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[2020] ZASCA 67
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Le Roux NO and Others v Botha NO and Others (427/19) [2020] ZASCA 67 (17 June 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 427/19
In the
matter between:
CAREL
WYNAND LE ROUX
NO FIRST
APPELLANT
NIEL
FICK
NO SECOND
APPELLANT
ANDRONIKUS
GRIESSEL
NO THIRD
APPELLANT
(in
their capacities as trustees of the Goudyn Plase Trust (IT221/97))
and
THEUNIS
CHRISTOFFEL BOTHA
NO FIRST
RESPONDENT
THEUNIS
CHRISTOFFEL
BOTHA
(JNR)
NO SECOND
RESPONDENT
HILDE
BOTHA
NO THIRD
RESPONDENT
(in their capacities as trustees of the TC Botha
Trust
(IT318/97))
THEUNIS
CHRISTOFFEL
BOTHA FOURTH
RESPONDENT
MINISTER
OF WATER
AND
SANITATION FIFTH
RESPONDENT
MEC
ENVIRONMENTAL AFFAIRS AND
DEVELOPMENT
PLANNING,
WESTERN
CAPE SIXTH
RESPONDENT
Neutral
citation:
Le Roux NO and Others v Botha NO and Others
(Case no 427/19)
[2020] ZASCA 67
(17 June 2020)
Coram:
NAVSA, MOCUMIE and MAKGOKA JJA and LEDWABA and GORVEN AJJA
Heard
:
4 May 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 17 June 2020.
Summary:
Servitudes – water drawing and leading – disputes –
matter settled – costs – considerations.
ORDER
On
appeal from:
Western Cape Division of the High Court (Binns-Ward
J, sitting as court of first instance):
1 The order of the court below is set aside and the
following order by consent between the appellants and the first to
fourth respondents
is made in substitution:
a) That the trustees of the Goudyn Plase Trust (the
Goudyn trust) connect the pipe from the tap below Dam 3 to the pipe
in
aabb
at a place pointed out by the trustees of the TC Botha
Trust (the Botha trust), but not further than 5m from the said tap,
at the
Goudyn trust’s cost.
b) That a mechanism for the division of water be
designed and installed by a suitable professional person, located as
a matter of
practical preference at the existing emergency
abstraction point currently in situ, the costs thereof to be shared
between the
two trusts equally.
(i) This mechanism will divide all water extracted
between the parties on a 60% (the Botha trust) 40% (the Goudyn trust)
ratio of
division, except for water to be conveyed to the homestead
farm of the Botha trust, and the farm of Piet Le Roux during the
exercise
of their existing water turns.
(ii) It is recorded that the understanding is that the
existing water turns of the Botha trust in its capacity as owners of
the
homestead farm and Piet Le Roux (‘Water Turn Holder(s)’)
are as follows:
(a) Homestead farm: 16 hours every 14 days;
(b) Piet Le Roux’s farm: 52 hours every 14 days.
(iii) In practice, this will mean that when the above
water turns commence, extraction of water by the Goudyn trust and the
Botha
trust will cease for the duration of those water turns, as was
the case in the past. When each water turn terminates, the extraction
pipe or sleuth utilised during the water turns, will be closed off to
enable the Goudyn trust and the Botha trust to share in all
the water
available at the extraction point on a 60/40 percentage (60% the
Botha trust and 40% the Goudyn trust) until the following
water turn
commences.
c) That the Owner of Portion 3 (currently the Botha
trust) is entitled to make use of the servitude works (in its old,
current or
future form) for purposes of abstraction of water as a
riparian land owner, limited to a use strictly in accordance with the
terms
and conditions of this settlement agreement.
d) That if any agreed amendments to the servitudes as
registered are to be undertaken, such registered servitudes will also
be amended
to state the entitlements of the owner of Portion 3, as
set out in c) above, clearly.
e) That the Goudyn trust is entitled to install a pipe
from the ‘New Abstraction Point 4 (existing abstraction point)’
to Point
s
. The installation of this pipe takes place after
the mechanism mentioned in b) above is in place and is for the Goudyn
trust’s
cost.
f) That the Botha trust will not oppose any application
by the Goudyn trust to increase the volume of Dam 1. That, equally,
the
Goudyn trust will not at any time in future oppose any
application by the owner of Portion 3 to enlarge the capacity of Dam
3.
g) That the Botha trust undertakes not to plant anything
over the new pipes installed by the Goudyn trust, and to allow
reasonable
access by the Goudyn trust to the pipes for inspection and
maintenance.
h) That the Botha trust’s new camp site will
extract its water from the Botha trust’s portion of water, and
not directly
from the river.
i) That the Botha trust will apply for the necessary
authorisation to proceed with the work agreed upon and regularisation
of the
‘new abstraction point’ at its own cost and with
the support of the Goudyn trust, where necessary for purposes of
motivation
of such regularisation application. If any penalties
should be levied or imposed for any work done at the new abstraction
point
or in the river or if the Botha trust should appeal against any
decision of the relevant authorities, it will carry the costs for
such penalty and/or appeal.
(i) A period of 24 months will be afforded for
regularisation.
(ii) The two trusts may agree to the extension of this
period if necessary, which consent will not be unreasonably withheld
by either
of them.
j) That, should directives be issued as a condition for
authorisation that are in conflict with the agreed system, the system
will
be amended only to the extent necessary for compliance with such
directives, still ensuring the same nett result of the sharing
of
water agreed upon. If this net result cannot be achieved on the
agreed system, the two trusts will agree to a different system
that
complies with the conditions for authorisation, with a nett result of
a 60/40 division of all water extracted at the shared
point after
Piet Le Roux and the homestead farm are provided for in accordance
with what is legally due to them as set out in b(ii)
above. Except as
set forth herein, neither trust may extract any water from the
Wolvenkloofstream upstream from the new extraction
point, or any
other alternative shared point of abstraction to be erected in terms
of this agreement.
k) That registration of any new servitudes and the
cancellation of any existing servitudes necessary to reflect all
changes to the
previous regime, agreed herein, will be for the Goudyn
trust’s account, and the Botha trust consents thereto where
necessary.
Piet Le Roux’s consent will also be obtained to do
this.
l) That, should the water works agreed to in this
settlement agreement not be authorised within the period of 24 months
(or a further
extension of time granted by the Goudyn trust to the
Botha trust) for any reason, or if Piet Le Roux should not
consent
to the agreements regarding the water distribution system or
the amendment of existing servitudes, the original system at the
servitude
point
ut
will be restored according to the letter of
the servitudes currently in existence, or as closely thereto as
possible. The agreement
to share water on a 60/40 basis after
provision is made for the entitlements of Piet Le Roux’s
farm and the homestead
farm, however, will still stand. The two
trusts will then share the costs of restoration of the system to its
original state equally.
m) That the two trusts shall, immediately upon the
settlement agreement being made an order of Court, proceed to
implement the agreed
settlement arrangements regarding
regularisation, servitudes and water abstraction and the distribution
thereof, but on condition
that the mechanism referred to in b)(i)
above will not be constructed before due authorisation by the
relevant authorities to implement
the agreed settlement arrangement.
2 There shall be no order as to costs in either the
application or the appeal.
JUDGMENT
Gorven
AJA (Navsa, Mocumie and Makgoka JJA and Ledwaba AJA concurring)
[1]
This appeal relates to water servitudes over agricultural land. A
river runs through a farm in the Worcester area. The river
is the
Wolvenkloofstroom (the river). A dispute arose as to the drawing and
leading of water from the river. The background to
the matter is of
some moment. The farm was owned by the father of Andries Abraham Le
Roux (Andries) and his brother Schalk Johannes
Le Roux (Schalk). In
1983, Andries and Schalk bought it from their father and thereafter
owned it in equal undivided shares. Andries
and Schalk agreed in 1987
to divide the farm into four properties. This gave rise to a Deed of
Division by which transfer of the
subdivided farms was registered in
1990. At the same time as the farm was subdivided, servitudes were
registered. Andries became
the owner of the three farms described as
Portions 1 and 2 of the Farm Goudyn and the Remainder of the Farm
Goudyn (the dominant
farms). Schalk became the owner of the farm
described as Portion 3 of the Farm Goudyn (the servient farm).
[2]
The river runs over the servient farm
[1]
and is a tributary of the Holsloot river. The dominant farms each
hold registered servitudes
[2]
over the servient farm. The servitudes allow the dominant farms to
draw water
[3]
from the river and lead it
[4]
over the servient farm along specified routes by way of either
pipelines or furrows. There are dams on Portions 1 and 2 (dam 1
and
dam 2) and on the servient farm (dam 3). Dams 1 and 2 have a total
capacity of about 28 000 cubic metres and dam 3 about
86 000.
[3]
At the time of sub-division, the water from the river was drawn
immediately upstream of a weir (the original weir). The original
weir
is situated on the servient farm. A pipe drew water from just above
the weir into a furrow (the extraction pipe). The water
was led to
dam 1 and dam 1 fed dam 3 along a furrow running between them. Dam 2
was fed separately. The servitudes gave effect
to the situation which
obtained at the time of subdivision except that no provision was made
in them for dam 3 to obtain water
from dam 1. Two other owners of
farms (the lower farms) hold servitudes over the servient farm to use
water during specific times
(waterbeurte). They lead the water along
the same routes as Portion 2 up to a certain point.
[4]
Andries, the father of the first appellant, sold the dominant farm to
the trustees of the Goudyn Plase Trust (the Goudyn trust)
in 2007. On
12 October 2012, Schalk sold and transferred the servient
farm to the trustees of the TC Botha Trust (the
Botha trust). The
Botha trust also owns one of the lower farms enjoying water use at
specified times. When the Botha trust took
transfer of the servient
farm, the Goudyn trust blocked the furrow between dam 1 and dam 3,
thus cutting off the previous supply
of water to dam 3. The Goudyn
trust avers that it had allowed Schalk to use water from the original
weir while he was owner as
a personal favour. It says that the
servient farm was not entitled to that water and it was within its
rights to terminate this
supply.
[5]
After the furrow between dams 1 and 3 was closed, the servient farm
had to obtain water directly from the river. It did so by
utilising
water drawn into the furrow from the extraction pipe above the
original weir and leading some of that water into a pipeline
over the
servient farm directly to dam 3. The Goudyn trust took the view that
the Botha trust was not entitled to any water from
the original weir
and the extraction pipe. This led to the Goudyn trust initiating
spoliation proceedings.
[6]
Events overtook that application when, on 15 November 2013,
a severe flood washed away the original weir. It also
washed away the
extraction pipe. Thereafter, the Botha trust erected a new weir (the
new weir) and 400mm extraction pipe. The new
weir was completed on
25 November 2013. It is situated some 65 metres above the
site of the original weir. The Botha
trust also excavated a new
furrow. The new furrow is fed from the new weir by the extraction
pipe. Across the furrow, an earth
wall was constructed with two below
wall pipes feeding the farms and above wall pipes for any overflow.
The short below wall pipe
is 125mm in diameter and discharges water
into the new feeder furrow which was joined to the servitude furrow
feeding the dominant
farms. The long below wall pipe is 200mm in
diameter and carries water to dam 3. This means that the servitude
furrow to the dominant
farms is supplied through only the 125mm pipe,
while the servient farm is supplied through a 200mm pipe to a certain
point, after
which dam 3 is supplied through a 125mm pipe. The
servitude furrow was previously fed from the original extraction pipe
which was
400mm in diameter.
[7]
The original weir has not been reconstructed. It is common cause
that, since the flood, all three dams and the lower farms have
been
fed from the new weir. It is also common cause that the Botha trust
did not obtain environmental authorisation for the construction
of
the new weir and waterworks. A process seeking authorisation after
the fact is currently pending. The new weir was constructed
to meet
immediate needs. The Goudyn trust, which took no part in the works
constructed after the flood, complains that the pipe
leading into its
servitude furrow is now 125mm in diameter whereas it was previously
400mm. The pipe leading to the servient farm
is 200mm in diameter.
The complaint is that the Goudyn trust receives only a portion, and
an even smaller one than hitherto, of
the water extracted from the
river at the new weir, whereas it should be entitled to all the
water. In addition, it complains that
the new weir and waterworks are
unlawful, having been constructed without the requisite permissions.
[8]
The new weir is justified by the Botha trust on the basis that it is
less extensive than the original one, runs parallel to
the river and
not across it, allows for gravity feeds and prejudices no-one. It is
claimed to be less likely to wash away or require
repairs. The
original weir required repairs caused by river pressure about twice a
year. The new weir required no repairs during
the two years preceding
the application. In any event, says the Botha trust, the flood
altered the area around the original weir,
making the cost of any
replacement prohibitive and requiring a large amount of material to
be utilised. This would require consent
from the authorities and an
environmental impact study. The Botha trust resists the
reconstruction of the original weir.
[9]
The Goudyn trust applied to the Western Cape
Division of the High Court for a declaration of rights concerning the
servitudal rights
and two interdicts. The substantive relief sought
can be summarised as follows:
[5]
1 Declaring that the Goudyn trust is entitled, in the
exercise of its servitudal rights, to abstract water by means of a
weir erected,
or to be erected, as indicated on the map referred to
in the servitudes alternatively at the place where the original weir
had
been erected prior to the flood of 15 November 2013.
2 Interdicting the Botha trust and Mr Botha in his
private capacity from interfering with, or preventing the exercise
of, the Goudyn
trust’s servitudal rights.
3 Directing the Botha trust and Mr Botha to forthwith:
3.1 Permit the full flow of all water abstracted by the
original weir to pass undisturbed and unobstructed through the Goudyn
trust’s
servitude furrows and pipelines, inclusive of the
operation of the diversion sluices of the Goudyn trust at points
s
and
h
.
3.2
[6]
Permit the Goudyn trust to replace, fix and set iron or steel sluice
plates, which were previously removed from the diversion boxes
at
points
s
and
h
,
the latter in order to give effect to the water use by the lower
farms.
3.3 Demolish the weir or structures that have been
constructed upstream from the servitude weir; alternatively, put them
out of
operation in a manner which would prevent any water being
thereby abstracted, or led away, from the river.
3.4 Remove and demolish the weir or structures erected
in the river upstream from the original weir to dam up water in the
river,
alternatively to put them out of operation in a manner that
will result in the water in the riverbed flowing freely and
unhindered
to the original weir.
[10]
The demolition order was premised on the averment that the new weir
and structures fell foul of the National Water Act 36 of
1998 (NWA)
and the National Environmental Management Act 107 of 1998 (NEMA). It
was alleged that these interfered with the bed,
banks and course of
the river ‘in order to impede and divert the flow of water in
the river.’ As such it was contended
that they contravened
s 21
(c)
and
(i)
of the NWA.
[11]
The Minister of Water and Sanitation and the MEC for Environmental
Affairs and Development Planning for the Western Cape were
joined as
respondents but, apart from an employee of the former having
delivered an affidavit indicating that he would consider
the
answering affidavit before deciding what course to take, neither took
part in the matter, even after the answering affidavit
was delivered.
This is also true of the appeal.
[12]
The application was referred for the hearing of oral evidence. It was
thereafter dismissed with costs by Binns-Ward J
who refused
leave to appeal to this court. Leave to appeal was granted by this
court.
[13]
Both the trusts claim to have been open to a sensible, negotiated
solution. The Goudyn trust contends that, in closing off
the furrow
between dams 1 and 3, thus depriving the latter of water from the
river along the traditional route, it was simply giving
effect to the
servitude. The Botha trust claims that this was done out of spite
because the Goudyn trust had wanted to purchase
the servient farm
when Schalk sold it to the Botha trust. The Goudyn trust was thereby
attempting to force the Botha trust to sell
to it since it would have
no water with which to farm. On the other hand, the Botha trust
claims that it has no obligation to supply
water to the dominant
farms from the new weir since it is not the servitudal weir and had
done so out of generosity.
[14]
The Goudyn trust sought an order that the new weir be demolished and
contended that the Botha trust was not entitled at all
to water
extracted from the river above the original weir once it has been
restored. For its part, the Botha trust disputed the
servitudes,
saying that they should be set aside as lacking consensus or were at
least subject to rectification so as to allow
dam 3 to be fed from
dam 1. When Schalk did not make himself available for
cross-examination, the Botha trust perforce abandoned
this line of
argument. It also disputed the declaration of rights sought by the
Goudyn trust that it had a right to erect a weir
at the point where
the original weir stood prior to the flood, saying that this would be
illegal.
[15]
During the hearing before us, it was put to the parties that, as
neighbouring farmers, the matter cried out for a sensible,
practical,
negotiated solution. They were each entitled to whatever water use is
allowed by the prevailing legislation and would
be better placed than
the court to work out how to allocate water between them if there was
any shortage. The parties had attempted
to settle the matter prior to
the appeal hearing but took the opportunity to make further such
attempts. During the hearing, the
parties indicated that they had
arrived at an in-principle solution but would require time to arrive
at a detailed, agreed order.
They requested that the matter be
adjourned for that purpose but indicated that it might be necessary
for this court to determine
the question of costs. They produced an
agreed order as to the merits by 26 May 2020. However, they
indicated that the
issue of costs had not been resolved and would
need to be decided. They were afforded an opportunity to address
written argument
on that issue and each of them made further written
submissions. This, then, is the only aspect of the matter on which a
decision
is required.
[16]
The Goudyn trust submitted in its further written submissions on
costs that, although it had good grounds for being awarded
the costs
of both the application and the appeal, it would be appropriate in
all the circumstances of the matter for each party
to bear its own
costs.
[17]
The Botha trust argued strenuously that it should be awarded costs in
both fora. It argued that the relief sought by the Goudyn
trust was
all premised on the Botha trust not being entitled to draw any water
from the servitude weir, once reconstructed and
that the new weir and
waterworks are illegal and must be demolished. These submissions are
only partly accurate. The declaration
of rights sought is not
premised on exclusive use. It claimed no more than is prescribed in
the servitudes. While some of the relief
arguably went too far in
attempting to claim the sole right to draw water from that point,
since water use rights are determined
by legislation, this was not
the only aspect of the relief which was opposed by the Botha trust.
[18]
As for the contention, mentioned in argument during the hearing and
repeatedly by the Botha trust in the further written submissions
on
costs, that it had been ‘dragged to court’, the Botha
trust initially claimed that the servitudes should either
be set
aside due to lack of consensus or should be rectified. I also do not
agree with the submission that the Goudyn trust abandoned
the relief
sought during the hearing. It certainly did not abandon the need for
the declaration of rights concerning the servitude
since this had
been contested terrain and had been disallowed by the court of first
instance. The agreed order recognises this
right and makes provision
for the amendment of the servitudes if the new weir is approved by
the authorities. Had the Goudyn trust
not persisted in the appeal, I
think it is fair to say that no settlement would have occurred and
the parties would have continued
at loggerheads with each other.
[19]
In the totality of the circumstances it cannot therefore be said that
either party would have achieved clear and substantial
success. There
were bases which, on the face of it, could justify some of the relief
sought by the Goudyn trust and bases on which
other aspects of the
relief sought could, on the face of it, have been successfully
resisted. It would be inappropriate to say
more than that in the
light of the settlement of the merits. As was submitted by the Goudyn
trust, this court does not lightly
adjudicate matters where the only
remaining issue relates to costs.
[20]
The parties have now embarked on a new chapter of neighbour
relations. It is sincerely hoped that this heralds in an era of
co-operation in place of the past combative contestation. The extent
of the co-operation to which they have committed themselves
can be
gleaned from the terms of the agreed order sought. In my view, it
would not be helpful in fostering these neighbour relations
for a
costs order to be made in either the application or the appeal. This
may serve to declare a winner and a loser and threaten
to sour their
future relationship. In all the circumstances, it seems to me
equitable to let the costs lie where they fall, without
making any
order.
[21]
In the result, the following order issues:
1 The order of the court below is set aside and the
following order by consent is made in substitution:
a) That the trustees of the Goudyn Plase Trust (the
Goudyn trust) connect the pipe from the tap below Dam 3 to the pipe
in
aabb
at a place pointed out by the trustees of the TC Botha
Trust (the Botha trust), but not further than 5m from the said tap,
at the
Goudyn trust’s cost.
b) That a mechanism for the division of water be
designed and installed by a suitable professional person, located as
a matter of
practical preference at the existing emergency
abstraction point currently in situ, the costs thereof to be shared
between the
two trusts equally.
(i) This mechanism will divide all water extracted
between the parties on a 60% (the Botha trust) 40% (the Goudyn trust)
ratio of
division, except for water to be conveyed to the homestead
farm of the Botha trust, and the farm of Piet Le Roux during the
exercise
of their existing water turns.
(iv) It is recorded that the understanding is that the
existing water turns of the Botha trust in its capacity as owners of
the
homestead farm and Piet Le Roux (‘Water Turn Holder(s)’)
are as follows:
(c) Homestead farm: 16 hours every 14 days;
(d) Piet Le Roux’s farm: 52 hours every 14 days.
(v) In practice, this will mean that when the above
water turns commence, extraction of water by the Goudyn trust and the
Botha
trust will cease for the duration of those water turns, as was
the case in the past. When each water turn terminates, the extraction
pipe or sleuth utilised during the water turns, will be closed off to
enable the Goudyn trust and the Botha trust to share in all
the water
available at the extraction point on a 60/40 percentage (60% the
Botha trust and 40% the Goudyn trust) until the following
water turn
commences.
c) That the Owner of Portion 3 (currently the Botha
trust) is entitled to make use of the servitude works (in its old,
current or
future form) for purposes of abstraction of water as a
riparian land owner, limited to a use strictly in accordance with the
terms
and conditions of this settlement agreement.
d) That if any agreed amendments to the servitudes as
registered are to be undertaken, such registered servitudes will also
be amended
to state the entitlements of the owner of Portion 3, as
set out in c) above, clearly.
e) That the Goudyn trust is entitled to install a pipe
from the ‘New Abstraction Point 4 (existing abstraction point)’
to Point
s
. The installation of this pipe takes place after
the mechanism mentioned in b) above is in place and is for the Goudyn
trust’s
cost.
f) That the Botha trust will not oppose any application
by the Goudyn trust to increase the volume of Dam 1. That, equally,
the
Goudyn trust will not at any time in future oppose any
application by the owner of Portion 3 to enlarge the capacity of Dam
3.
g) That the Botha trust undertakes not to plant anything
over the new pipes installed by the Goudyn trust, and to allow
reasonable
access by the Goudyn trust to the pipes for inspection and
maintenance.
h) That the Botha trust’s new camp site will
extract its water from the Botha trust’s portion of water, and
not directly
from the river.
i) That the Botha trust will apply for the necessary
authorisation to proceed with the work agreed upon and regularisation
of the
‘new abstraction point’ at its own cost and with
the support of the Goudyn trust, where necessary for purposes of
motivation
of such regularisation application. If any penalties
should be levied or imposed for any work done at the new abstraction
point
or in the river or if the Botha trust should appeal against any
decision of the relevant authorities, it will carry the costs for
such penalty and/or appeal.
(j) A period of 24 months will be afforded for
regularisation.
(ii) The two trusts may agree to the extension of this
period if necessary, which consent will not be unreasonably withheld
by either
of them.
j) That, should directives be issued as a condition for
authorisation that are in conflict with the agreed system, the system
will
be amended only to the extent necessary for compliance with such
directives, still ensuring the same nett result of the sharing
of
water agreed upon. If this net result cannot be achieved on the
agreed system, the two trusts will agree to a different system
that
complies with the conditions for authorisation, with a nett result of
a 60/40 division of all water extracted at the shared
point after
Piet Le Roux and the homestead farm are provided for in accordance
with what is legally due to them as set out in b(ii)
above. Except as
set forth herein, neither trust may extract any water from the
Wolvenkloofstream upstream from the new extraction
point, or any
other alternative shared point of abstraction to be erected in terms
of this agreement.
k) That registration of any new servitudes and the
cancellation of any existing servitudes necessary to reflect all
changes to the
previous regime, agreed herein, will be for the Goudyn
trust’s account, and the Botha trust consents thereto where
necessary.
Piet Le Roux’s consent will also be obtained to do
this.
l) That, should the water works agreed to in this
settlement agreement not be authorised within the period of 24 months
(or a further
extension of time granted by the Goudyn trust to the
Botha trust) for any reason, or if Piet Le Roux should not
consent
to the agreements regarding the water distribution system or
the amendment of existing servitudes, the original system at the
servitude
point
ut
will be restored according to the letter of
the servitudes currently in existence, or as closely thereto as
possible. The agreement
to share water on a 60/40 basis after
provision is made for the entitlements of Piet Le Roux’s
farm and the homestead
farm, however, will still stand. The two
trusts will then share the costs of restoration of the system to its
original state equally.
m) That the two trusts shall, immediately upon the
settlement agreement being made an order of Court, proceed to
implement the agreed
settlement arrangements regarding
regularisation, servitudes and water abstraction and the distribution
thereof, but on condition
that the mechanism referred to in b)(i)
above will not be constructed before due authorisation by the
relevant authorities to implement
the agreed settlement arrangement.
2 There shall be no order as to costs in either the
application or the appeal.
_________________________
GORVEN
AJA
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: A La Grange SC
Instructed
by: Du Bois Attorneys, Robertson
Symington
& De Kok, Bloemfontein
For
respondent: T J Nel
Instructed
by: Krouwkams Attorneys, Worcester
Phatshoane
Henney, Bloemfontein.
[1]
It also runs over the Remainder but, for present purposes, that is of
no moment.
[2]
It is the owners of a property who hold servitudes in their capacity
as owners but, for the sake of conciseness, I shall refer
to the
properties as holding the servitudes.
[3]
Known as a servitude of
aquaehaustus
.
[4]
Known as a servitude of
aquaeductus
.
[5]
I am using the language used in this judgment to describe the
various parties and aspects of the servitudes for the sake of
clarity.
[6]
This was numbered 3.3 without a paragraph 3.2 so this and the
subsequent paragraphs have been renumbered to follow sequentially.