was
"Yes".
He conceded that
he testified that he knew much earlier in 2004 and he approached the
committee. He was shown a document called
"pre-feasibility
study of the Koppies irrigation
scheme
on page 1022, File 4,
Index
6
Bundle
9" and he testified that he has never
seen it before.
[35]
He was asked whether he remembers the tariff that he was paying at
the time and he testified that he did not. When asked whether
he
remembers if the tariff was reduced or not acceptable, he
testified that it was too high and not acceptable. He was further
told that the report did not taint a good picture of the situation
with the dam and he did not agree as he testified that if the
canals
were maintained they would have been supplied with water necessary to
irrigate their lands. He further testified that he
did not have
knowledge as to whether the report was submitted to the Water Users
Association (the "WUA") in 2007 shortly
after it was
issued. When told that the WUA rejected the report, he testified that
the only issue that was rejected related to
the tariff.
[36]
He conceded that as early as mid-2007 the WUA were aware of the
contents of the report but indicated that he was not involved.
He
also conceded that members of the WUA including him were not paying
their water use tariff and that there were outstanding payments
in
2005. When asked whether he or the WUA came up with the solution
after being presented with the report, he testified that he
did not
know what was arranged by the WUA.
[37]
He was referred to letters from the department dated 20 January 2003
on page 1, File 2, Bundle 4, Index 1, dated 16 July 2007
on page 2
same bundle and a recommendation contained in the letter dated 19
August 2007 on page 6, the same bundle. The letter
dated 20 January
2003 from C J van Staden is addressed to all water users and reads:
"Rhenostenivier
CWS Waterbeperklinqs
Weens
die gebrek aan voldoende reiin en die Jae damstand is hierdie kantoor
verplig
om
waterbeperl<ings
soos volg in te stel.
Watergebruikers
word beperl< tot 'n 80% van die oorblywende kwota
vir
die watetjaar 2003/2004 wat op 31 December 2003 nog oor was vir
gebruik tot 31 Maart 2004. Die beperl<ing sluit ook Ngwathe
Munisipaliteit in.
Sterkte
met die boerdery.
Gebiedsbestuurder"
The
letter dated 16 July 2007 is addressed to the Director-General from
Ms Thandeka Mbassa DOG Regions. The subject matter is Rhenoster
River
(Koppies) Government Water Scheme: Request by Free State Agriculture
for a reduction in water charges in the light of the
drought
situation during 2003/4 and 2004/5. It only reads
"find
attached documents for your approval'.
The
recommendation on page 6 reads:
"Based
on the rules to be applied during droughts in terms of the new
Pricing Strategy, the following rebates on charges are
proposed:
Table
3: Percentage rebate (discount)
Category
of charge
Rhenoster
River
(Koppies)
Scheme
2003/04
(30% quota)
2004/5
(0% quota)
Depreciation
charge
100%
100%
OTM
charge
WRM
charge
70%
0%
100%
0%"
[38]
After being referred to his evidence that he testified that the
drought started in 2002 he was requested to comment after seeing
the
above letters and he could not comment on the letter from C J van
Staden. As regards the recommendations he was asked if he
was aware
of the request for water use charges and he said he was not fully
informed about it. When asked whether he knew of any
application for
drought relief, he testified that he had knowledge of it but was not
directly informed. He has never seen any document
in relation
thereto. He confirmed that the application for drought relief was
done on his behalf.
[39]
After being referred to the water situation during 2003/4 and 2004/5
at the Koppies Scheme as summarised on page 5 paragraph
3, the same
bundle, he was asked as to when did he not get water. He testified
that water was supplied because of the drought situation
and that he
cannot dispute the table and its findings. When asked why he was not
getting the water account,he said he did not want
to open a dispute
on the day he was testifying and that the main issue was that the
canals were not properly maintained and the
water could not reach its
destination. He further said what he heard was that it was too costly
to repair the canals to what it
was before in its original stage.
[40]
He was asked whether his evidence was that he did not have water
because the canals were dilapidated or not maintained or because
the
water was suspended and he said he will leave it to his counsel to
answer. After the question was repeated, he said "Yes"
maintenance was also involved during that time. He conceded that he
was obliged in terms of the law to pay water charges irrespective
of
whether there was a suspension or restriction but further testified
that he never received any warning, document or account
to pay the
outstanding water tariffs.
[41]
After being shown the outstanding accounts for registered Koppies
farmers including him on pages 829 and 830 of File 4, Bundle
8, Index
5 which record reflected his account of R43 900,71, together with a
total amount R3,7m, he was asked when last did he
pay for water use
charges and he testified that he cannot remember. He conceded that in
terms of section 56 of NWA the tariffs
for water use charges are for
the funding of the Water Resources Management
("WRM'),
the
management of the Water Resources Development ("WRD") and
the use of water works. He further testified that the amount
shown to
be owed by him in respect of water use charges is out of heaven and
just takes farmers out of the State Water Scheme.
After he was told
that some farmers decided not to join the scheme when the new NWA
came into operation while some decided to sell
their water use rights
to De Beer mine, and that the tariff was calculated to determine what
was affordable to those remaining,
he conceded that the fewer they
remained on the scheme, the more the tariffs became expensive and
that the tariff was not implemented
to get rid of the farmers.
[42]
When asked why he did not pay his tariffs, he testified that water
was not supplied, this caused total damage to his lucerne
and the
tariff became too costly for him. He further testified that in the
past the tariffs were reasonable to pay and the increase
thereof made
most farmers to sell their water use rights.
[43]
After being referred to an internal document in Bundle 9, File 4,
page 1006 which is also found in Bundle 12, File 6, page
135 which
related to the notice of suspension of entitlement to the use of the
water, counsel for the defendant indicated that
he was not able to
locate the notice allegedly sent to the plaintiff. He conceded that
the plaintiff did not receive the notice.
[44]
The plaintiff was referred to an undated letter on page 1078 of the
same bundle and told that it was from some of the members
of WUA who
were part of the 2009 application, who withheld payment because they
also complained about the poor maintenance of the
canals. The letter
was addressed to the Director of the department. They stated their
willingness to pay certain amounts towards
their outstanding water
use charges in the form of representations to the department. He
did not take issue with the contents
thereof. He was also referred to
an acknowledgement of receipt of the request to pay off the
outstanding balances by a certain
Mr Pieterse and others on pages
62-64 of Bundle 12, File 6 and he testified that he was concerned
about the dates on the letters,
viz, 20 July 2007, it was too late
for anybody to do anything. The damage has been done at his farm. Why
did they not receive warnings
before the suspension of the water
supply?
[45]
He conceded that after what Mr Groenewald did, the water supply was
suspended in January 2005. Despite the letters written
by some
farmers offering to pay, Mr Blair only acknowledged receipt of the
letters. The water entitlement remained suspended since
then and his
water use charges remained outstanding.
[46]
After both parties had closed their cases and before the matter was
argued. on the merits, the plaintiff launched an application
in terms
of Rule 28(1) to amend his replication to include the following
paragraphs and to read:
"14.
Over and above what was pleaded before, it is pleaded that:
14.1
The suspension of the plaintiff’s water use entitlement was not
brought to the attention of the plaintiff as the defendant
did not
comply with the provisions of
section 54
and
2
STYLE="font-size: 11pt">59
of the
National Water
Act, 1998
.
14.2
The plaintiff therefore did not have knowledge of the facts giving
rise to the debt based on the suspension that occurred on
10 January
2005.
14.3
In terms of section 12 of the Prescription Act, 1969 (Act 68 of 1969)
the plaintiffs claim only prescribed three years after
the plaintiff
obtained knowledge of all the facts giving rise to the debt.
14.4
The plaintiff therefore prays that the special plea on this ground
must also be dismissed with costs."
[47]
Mr Saunders on behalf of the plaintiff submitted that the application
is launched to bring the plaintiff's replication in line
with the
evidence with regard to the water use suspension on 10 January 2005.
He also pointed out that according to the plaintiff's
evidence, he
only saw the document relating to the intention to suspend the water
use entitlement of the water users including
him on the morning of
the trial at his counsel's chambers. He argued that no prejudice was
suffered by the defendant as there was
no evidence before court to
counter the proposed amendment and that the plaintiff was tendering
costs for the amendment. Mr Saunders
further submitted that in
addition to the evidence, at the end of the cross-examination of the
plaintiff by the defendant's counsel,
concessions were made on behalf
of the defendant that the defendant cannot prove that the plaintiff
received the notice to suspend
the supply of his water use
entitlement to his property through the government water scheme. He
further pointed out that the amendment
goes to the special plea of
prescription regarding the fact that the plaintiff did not receive
the notice of suspension and does
not change the cause of action.
[48]
Mr Chabedi on behalf of the defendant objected to the proposed
amendment on the basis that the plaintiff did not lead any evidence
that supported the proposed amendment in that the fact that the water
supply suspension was only effected in January 2005 by the
officials
of the department, did not arise from the plaintiff's evidence as
alluded to by his counsel. It was pleaded in the defendant's
plea
which was amended in 2014 in response to paragraph 7 of the
plaintiff's particulars of claim. According to the plaintiff
the
water supply to his property stopped in 2003 and the defendant
disputed that and maintained that the suspension was only implemented
in 2005, so it was argued. He also referred to the supporting
affidavit of the plaintiff to the 2009 application, the discovered
internal document relating to suspension and submitted that the
replication has 12 paragraphs in which the plaintiff never led
evidence in relation thereto. He went on to argue that the
plaintiff's evidence and his particulars of claim give a different
cause of action and that the concession that he made that the
plaintiff did not receive the notice of suspension does not go to
the
cause of action but to the question whether the amendment does not
render the claim excipiable. It was also submitted that
the amendment
does not indicate which parts of the replication the plaintiff
intends to amend.
[49]
Mr Saunders in reply submitted that the notice of suspension of the
water supply although referred to in paragraph 12 of the
defendant's
plea, was not attached and neither was the discovered internal notice
attached.
[50]
A trial court may during the hearing of the matter, at any stage
before judgment, grant leave to amend any pleading or document
on
appropriate terms unless the amendment would render the pleading
excipiable. See Gollach & Gomperts(1967) (Pty) Ltd v Universal
Mills & Produce Co (Pty)
1978 (1) SA 914
(A) at 928D. The
plaintiff testified under cross-examination that he only saw the
internal document, addressed to the Acting Regional
Director: Free
State and relating to the suspension of the water supply in terms of
section 54(1) of the NWA, in the morning of
the day he was giving
evidence in court at his counsel's chambers. Counsel for the
defendant conceded that the defendant could
not prove that the
plaintiff received the notice of suspension of the water supply to
his property. The plaintiff admitted under
cross-examination that the
water usage supply to his property was suspended in January 2005
although in his particulars of claim
it was alleged that the water
use on his property was suspended in 2003. I agree that the fact that
the plaintiff's water use supply
was suspended in 2005 although
admitted by him under cross examination, was alleged in the
defendant's plea when she denied the
allegation by the plaintiff that
the water supply was suspended in 2003. It does not come from him.
Even though there is no evidence
to counter the proposed amendment,
it will, in my view, render the pleading excipiable. It is therefore
dismissed with costs.
[51]
The next issue to deal with is the special plea of prescription.
Counsel for the defendant argued that the plaintiff is claiming
damages suffered as a result of the suspension of the water supply to
his property during 2003. He served summons on the defendant
on 14
December 2010, seven years after his cause of action arose. He
conceded that he knew and was aware of the fact that there
was no
irrigation taking place on his property since 2003 and the years
immediately thereafter, so it was pointed out. It was submitted
that
the plaintiff knew as early as 2003 of the reason why he did not
receive water to his property, he knew the person responsible
for not
supplying water to his property and was also aware of the losses he
was suffering as damages as he was unable to irrigate
his crops which
he used to feed his dairy cows. It was also argued that the plaintiff
did not lead evidence to prove the averments
made in his replication
and did not explain the reasons why he waited for such a long time
before he issued summons to claim his
damages. It was pointed out
that the plaintiff and the other water users were able to bring an
application in 2009 to compel the
department to maintain the canals
and supply water but chose not to institute action to claim damages.
[52]
In his replication the plaintiff denied that his claim had
prescribed. It was argued on behalf of the plaintiff that he only
became aware that his water use entitlement was suspended in terms of
the NWA on the morning of 1 August 2016 when he first saw
that the
internal document relating to the suspension of the water supply that
was made to the Acting Regional Director: Free State.
Prescription on
this ground can only begin to run on 1 August 2016. The plaintiff
never received the invoices for the water use
charges to warn him
that the defendant may intend to terminate his water use
entitlements.
[53]
The issue for determination concerns the time at which prescription
commenced to run in respect of the plaintiff's claim for
damages
against the defendant. In terms of
section 11(d)
of the
Prescription
Act, this
claim is subject to a three year prescriptive period.
According to the special plea, summons was served on the defendant on
14
December 2010, seven years after the cause of action arose in
2003.
Section 12(1)
of the
Prescription Act provides
that
prescription shall commence to run as soon as the debt is due. It was
argued that in his evidence the plaintiff conceded that
he knew and
was aware that there was no irrigation taking place on his
property since 2003 and the years that followed immediately
thereafter, he knew as early as 2003 of the reason why he did not
receive water to his property, who was responsible for not supplying
water to his property and the losses he was suffering as damages as
he was unable to irrigate his crops which he used to feed his
dairy
cows. It was further argued that the plaintiff and the other water
users brought an application in 2009 to compel the defendant
to
maintain the canals and supply them with water but chose not to
institute an action to claim damages.
[54]
On the other hand the plaintiff's counsel submitted that the
maintenance of the canal constitutes a continuous wrong and the
continuous wrong only ceased when the defendant bought the water use
entitlement of the plaintiff on 6 October 2010. It was also
pointed
out that service of the summons on the defendant on 14 December 2010
fell within the time period before the date upon which
the
plaintiff's claim became prescribed. The difficulty that the
plaintiff has with this submission is that plaintiff's evidence
did
not support the allegations made in his replication (in particular
paragraphs 5, 7, 8, 9, 10, 11 and 12). No evidence was tendered
to
prove the allegations made in the aforesaid paragraphs.
[55]
It was also submitted that the fact that there were three reasons why
the plaintiff did not receive water on his property,
namely, the
failure by the defendant to maintain the canals which eventually
dilapidated and could no longer supply water, drought
during 2002 to
2005 and the suspension of the water supply without informing
the plaintiff and/or complying with the NWA,
is evident that the
plaintiff did not have actual knowledge as provided for in the
Prescription Act.
[56
]
Can it be said that the plaintiff did not have knowledge of the facts
giving rise to the debt based on the suspension of the water
supply
to his property in 2003 as alleged in his particulars of claim?
[57]
Section 12(3)
of the
Prescription Act provides
:
"A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from
which the debt
arises: Provided that
a
creditor shall
be
deemed to have such
knowledge if he could have acquired it through exercising reasonable
care."
[58]
It is well established in our law that knowledge is not confined to
the mental ·state of awareness of facts that is
produced by
personally witnessing or participating in events, or by being the
direct recipient of first-hand evidence about them.
It extends to a
conviction or belief that is engendered by or inferred from attendant
circumstances. On the other hand, mere suspicion
not amounting to a
conviction or belief justifiably inferred from attendant
circumstances does not amount to knowledge (compare
the judgment of
Watermeyer CJ in
R v Patz
1946 AD 845
at 857, applied in the
context of prescription by Vos AJ in
Patterson v Minister van
Bantoe-administrasie en Ontwikkeling
1974 (3) SA 684
(C) at
687A-B).
[59]
Cameron JA and Brand JA said the following, in
Minister of Finance
and Others v
Gore
NO
2007 (1) SA 111
, in relation to the
nature of
'knowledge'
that is required to trigger the running
of prescription time:
"Mere
opinion or supposition
is
not enough: there must
be justified, true belief. Belief, on its own,
is
insufficient. For
there to be knowledge, the belief must be justified."
[60]
The plaintiff conceded under cross examination that he knew as early
as 2004 that he was not getting water, could not grow
the lucerne and
was therefore suffering damages. He also conceded that the members of
WUA including him, did not pay their water
use charges, were in
arrears in 2005 and that he was obliged to pay for his water use
charges irrespective of whether there was
a suspension or
restriction.
[61]
He was one of the applicants in an application launched by the water
users to force the defendant to maintain the canal and
supply water
in 2009 but did not sue for damages although he was aware at the time
that he suffered damages as a result of not
being able to irrigate
his crops.
[62]
I accept that there were three reasons at the time why the plaintiff
was not receiving water to his property, namely, the drought
that
took place between 2002 and 2005, the dilapidation of the canal to
such an extent that the water did not reach its destination
due to
lack of maintenance and the suspension of the water supply to the
plaintiffs property by the officials of the department.
It is
clear from the pleadings and the evidence that the suspension of the
water supply on the plaintiff's property took
place because of the
failure by the plaintiff and other water users to pay their water use
charges which payments the plaintiff
conceded were meant among others
for the maintenance of the canal. The plaintiff could not tell in his
evidence under cross-examination
as to when last did he submit an
application for the supply of water to his property. He did not pay
for his water use charges
and the reason that he gave was that he did
not receive the account. There is no evidence that he went to inquire
as to why he
was not receiving his account, yet he knew that he was
obliged to pay irrespective of the restrictions or the suspension of
the
water supply.
[63]
He was not receiving water. In my view he anticipated that if he does
not pay the water use charges, the water supply to his
property would
be suspended for as long as he did not comply. The notice of
suspension would only confirm what he knew or ought
to have
reasonably known. It would not change the fact that he knew he was
not paying his water use charges as he was obliged in
terms of the
NWA. It would also not change the fact that he knew or ought to have
known that if he did not pay for his water use
charges, the supply
thereof would be suspended. In view of the concessions made by the
plaintiff under cross-examination referred
to above, the fact that he
was not served with a notice of suspension of the water supply to his
property by the defendant or the
officials of the department is not
of his assistance. He knew or ought to have reasonably known as early
as 2004/2005 as to why
he did not receive water on his property, who
was responsible, he was aware of the losses he was suffering as
damages as he was
unable to irrigate his crops, which he used to feed
his dairy cows. Further to this at the time the application, for a
mandamus
to compel the defendant to do maintenance on the canal
systems and supply them with water, by the plaintiff and the other
water
users, was launched in 2009, he knew or ought to have
reasonably known that the water supply to his property was suspended,
who
was responsible and that he was not irrigating his crops because
he did not receive water on his property but chose not to sue for
damages.
[64]
For a debt to be
'due'
for the purposes of the
Prescription
Act, it
has to be a debt that is immediately claimable by the debtor
or, stated in another way there has to be a debt in respect of which
the debtor is under an obligation to perform immediately. See
The
Master v IL Back and
Co
Ltd and Others
1983 (1) SA
986
{A) 1004, read with
Benson and Others v Walters and Others
1984 (1) SA 73
{A) 82. It follows that prescription cannot begin
to run against a creditor before his cause of action is fully
accrued; i.e.,
before he is able to pursue his claim {cf
Van
Vuuren v Boshoff
1964 (1) SA 395
{T) 401). See also
De Loitte
Haskins
&
Sells Consultants (Pty) Ltd v Bowthorpe
Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525.
[65]
The term
'debt due'
means a debt, including a delictual debt,
which is owing and payable. A debt is due in this sense when the
creditor acquires a complete
cause of action for the recovery of the
debt, that is, when the entire set of facts which the creditor must
prove in order to succeed
with his or her claim against the debtor is
in place or, in other words, when everything has happened which would
entitle the creditor
to institute and to pursue his or her claim. See
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA). In
Truter
and Another v Deysel
the court held that the cause of action is
complete as soon as the creditor sustains some harm; knowledge of
fault or unlawfulness
is not required.
[66]
The plaintiff knew as early as 2004 that he was not receiving water,
could not grow his crops and was therefore suffering damages.
Prescription accordingly commenced to run as soon as he sustained the
harm and had all the facts to complete his cause of action
for the
recovery of the debt.
[67]
The claim by the plaintiff has therefore prescribed and falls to be
dismissed with costs.
[68]
Counsel for the defendant prayed for costs including costs of two
counsels on the basis of the volume of work done in the matter
and
counsel for the plaintiff objected. In my view the matter was quite
involved and it is only fair to allow costs which include
the costs
of two counsels.
[69]
In the result I make the following order:
69.1The plaintiff's claim is dismissed
with costs which includes the costs of two counsels.
________________
M
J TEFFO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
FOR
THE PLAINTIFF J H A SAUNDERS
INSTRUCTED
BY POTGIETER, PENZHORN & TAUTE
FOR
THE DEFENDANT M P D CHABEDI AND A THOMPSON
INSTRUCTED
BY STATE ATTORNEY PRETORIA
DATE
OF JUDGMENT APRIL 2017