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[2008] ZAWCHC 333
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Low NO and Others v South African National Parks and Another (16144/2007) [2008] ZAWCHC 333 (12 December 2008)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of
South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 16144 / 2007
In
the matter between:
WILLIAM
WALLACE LOW
N.O.
First
Applicant
JONATHAN
WILLIAM TREVOR MORT N.O.
Second
Applicant
LANCELOT
PETER LIDDELL
N.O.
Third
Applicant
PONTIUS
TRADING 22 (PTY) LIMITED
Fourth
Applicant
and
SOUTH AFRICAN NATIONAL
PARKS
First
Respondent
MINISTER OF WATER AFFAIRS AND
FORESTRY
Second
Respondent
JUDGMENT DELIVERED ON 12
DECEMBER 2008
BOZALEK,
J:
[1]
First to third applicants herein are the executors of the estate of
the late Geoffrey Vincent Hare (also referred to as “the
deceased”) who, in his lifetime, owned the property “Klein
Welgemeend” in Lakeside, Cape Town (“the property”).
At the time this application was launched the executors had agreed to
sell the property to fourth applicant and by the time of
hearing,
ownership had been transferred to it.
[2]
The underlying source of the dispute in this matter relates to a
praedial water servitude in favour of the property, a residential
erf
in the suburb of Lakeside in the South Peninsula, situated on the
slopes of the Muizenberge, directly below Boyes Drive.
[3]
The relief sought by the applicants consists of four declaratory
orders relating to the rights of the applicants, (and their
predecessor-in-title, the late Mr. Hare), in their respective
capacities as owners or putative owner of the property, to use the
water from two servitude springs situated on a neighbouring property.
That property forms part of the Table Mountain National Park
and is
under the control of first respondent, the South African National
Parks. Second respondent, the Minister of Water Affairs
and Forestry,
is cited by reason of his responsibility,
inter
alia
, for the
administration of the
National Water Act, 36 of 1998
. The application
was opposed by first respondent but second respondent abides the
result.
[4]
Prayer 1 of the declaratory relief reads as follow:
“
Declaring
that the use by the late Geoffrey Vincent Hare, in his capacity as
the owner of the property referred to as remainder
of erf […],
Cape Town (“the dominant tenement”), of the water supply
from two servitude springs situated
on erf […], Cape Town…
(the servient tenement”) as referred to in the servitude
registered against the title
deed of the dominant tenement…
and the servient tenement… constituted an “existing
lawful water use”
as defined in s 32(1) of the National Water
Act 36 of 1998 (“the Water Act”) as at the commencement
date of the Water
Act.”
[5]
The second prayer seeks a declaration that the late Mr Hare was
entitled, from the commencement date of the
National Water Act, to
use the water supply without a licence and to continue with the said
existing lawful water use. The third prayer seeks a declaration
in
similar terms in relation to first to third applicants in their
capacities as executors of the deceased estate and, in the case
of
fourth applicant, upon it becoming owner of the property. The fourth
prayer seeks a declaration that the applicants are not
precluded by
virtue of the Regulations to the National Environmental Management:
Protected Areas Act, 57 of 1993, from repairing
and restoring the
infrastructure of the servitude and from making use thereof and that
they might do so without requiring the written
permission of first
respondent or conducting an environmental impact assessment. Finally,
the fifth prayer seeks mandatory relief
directing first respondent to
afford the applicants access to the servient tenement for the purpose
of…
“
cleaning
the servitude springs, streams and intakes referred to in the said
title deed, keeping the same in good order and condition,
and/or
repairing and maintaining the pipelines referred to therein in good
order and condition and replacing any of the aforesaid
pipelines when
and where necessary, and permitting the applicants to carry out any
of the aforegoing activities on the said property”
.
[6]
This matter was fully argued on 8 and 9 September 2008 when judgment
was reserved. However, besides its substantive defences,
first
respondent also raised a non-joinder point, contending, for the first
time in its heads of argument, that the City of Cape
Town (“the
City”), as the owner of the servient tenement, should have been
joined as a respondent. I handed down a
judgment ordering the
applicants to deliver a full set of the papers to the City and to
ascertain from it whether it was prepared
to file a consent to be
bound by the judgment of this Court notwithstanding that it had not
been cited as a party in the matter.
I ordered, further, that
judgment would stand over pending the taking of such steps and that,
should such consent be filed within
a six week period, judgment would
be delivered without hearing any further argument.
[7]
By agreement between the parties the six week period was extended to
21 November 2008. Shortly before that date, the City served
and filed
a notice of intention to abide wherein it stated that it abided the
decision of the Court provided that no costs order
was sought against
it. An affidavit by the manager of the City’s Property Services
department was filed confirming background
information furnished by
the applicants and giving the correct description of the servient
tenement, namely, erf […], Cape
Town, Division Cape, Province
of the Western Cape. Also attached was an authority on behalf of the
City to abide the Court’s
decision signed by its Director of
Legal Services. In the circumstances, the way has been cleared for
the Court to deliver its
judgment herein without any further ado.
BACKGROUND
[8]
The great majority of the facts relevant to this matter are common
cause. The dominant tenement and the servient tenement were
once part
of a single erf which was consolidated in 1948. By that year there
was a system of pipelines on the consolidated erf
which conveyed the
water from the springs on the mountainside to a reservoir situated
behind the house on the lower slopes of what
became the dominant
tenement, a residential property better known as “Klein
Welgemeend”. The springs are situated just
below a rocky
outcrop on the mountainside which is the site of a disused quarry.
[9]
In 1961 the consolidated erf was split into the two current portions
when a public road, Boyes Drive, was extended through the
middle of
the property. The upper section was transferred to the Cape Town
municipality. A servitude was registered over this section,
the
servient tenement, in favour of the owner of the property i.e. the
lower section, and its successors in title entitling the
owner to
“the free and undisturbed use in perpetuity of the water from
two servitude springs”.
[10]
The relevant portions of the servitude reads in full as follow:
“
1. ALRA
ESTATE (PROPRIETARY) LIMITED and its successors in title as owner of
the remaining extent of the consolidated Lot No. 184
of the farm
Weltevreden, situate as aforesaid, measuring as such remaining extent
Two decimal Nought Six Six Five (2.0665) Morgen,
shall be entitled to
the free and undisturbed use and enjoyment in perpetuity of the water
from two servitude springs situated
on the aforesaid Portion 1 of the
said consolidated Lot No. 184, hereby transferred, and which said two
springs are marked Spring
A and Spring B on the aforesaid diagram No.
5786/60 of the said Portion 1, hereto annexed, and which aforesaid
water flows and/or
is conveyed from the said springs to the said
remaining extent and the tanks thereon in the following manner: -
The water from
Spring A flows by means of a servitude stream along the line a b c d
shown in blue on the aforesaid diagram to Intake
A so marked on the
said diagram and from Intake A the water is conveyed by means of a
servitude pipe line to point j, which pipeline
is marked e f g j on
the said diagram.
The water from
Spring B is conveyed by means of a servitude pipe line to point j,
which pipe line is marked in blue h j on the said
diagram. From point
j, where the said two pipe lines meet, the water is conveyed along a
servitude pipe line marked j k in blue
on the said diagram to Intake
B, so marked on the said diagram, and from Intake B aforesaid the
water is conveyed by means of a
servitude pipe line to the said
remaining extent and to the aforesaid tanks on the said remaining
extent and which pipe line is
marked l m in blue on the said diagram.
2.
The
said Company and its successors in title as owner of the remaining
extent aforesaid, in order to exercise effective and proper
use and
enjoyment of the water as aforesaid, shall at all times have the
right of access to the said Portion 1 hereby transferred
for the
purpose of cleaning the said springs and the said streams and Intakes
and keeping them in good order and condition and/or
for the purpose
of repairing and maintaining the aforesaid pipe lines in good order
and condition and replacing any of the aforesaid
pipe lines when and
where necessary.
3.
The
owner of the said Portion 1 or its successors in title shall not
permit and/or allow any person to interfere with the use and
enjoyment of the water as aforesaid by the said ALRA ESTATE
(PROPRIETARY) LIMITED or its successors in title as owner of the said
remaining extent.
[11]
From the wording of the servitude it appears that by 1961 the run-off
water was being stored in tanks on the property. Up to
January 2005
the servitude infrastructure as described in the title deeds was in
place on the servient tenement and was maintained
in working order.
[12]
Although the servient tenement belongs to the City of Cape Town it
now falls within the area of the Table Mountain National
Park and is
administered as part of that National Park by first respondent in its
capacity as the long term lessee of that land.
This has been the
position since approximately 1995.
[13]
In January 2005 a fire advanced through the National Park, including
the servient tenement, and destroyed the pipes forming
part of the
servitude infrastructure. The pipes were made of a PVC material
incapable of withstanding the intense heat of a veld
fire. By this
time, however, the deceased was extremely ill and was continually
being hospitalised. His illness rendered him unable
to manage his
affairs properly, one aspect of which was attending to replace the
damaged water pipes. The deceased passed away
in July 2005. Shortly
thereafter, third applicant, in the performance of his duties as one
of the executors of the deceased’s
estate, turned his attention
to instituting an insurance claim in respect of the destroyed piping
and, in September 2005, to reconstructing
the infrastructure of the
servitude on the servient tenement. Before the new pipes could be
installed, a ranger from the National
Park arrived and stopped the
work. Despite sending copies of the servitude and title deeds to
first respondent, the third applicant
was told that his work team
would be arrested if it continued with the work.
[14]
Notwithstanding an extensive engagement between the applicants and
first respondent since then, in the form of meetings and
correspondence, the impasse reached in September 2005 has continued
up until present. In effect the dominant tenement has not enjoyed
its
claimed servitudal rights for more than four years.
THE
ISSUES IN DISPUTE
[15]
All of the above is common cause. What then are the issues between
the parties? In its opposing affidavit first respondent
raised four
defences. Firstly, it contends that the extent of the applicants’
existing lawful water use depends upon the
manner in which, and
purpose for which, the applicants’ predecessor in title in fact
used the water from the two springs
during the two years prior to the
commencement of the
National Water Act on
1 October 1998. In this
regard, first respondent states that despite requesting the
applicants to make information at their disposal
available to assist
it in establishing the extent of the applicants’ purported
water use, the latter had failed to do so.
First respondent’s
reliance on this defence can be traced back to correspondence between
first respondent’s erstwhile
legal advisor and third applicant
and/or his legal representative. I shall revert to this
correspondence in due course.
[16]
The second defence raised is that the applicants’ existing
lawful water use is limited to the extent which was authorised
by the
servitude under consideration and, more specifically, to the capacity
of the infrastructure which was in place in 1961.
More specifically,
first respondent contends that the applicants are limited to the
utilisation of three storage tanks on the property
with a capacity of
±5000 litres each and piping on the servient tenement
measuring 30 and not 50 millimetres in diameter,
the latter being the
size of the piping sought to be installed by the applicants.
[17]
The third defence raised is that the applicants must exercise any
servitude which they have, reasonably, this necessarily entailing
that first respondent’s “
expert
advice and assistance should be obtained before these rights may be
exercised
”.
[18]
The fourth defence put up by first respondent was that before the
applicants could replace or upgrade the pipeline it was necessary,
in
terms of applicable legislation, to prepare an environmental
assessment report. This defence was abandoned in first respondent’s
heads of argument and need be considered no further.
THE
VARIOUS DEFENCES CONSIDERED
[19]
When the merits of the first and second defences were argued, first
respondent’s main contention was that in order to
obtain the
declaratory relief sought in the first to third prayers, it was
incumbent upon the applicants to prove the exact physical
extent of
the late Mr Hare’s use of water from the springs for the period
10 October 1996 to 30 September 1998 i.e. the two
years period prior
to the commencement of the new Water Act.
[20]
First respondent submitted that not only would the applicants have to
prove the physical extent of the use during the two year
period, but
would also have to show, if not the amount of water taken through the
servitudal infrastructure in 1961, then at the
least the capacity of
the infrastructure to take off water at that time. This, counsel
argued, was a consequence of the fact that
whatever volume of water
the applicants were able to prove was enjoyed during the two-year
period prior to the relevant date in
1998 could not exceed what was,
or could have been, received in 1961 when the servitude was first
registered. To use a hydrological
metaphor, first respondent’s
case is that the amount of water which could have been taken by the
dominant property in 1961
was the high watermark of what the
applicants were entitled to at present, notwithstanding their present
claim for a right to enjoy
all the water emanating from the two
springs.
[21]
Needless to say, given the nature of the servitude, to require the
applicants to prove water consumption or capacity figures
going back
nearly 50 years and some 10 years respectively, creates an
onus
which they would find very difficult, if not impossible, to
discharge. In my view, the submission by first respondent that the
applicants attracted such an onus rests on misconceptions both as to
the nature of the dispute between the parties, as it evolved,
and of
the relevant provisions of the
National Water Act.
[22
]
As far as the first misconception is concerned, regard must be had to
the terms of the correspondence between the parties in order
to
establish the true nature of the dispute between them before this
application was commenced. This reveals that when the applicants
contended that they were entitled to use “
all
the water
”
from
the springs, this was in the context of responding to first
respondent’s legal representative’s suggestion that
the
owner had no entitlement to lead water, “
superfluous
”
to its reasonable gardening and
domestic needs and that, as a result, measures had to be adopted “
to
ensure a minimum flow of water remains in the system and to prevent
superfluous water being led from the springs
”
.
[23]
First respondent thus sought to limit the extent of the applicants’
right to lead off water to what was reasonably necessary
for
gardening and domestic purposes. The applicants, however, saw no
reason why any such limitation should be imposed. The contention
by
the applicants that the servitudal infrastructure took “
all
the water
”
must
thus be read in this context. It means no more than that there was no
inherent limitation on the applicants’ rights other
than the
capacity of the servitude infrastructure itself. On the applicants’
approach there is, for example, no justification
for a flow control
or any similar device to be installed at or below the springs.
[24]
In my view, having regard to the true nature of the dispute between
the parties, and the terms of the
National Water Act, there
was no
need on the part of the applicants to establish exactly how much
water was taken from the springs in 1961 or between 1996
and 1998.
Both prevailing hydrological conditions and the actual amount of
water taken at or over the relevant times would be irrelevant
to the
relief sought by the applicants. This appears to be borne out both by
the wording of the servitude and by the terms of the
relevant
provisions of the
National Water Act and
informed commentary on how
an existing lawful water use must be proved.
[25]
It is common cause that the applicants’ rights to use water are
now regulated by and in accordance with the
National Water Act.
Section
22(1) of the Act, entitled “Permissible water use”,
provides as follow:
1. A person may
only use water -
(a)
without
a license –
(i)
if
that water use is permissible under Schedule 1;
(ii)
if
that water use is permissible as a continuation of an existing lawful
use; or
(iii)
…”
.
The
applicants contend the water use in issue is permissible under
subsection 1(a)(ii) as a continuation of an existing lawful use.
[26]
“
Water
use
”
, for the
purposes of the Act, includes taking water from a water resource,
storing water and impeding or diverting the flow of
water in a water
course (s 21). A water resource is defined as including a
watercourse, which is in turn defined as including a
river or spring.
[27]
S 32 of the Act goes on to define the concept of “
existing
lawful water use
”
as
follows:
“
1. An
existing lawful water use means a water use -
(a) which has
taken place at any time during a period of two years immediately
before the date of commencement of this Act and which
–
(i) was
authorised by or under any law which was in force immediately before
the date of commencement of this Act
(II) …”
.
[28]
S 34, entitled “
Authority
to continue with existing lawful water use
”
,
provides as follows:
“
(1): A
person, or that person’s successor in title, may continue with
an existing lawful water use, subject to –
(a)
any
existing conditions or obligations attaching to that use;
(b)
its
replacement by a license in terms of this Act; or
(c)
any
other limitation or prohibition by or under this Act.”
[29]
According to the applicants, and as is confirmed by a diagrammatic
representation of the servitude which forms part of the
title deed,
the water course and servitudal infrastructure consists of two
springs, springs, A and B, flowing by stream and/or
pipeline to their
respective intakes, A and B, converging at intake B and flowing, in a
single pipeline, down the mountain side
and under Boyes Drive into an
unspecified number of tanks on the dominant tenement.
[30]
It is not in dispute that, assuming the presence and consistent
operation of the lawful servitude infrastructure as described
above
on the servient tenement during the two years prior to 1 October
1998, this constituted a “
water
use
”
as
envisaged by the Act.
[31]
The presence and consistent operation of the infrastructure during
the two-year period is established,
inter
alia
, through the evidence
of the third applicant, a lifelong friend of the late Mr Hare, who
visited the property regularly from 1978
to 2005, the period when it
was owned by the deceased. Third applicant was also a co-director of
a construction company through
which the maintenance work required on
the property, including maintenance and repair of the servitudal
infrastructure, was done.
Further evidence relied on was that of the
late Mr. Hare’s gardener and housekeeper as well as certain
correspondence the
former had written during his lifetime concerning
the servitude and its infrastructure. Collectively, this evidence
clearly established
that, throughout the late Mr Hare’s
ownership of the property, including the relevant two year period
over 1996 to 1998,
the servitudal infrastructure and water source was
in operation, diverting the water from the springs into the pipelines
and onto
the property. There were a few occasions when the
infrastructure was damaged or clogged as a result of a veld fires but
it was
repaired soon afterwards. The system provided a constant
supply of spring water to the tanks on the property, albeit that
there
was less water when the weather was dry, and the garden was
watered from the tanks throughout the year. On the face of it then,
the late Mr. Hare used the water from the servitude springs and,
furthermore, this constituted an “existing lawful water
use”
as defined in s 32(1) of the Act as at its commencement date.
[32]
The first significant point of difference between the parties, as
alluded to earlier, was the suggestion by first respondent
that the
applicants were required to prove the exact extent of their use of
the water over the two year period. This argument in
my view rests
upon two misconceptions, the first of which was the parties’
differing perceptions of what the applicants meant
when they
contended, prior to the institution of the application, that they
were entitled to “all the water” emanating
from the
springs. I am satisfied that the applicants intended to convey no
more than that, apart from the inherent limitation on
the amount of
water which they could take by reason of the nature and capacity of
the servitudal infrastructure, they were entitled
in law to whatever
water such infrastructure could and did carry to the dominant
property. Put differently, it was not open to
first respondent or,
for that matter, the City of Cape Town, to place any restriction on
the servitudal infrastructure, such as
a flow limiting device, for
any reason whatsoever. My reasons for this conclusion are that in the
first place the terms of the
servitude express no limitation,
explicit or implicit, on the dominant property’s right to the
flow of water. The phrase
“
of
the water from two servitude springs
”
in
clause 1 of the servitude can, in my view, in the circumstances, only
bear the meaning of all the water that could be accepted
by the
infrastructure.
[33]
The further misconception on the part of first respondent is that, in
terms of the Act, it was incumbent upon the applicants
to prove
how many kiloliters of water were received by the property over the
relevant two year period. In the circumstances of
this matter no such
meaning, or equivalent meaning, is possible. S 32(1) refers, in
general terms to a water use “
which
has taken place at any time during a period of two years immediately
before
”
the
commencement of the Act. In,
Water
Law – A Practical Approach to Resource Management and the
Provision of Services,
by
Thompson, published by Juta, at page 502, the author comments as
follows on proof of the extent of an actual water use:
“
If an
actual water use that took place during the qualifying period
exceeded the extent of the use that was authorised by or under
the
law which was in force immediately before the date of commencement of
the NWA, the existing lawful use would only be that portion
that was
authorised or allowed by law.”
In
the present matter, however, on a proper interpretation of the
servitude, the only limitation on the amount of water which could
be
taken from spring was the nature or capacity of the servitudal
infrastructure. Subject to disputes about those aspects, the
late Mr.
Hare, during his lifetime, and now the applicants, are entitled to
take all the water which such infrastructure can carry.
To illustrate
this proposition one may have regard to the possibility that in 1961
very dry conditions prevailed in Cape Town with
the result that the
servitude springs only delivered a very limited amount of water to
the dominant property. It could hardly be
said that such volume of
water then established the limit of what the owners of the dominant
property could thereafter draw from
the springs.
[34]
Thompson, at page 505
et sequor
, in discussing the extent of
an existing lawful water use, is not always entirely clear in this
regard. He states at one point
(page 505):
“
The
extent of an existing lawful water use is not the use that could have
taken place lawfully in terms of the water laws which
were in force
when the NWA commenced. The extent is only that part that actually
took place lawfully during the qualifying period.
The part that did
not take place, or if it did take place, if it did not take place
lawfully, could not be an existing lawful water
use
.”
To
the extent that this statement suggests an approach whereby the
applicants, post-1998, would be limited to the volume of water
which
was actually (lawfully) enjoyed by the late Mr. Hare during the
relevant two year period, notwithstanding, for example, that
drought
conditions may have reduced the supply to negligible proportions, I
disagree.
[35]
However, the author clarifies this aspect somewhat immediately
thereafter and on the following page when discussing the effect
of
hydrological conditions prevailing during the qualifying period.
Where these were such as to have provided a limitation on the
water
which could lawfully have been taken during the qualifying period,
this would not limit the right-holder’s right to
take greater
amounts at a later stage provided that the intention of the person
using the water during the qualifying period was
not to limit
him/herself to the lesser amount. In this regard the author writes:
“
The
extent is not the actual, maximum, minimum or average rate of water
abstracted, volume of water stored, rate of flow diverted
or quantity
or quality of waste discharged during the period. The extent is also
not nil if no water or waste was abstracted, diverted
or discharged
during the period…… The extent of an existing lawful
water use should be determined by asking whether
and how the water
use would have been undertaken during the qualifying period, if
certain hydrological conditions prevailed during
the qualifying
period. If the person would have undertaken the water use, the manner
in which the water use would have been undertaken
should be part of
the existing lawful water use. If the water use would not have been
undertaken, it should not be part of the
existing water use.”
[36]
In the present matter both parties sought to rely on the approach
adopted by Van Heerden J (as she then was) in the matter
of
Starke
N.O. v Schreiber
2001 (1)
All SA 167
(C), a case which dealt
inter
alia
with the question of
whether the provisions of the Act affected the right of an owner of a
registered servitude to prohibit unauthorised
use of water from a
public river. Discussing whether the applicants had established a
“clear right” for the purposes
of interdictory relief
sought, the Court considered the parties’ respective rights to
use certain river water following the
enactment of the new Act. The
learned judge held that the parties’ respective rights to use
the water had to be determined
by reference to the concept of
“
existing
lawful water use
, as
contained in the Act and is defined in s 32(1)”. At page 184B
the Court stated:
“
The
extent of this existing lawful water use depends on the manner in
which, and the purposes for which, the applicants in fact
used the
water in the Bushmans River during the period of two years prior to
the date of commencement of the Act. It is not in
dispute that the
applicants use of the water in the river during the said period was
indeed ‘authorised by or under any law
which was in force
immediately before the date of commencement of the Act.’ It is,
however, neither necessary nor possible,
for purposes of the present
proceedings, to determine the exact nature or extent of the
applicants’ existing lawful water
use.
Suffice it to
say that, at present, the applicants remain entitled, notwithstanding
the provisions of the Act, to continue using
the water flowing in the
Bushmans River above the S-Drift to the same extent, in the same
manner, and subject to the same seasonal
variations, as they actually
used such water during the two year period preceding 1 October
1998…”
.
[37]
The Court’s remarks about the applicants’ present
entitlement to water were
obiter
dicta
, in that it
eventually granted the relief sought, not by reference to the extent
of the applicants’ rights to use water,
but on the basis of
their right to enforce the restrictive conditions imposed upon the
respondents in the title deeds. Apart from
the non-binding nature of
these remarks, I find myself unable, from the passage cited above, to
determine with any certainty whether
or not the learned judge was
indicating that historical levels of water use over the relevant two
year period would establish the
ceiling of later lawful water use by
the applicants. I would have difficulty with such a proposition given
that prevailing climatic
conditions might have rendered that ceiling
arbitrary or unrealistic. What is clear from the learned judge’s
approach, however,
is that users of water in terms of an “existing
lawful water use” are entitled to no less water than that which
they
enjoyed over the two year period prior to the introduction of
the
National Water Act.
[38
]
Applying this approach to the undisputed facts of the present case,
it is firstly clear that, as a general rule, the springs flowed
and
delivered a plentiful supply of water to the property over the
relevant two year period. There was no water flow device or
other
self-limiting mechanism in operation. The property would thus have
received all the water which the servitudal infrastructure
could have
carried from the servient tenement. Certainly there is no evidence
pointing to any other conclusion. Restoration of
the infrastructure,
the core relief which the applicants seek, will mean no more than
whatever water was so diverted in the past
will now again be so
diverted. If the system can divert and convey virtually all the water
from the springs, as is the applicants’
case, that will
continue. By the same token, any water that might previously have
overflowed from the intakes, owing to the nature
of the
infrastructure, will again overflow. The prior existing water use,
whatever its precise volume may have been from time to
time, will
accordingly be fully restored. It is both unrealistic, and in my
view, unnecessary, in the circumstances of this case,
to require the
applicants to prove, either directly or indirectly, the physical
extent of the use of water over the relevant two
year period.
[39]
The related defence raised by first respondent was that the
applicants’ existing lawful water use is limited to only
that
quantity authorised by the servitude in question and, more
specifically, that the applicants’ rights are limited to
the
utilisation of the infrastructure that was in place in 1961 which
amounted to three storage tanks on the property with a capacity
of
±5000 litres each. The suggestion on behalf of first
respondent appears to be that the applicants are therefore limited
to
tanks of this capacity and are not entitled to utilise a new tank or
tanks situated on the property to store the water received
from the
pipes. The second leg of this defence is based on evidence in the
first respondents’ opposing affidavits suggesting
that the
pipeline in 1961 and 1998 measured no more than 30 mm in diameter. On
this basis, it is suggested, the applicants were
not entitled to
install 50 millimetre piping in place of the destroyed pipe, as was
their intention.
[40]
It should be noted that, in the period leading up to the bringing of
the application, first respondent’s representatives
did not
suggest that the proposed infrastructure replacement would not be in
accordance with the position as it was in 1961. Third
applicant
stated in his affidavit that he pointed out the exact nature of the
proposed remedial work to first respondent’s
representative at
an on-site inspection. This is not denied. One would expect that had
there been a concern on first respondent’s
part that the
applicants were overreaching the servitude, this would have been
raised in correspondence and clear evidence to this
effect put up.
But in any event these challenges are, in my view, without substance.
As regards the water storage tanks there is
no clear evidence at all
of what water storage tanks stood on the dominant property in 1961.
It could very well have been the tanks
which remain there to this
day. The applicants put before court an original photograph,
apparently taken in the 1940’s or
the 1950’s, indicating
that there were at least four tanks, notwithstanding first
respondent’s representative’s
reference to three tanks
containing approximately ±5000 litres each. There is also
evidence from the applicants of another
wooden tank lower down on the
property.
[41]
Furthermore, although “
tanks
”
are referred to in the servitude they
do not strictly form part of the infrastructure in the sense of
defining or limiting the extent
of the servitude. The terms of the
servitude are clear and express no physical limitation to the amount
of water, or even the purpose
for which, water can be taken from the
servient tenement. The essence of a servitude is that it confers “
a
real right to an advantage out of the property of another”
Dreyer v Letterstedt’s
Executors
(1965) 5 Searle 88
at 99
.
The essence of the present servitude is the right to take and convey
water off the servient tenement. It does so by permitting
the
continued presence of pipes and other infrastructure on the servient
tenement, and by permitting the dominant owner to enter
onto that
tenement for the purpose of maintenance and repair of the system.
Whether the water so led off is stored on the dominant
owner’s
property, how it is stored, or whether it is simply allowed to run
away, are matters that do not impact in any way
on the rights or
obligations of the owner of the servient tenement and are therefore
matters of no consequence to it in law. As
was contended by Mr.
Janisch for the applicants, the exercise of trying to determine
whether the current storage capacity of the
tanks on the property
exceeds that which existed in 1961 is futile, quite apart from the
fact that it is irrelevant.
[42]
With regard to the diameter of the pipes, first respondent’s
Mr. Bell contends that in former years the infrastructure
appears to
have comprised a 30mm diameter pipe and not the 50mm diameter pipe
which the applicants propose to install. This conclusion
appears to
be based upon Mr. Bell’s finding of a 30mm internal diameter
pipe outside the fire-affected area on the servient
tenement which he
duly photographed. In reply, however, third applicant, supported by
numerous photographs, demonstrates that all
of the damaged pipes
which are still to be found on the servient tenement are of 50
millimetre diameter. They comprise not only
the original steel pipe
which comprised the original servitudal infrastructure but also the
plastic pipes which replaced the steel
pipes. Some remnant pipes in
the vicinity of the springs and the inlets are even larger than 50 mm
in diameter. Third applicant
was able to find no evidence from the
springs down to Boyes Drive of piping, of whatever substance, smaller
than 50mm in diameter.
He explains that the 30mm internal diameter
pipe found by Mr. Bell runs under Boyes Drive and was installed some
10 years ago.
That pipe, a 30mm internal diameter pressure pipe
running through a concrete sleeve of 150mm diameter installed under
Boyes Drive,
was not damaged in the fire and the applicants do not
seek to replace it.
[43]
In the circumstances I consider that the applicants have established,
to the Court’s satisfaction, that at all material
times the
piping component of the servitudal infrastructure on the servient
property was not less than 50mm in diameter and may
thus be replaced
by piping of equivalent diameter.
[44]
This does not completely dispose of first respondent’s second
defence, however. Mr. Van Staden, on behalf of third respondent,
referred to a 1948 surveyor’s diagram indicating a third spring
and raised the question of where this fitted into the servitudal
infrastructure. In similar vein he submitted that there was confusion
as to whether the infrastructure comprised two intakes, as
described
in the servitude and the servitude diagram, or whether this
infrastructure had been extended by the applicants without
appropriate authorisation. This alleged uncertainty was largely based
on a letter sent by the applicants’ legal representative
prior
to the institution of the application, dated 18 January 2006,
referring to “
two
weirs
”
which
would have to be repaired and “
one
collector sump which receives water from the two weirs
”
.
[45]
As far as the third spring is concerned, the only reference thereto
was an imprecise representation on the surveyor’s
diagram
dating back to 1948 and a reference, in a letter by the late Mr. Hare
to the City in 1983, to the existence of three springs.
As was
contended by applicants’ counsel, Mr. Janisch, there was
certainly no evidence, nor for that matter any allegation
in the
papers, of any current, unlawful use of water by the applicants from
a third spring. Nor did the deceased in the letter
in question state
that he used the water from the third spring. Mr. Janisch pointed
out, moreover, that first respondent’s
representatives did in
fact conduct on-site inspections of the servitudal infrastructure but
put up no evidence that it differed
from that described in the
servitude. Furthermore, in first respondent’s own expert
report, drawn up by a Mr. Du Plessis,
who also conducted a site
inspection, there is a reference to two inlet structures having been
identified, the location of which
corresponds with the description of
the servitude. Photographs of these inlet structures appear in
the report. In the circumstances
I am satisfied that nothing can be
made of this issue and that the evidence clearly establishes that
there is in effect no real
dispute about the servitudal
infrastructure.
[46]
The final defence raised by first respondent is that the applicants
were required to exercise whatever servitudal rights they
possessed,
reasonably, the implication being that the applicants had not done so
or did not intend to do so. In this regard first
respondent
emphasises that the spring are situated in a sensitive area of a
National Park and that the repair and replacing of
pipes and other
infrastructure cannot take place without the involvement of first
respondent.
[47]
It is trite that the owner of a dominant tenement must exercise his
rights with due regard to the rights of the other owner
and thus must
exercise the servitude in a proper and careful manner so as to cause
least inconvenience to the servient owner.
See
Rubidge v Mc Cabe and Sons
1913 AD 433
at 431. However, the servitude in question contains a
precise description of how the right is to be exercised and
stipulates that
the applicants are entitled to maintain, repair and
replace the infrastructure. Furthermore, there is no real dispute
between the
parties with regard to the restoration of the
infrastructure. The applicants initially sought to bury the new pipes
underground,
presumably to avoid the consequences of a further veld
fire. It would appear that first respondent objected to this proposal
but
in the light thereof the applicants demurred. In third
applicant’s affidavit he states that there is no objection to
performing
the repair work in the presence of representatives of
first respondent nor indeed to first respondent itself carrying out
this
work, if it so prefers, provided that it does so in a manner
which fully restores the utility of the servitude.
[48]
There is, therefore, in my view, no justifiable apprehension that the
applicants may proceed to exercise their rights “unreasonably”
in restoring the servitude infrastructure.
RELIEF
SOUGHT
[49]
Prayer 5 entails an order directing first respondent to permit the
applicants access to the servient tenement for the purpose
of
cleaning the servitude springs, streams and intakes, keeping them in
good order and condition and for the purpose of repairing
and
maintaining the pipe lines and replacing any of it where necessary.
This relief echoes the terms of clause 2 of the registered
servitude.
By agreement, through these particular provisions, to use the
language of Van Heerden J in
Starke v Schreiber
(supra):
“
(
t)he
respondent’s predecessors in title lawfully divested themselves
of an incidence of their ownership in favour of the applicant’s
predecessors in title
.”
Since
none of first respondent’s defences have been upheld, and in
the light of the first respondent’s refusal over
three years to
permit the work in question, it must follow that the applicants are
entitled to the relief in question.
[50]
The balance of the relief sought comprises declaratory orders. On
behalf of first respondent it was contended that the Court
should, in
the exercise of its discretion, refuse to grant such orders. It was
argued that, regard being had to the demands of
justice or
convenience, this was not an appropriate case for declaratory orders.
The reasons advanced for this submission include
the alleged lack of
evidence proving the extent of the applicants’ rights. I have
found, however, that there was no such
shortfall in the evidence.
[51]
In
Adbro Investment Company Limited v Minister of the Interior and
Others
1961 (3) SA 283
(T) at 285D it was held that:
“
Some
tangible and justifiable advantage in relation to the applicant’s
position with reference to an existing future or contingent
legal
right or obligation must appear to flow from the grant of the
declaratory order sought.”
Williamson
JA stated further (at page 285A – B), in regard to the court’s
power to grant a declaratory order, that:
“
In each
case the court must carefully determine whether or not the particular
case in question is a proper case for the exercise
of its discretion.
For a case to be a proper case, in my view, generally speaking it
would require to be shown that despite the
fact that no consequential
relief is being claimed or perhaps could be claimed in the
proceedings, yet nevertheless justice or
convenience demands that a
declaration be made, for instance as to the existence of or as to the
nature of a legal right claimed
by the applicant or of a legal
obligation said to be due by a respondent. I think that a proper case
for a purely declaratory order
is not made out if the result is
merely a decision on a matter which is really of mere academic
interest to the applicant.”
[52]
In my view, it can hardly be said that the applicants have merely an
academic interest in the declaratory orders sought. The
orders relate
to and clarify the rights of the late Mr Hare and his
successors-in-title in relation to a servitude sought
to be exercised
which has considerable practical value and implications for the
applicants. The order seek to clarify the applicants’
rights in
relation to the servitude following the new water dispensation
introduced by the
National Water Act and
are, furthermore, a response
to first respondent disputing, on various grounds, the extent of such
rights and first respondent’s
refusal to allow the applicants
to exercise their rights in terms of the servitude. Apart from any
other consideration, the declaratory
orders will make it clear that
first respondent, or any other party for that matter, can no longer
insist on some other limitation
of the flow of the water by means of
a flow control device.
[53]
In the circumstances I consider that it would be a proper exercise of
this Court’s discretion to grant the declaratory
orders sought.
COSTS
[54]
On behalf of first respondent, Mr. Van Staden contended that,
whatever the outcome of the case, first respondent should not
be
ordered to pay costs. He relied on the case of
Coetzeestroom
Estate and Gold Mining Company v Registrar of Deeds
1902
(TS) 216 at 223-4 as authority for the general rule that costs will
not be awarded against a public official where his action
or stance,
though mistaken, was
bona
fide
. He contended,
furthermore, that the applicants could have approached the Department
of Water Affairs to determine their rights
in which event first
respondent would have abided that decision. However, the applicants
were under no obligation to follow such
a procedure, assuming this
was feasible, nor did they stand to gain anything therefrom to which
they were not already entitled.
Nor is it obvious to me that first
respondent would have abided by any decision arising out of such a
process. Mr van Staden argued,
further, that first respondent was
justified in denying the applicants’ access to the servient
tenement because their rights
were uncertain at the time. Finally, he
contended that first respondent’s refusal to allow such access
was justified in the
light of the applicants’ admission that
they may only utilise a 30mm pipe under Boyes Drive and that they are
not allowed
to bury the piping on the servient tenement.
[55]
The
Coetzeestroom Estate
case established a rule offering some protection against costs orders
to public officials who act
bona
fide,
but the rule has been
judicially qualified in certain respects. It has been held that the
views of the Court in that case were
not to be elevated into a rigid
rule of universal application for this would restrict too narrowly
the exercise of a judicial discretion
in the matter of costs. See
Attorney-General, Eastern
Cape
v
Blom
1988 (4) SA 645
(A) at
670F – G.
[56]
I do not consider that first respondent should be a beneficiary of
the general rule in the present matter. It was sued principally
in
its capacity as a neighbour and not as the repository of a particular
statutory or public duty as was the case in
Coetzeestroom
.
Whilst first respondent may indeed have been
bona
fide
in it opposition, it
acted nonetheless in a somewhat high-handed if not obstructive
fashion. The defences which it raised were
of a somewhat technical
nature, in some instances founded upon a speculative rather than a
factual basis. Furthermore, the factual
basis involved in some of the
defences raised by first respondent were not foreshadowed in the
meetings and inspections which preceded
the launching of the
application and which would have allowed the applicants’ to
clear up any misconceptions.
[57]
The applicants have been forced to litigate to obtain relief and have
been kept out of their rights since September 2005 as
a result of the
approach adopted by first respondent. None of the further
considerations advanced on behalf of first respondent,
either singly
or collectively, justify withholding a costs order from the
successful litigants. In the circumstances I consider
that the
applicants are fully entitled to their costs.
ORDER
[58]
In the result the following order is made:
1.
Declaring that the use by the
late Geoffrey Vincent Hare, in his capacity as the owner of the
property referred to as Remainder
of Erf […], Cape Town (“
the
dominant tenement
”),
of the water supply from two servitude springs situated on Erf […],
Cape Town, Division Cape, Province of the Western
Cape, (previously
known as Portion 1 of Consolidated Lot No. 184 of the farm
Weltevreden) (“
the
servient tenement
”),
as referred to in the servitude registered against the title deed of
the dominant tenement (namely Deed of Transfer No.
T28356/1978) and
the servient tenement (namely Deed of Transfer No. T930/1961),
constituted an “
existing
lawful water use
” as
defined in section 32(1) of the National Water Act 36 of 1998 (“
the
Water Act
”) as at the
commencement date of the Water Act.
2.
Declaring, accordingly, that
the said Geoffrey Vincent Hare was entitled, as from the said
commencement date:
2.1
in terms of section
22(1)(a)(ii) of the Water Act, to use the said water supply without a
licence; and
2.2
in terms of section 34(1) of
the Water Act, to continue with the said existing lawful water use,
subject to the further provisions
of section 34(1).
3.
Declaring further that the
First to Third Applicants (in their capacity as executors of the
deceased estate of the late Geoffrey
Vincent Hare) and the Fourth
Applicant (in its capacity as successor-in-title to the First to
Third Applicants as owner of the
property) have, and (in the case of
the Fourth Applicant) will, upon becoming owner of the property, have
the same entitlements
as set out in paragraph 2 above.
4.
Declaring further that the
Applicants are not precluded, by virtue of either regulation 39(2) or
regulation 42(c) of the Regulations
to the National Environmental
Management: Protected Areas Act 57 of 1993, promulgated on 28 October
2005 by way of GN R1061 in
Government Gazette No. 28181, from
repairing and restoring the infrastructure (as referred to in the
said title deeds), from making
use of and enjoying the water supply
in terms of the said servitude, nor from continuing to make use of
the said water supply in
terms thereof, and in particular that the
Applicants are not required to obtain the written permission of the
First Respondent
and/or to conduct an environmental impact assessment
in regard to any such repair and/or restoration and/or use.
5.
Directing First Respondent to
permit the Applicants access to Erf […], Cape Town, Division
Cape, Province of the Western
Cape (previously known as Portion 1 of
Consolidated Lot No. 184 of the Farm Weltevreden) for the purpose of
cleaning the servitude
springs, streams and intakes referred to in
the said title deed, keeping the same in good order and condition,
and/or repairing
and maintaining the pipe lines referred to therein
in good order and condition and replacing any of the aforesaid pipe
lines when
and where necessary, and permitting the Applicants to
carry out any of the aforegoing activities on the said property.
6.
First respondent is directed to
pay the costs of this application.
_________________
LJ
BOZALEK, J