SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 22089/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 22/02/2025
SIGNATURE
In the matter between:
BERNARD THEUNIS BOTHA First Applicant
LEONORE BOTHA Second Applicant
and
DIE HOËR SKOOL MENLOPARK First Respondent
THE PRINCIPAL: DIE HOËR SKOOL MENLOPARK Second Respondent
THE GOVERNING BODY: DIE HOËR SKOOL MENLOPARK Third Respondent
MEMBER OF THE EXECUTIVE COUNCIL :
GAUTENG DEPARTMENT OF BASIC EDUCATION Fourth Respondent
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Fifth Respondent
THE GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA Sixth Respondent
THE PROVINCIAL GOVERNMENT: GAUTENG
PROVINCE Seventh Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date for the handing down of the
judgment shall be deemed to be 24 February 2025
JUDGMENT
LG KILMARTIN , AJ:
A. INTRODUCTION :
[1] This is an opposed application brought by Barnard Theunis Botha (“the
first applicant”) and Leonore Botha (“the second applicant”) for a spoliation order
and a final interdict against Die Hoërskool Menlopark (“the first respondent”), the
Principal: Die Hoërskool Menlopark (“the second respondent” or “the Principal” )
and the Governing Body: Die Hoërskool Menlopark (“the third respondent” or
“the Governing Body” ).
[2] The first and second applicants are referred to collectively below as “the
applicants” and t he first, second and third respondents are referred to collectively
below as “the School ”. The first respondent is a public school as defined in
section 1 of the South African Schools Act, 84 of 1996 (“the South African
Schools Act”), read with Chapter 3 thereof.
[3] The fourth respondent - the M ember of the Executive Council : Gauteng
Department of Basic Education, the fifth respondent - the City of Tshwane
Metropolitan Municipality, the sixth respondent - the Government of the Republic
of South Africa , and the seventh respondent - the Provincial Government :
Gauteng Province (which was formally joined as a party at the commencement
of the proceedings) did not file papers or heads of argument. Notwithstanding
this, Mr M Rakg oale (“Mr Rakgo ale”) appeared on behalf of the fourth
respondent and confirmed that the fourth respondent is in agreement with the
grounds of opposition raised by the School . Mr JA Venter (“Mr Venter”) who
appeared for the applicants objected to Mr Rakg ode making representations as
no papers or heads of argument had been filed by the fourth respondent. This
objection is sound and, at best, Mr Rakgo ale was on a watching brief.
[4] Since 27 August 2015, the applicants have been the registered owners
and occupiers of a residential property situated at 3[...], T[...] R[...] Street, M[...]
P[...], Pretoria, which is also known as the Remaining Extent of Erf 7[...], M[...]
P[...] (“the applicants’ property”).
[5] The School occupies and operates a public school on two properties,
namely:
[5.1] the Remaining Extent of Erf 7[...], M[...] P[...] , Registration
Division JR, Pretoria (“the Remaining Extent of Erf 7[...]”); and
[5.2] Portion 43 of the Farm Hartebeespoort, 326, JR Gauteng
(“Portion 43”).
[The aforesaid properties are referred to collectively below as
“the School property”.]
[6] This dispute concerns a borehole servitude which is registered in favour
of the applicants’ property over Portion 43 (which forms part of the School
property) in terms of which the applicants are entitled to extract no more than
1 239 818.10 litres of water per month (“the servitude”). The borehole is situated
near the corner of Lynnwood and Atterbury Roads and has a pump station .
[7] The borehole and pump station require municipal electricity and the
applicants accordingly caused a separate electricity connection and meter to be
installed by the Municipality on Portion 43, exclusively for purposes of providing
electricity to the pump station.
[8] The applicants are not connected to the municipal water supply and
exclusively make use of water obtained from the borehole situated on Portion 43.
[9] The current dispute arose during March 2021 when the applicants
became aware that the School had caused a peg to be driven into the ground to
prevent the opening of a specific pedestrian gate which had been used by the
applicants to gain access to the area where the borehole, pump station and
electricity meter are situated (“the servitude tenement” or “the servitude area”) .
As will be explained in more detail below, with reference to the correspondence
which has been exchanged between the parties, the Scho ol, without consulting
the applicants, also unilaterally placed additional restrictions on the manner in
which the applicants c ould access the servitude tenement during March 2021 .
Up until then (save for some instances which will be referred to below), the
applicants and their predecessor in title had unfettered access through gates to
the servitude tenement.
[10] In terms of the amended notice of motion, the applicants’ spoliation and
interdictory relief is phrased as follows:
“SPOLIATION :
2. That the First to Third Respondents immediately restore the
Applicants’ undisturbed access to their borehole servitude
registered over Portion 43 of the Farm Hartebeespoort 362,
Registration Division JR, Gauteng, registered in favour of the
remainder of Erf 7[...], M[...] P[...] , Pretoria, which servitude was
originally registered in notarial deed no. 633/1984S and dated
10 August 1948.
INTERDICT :
3. That the First to Third Respondents be interdicted from, in any way
whatsoever, infringing upon the Applicants’ rights emanating from
the servitude described in paragraph 2 above, which inter alia will
include:
3.1 Prohibiting the drilling or utilisation of any new borehole or
the drawing of water from the same aquifer which may
detrimentally affect the yield of the Applicants’ borehole
servitude;
3.2 Impeding or in any way restricting the Applicants’
undisturbed access to their borehole pump station and
pipeline situated on Portion 43 of the Farm Hartebeespoort
362, Registration Division JR, Gauteng; and
3.3 Impeding or in any way restricting the Fifth Respondent’s
access to the Applicants’ electricity meter ( 1[...]) situated on
Portion 43 of the Farm Hartebeespoort 362, Registration
Division, JR, Gauteng Province ( 4[...] A[...] Road, M[...]
P[...], alternatively 4[...] A[...] Road, M[...] P[...] ).”
[11] The School brought a counter application wherein it seeks to cancel the
servitude based on section 133 of the National Water Act, 36 of 1998 (“the Water
Act”). In the alternative to the cancellation relief, the School has requested a
declaratory order which is aimed at regulat ing and restricting access to the
servitude area . The School was represented by Mr A Vorster and Mr A Kruger.
[12] The relief sought in the counter application is phrased as follows:
“2. In terms of Section 133 of the National Water Act 36 of 1998 (‘the
Water Act’) that the servitude that was over Portion 43 of the Farm
Hartebeespoort 362, Registration Division JR, Province Gauteng in
extent 7,2491 hectares (held by Deed of Transfer no.
T14778/2000) (the other property) in favour of Erf 7[...], M[...] P[...]
Extension 1 (held by Deed of Transfer T000074601/2015) (the
Applicants’ property) as contained in Annexure ‘FA4’ annexed to
the Founding Affidavit be cancelled;
3. In the alternative to prayer 2 above and only in the event of the
Honourable Court finding that the said servitude should not be
cancelled then and in that event that a declarator be issued
declaring that the School is entitled to limit the Applicants and the
Applicants’ successors in title’s rights in respect of the execution of
the servitude as follows:
3.1 That access to the servient tenement, for whatsoever
reason by the Applicants or any person acting on behalf of
the Applicants only be obtained:
(i) for routine maintenance within 24 hours prior
notification to the School; and
(ii) for emergency access by contacting the persons
nominated from time to time by the School which
persons are at present Mr Hannes Lombard with cell
phone no. 0[...] or Mr Mafalo with cell phone no. 0[...];
(iii) that neither the Applicants nor any party acting on
their behalf shall enter upon the servient tenement
without being accompanied by a representative of the
school; and
(iv) that for [as] long as the C ovid 19 virus pandemic and
the Standard Operating Procedures for the
Prevention, Containment and Management of C ovid
19 in Schools and Schools communities are relevant
and applicable that the Applicants and/or any party
acting on their behalf with comply with the provisions
thereof. ” (sic)
[13] Before dealing with the relevant legal principles and merits, it is
necessary to have regard to further relevant background facts and, in particular,
the correspondence which was exchanged prior to this application being
launched , as it provides context and constitutes the fundamental backdrop
against which this application must be adjudicated.
B. RELEVANT BACKGROUND FACTS :
[14] The parties provided a summary of common cause facts and, inter alia ,
agreed that the content of the correspondence dated between 1977 and 2019 is
not in dispute.
[15] The servitude was registered over Portion 43 between 1945 and 1948.
At that time, the applicants ’ property was the old farmhouse. That property was
later subdivided into numerous portions.
[16] The applicants ’ property was purchased by them from the Andr é De
Klerk Familie Trust (“the Trust”) . Prior to applicants and the Trust becoming the
registered owners of the applicants’ property, a deed of sale was concluded
between Frank Edward Beattie Struben (“Mr Struben”) and Eileen Mary
Chapman (“Ms Chapman”) and as an integral part of the deed of sale a servitude
was registered entitling Ms Chapman to a servitude to withdraw 60 000 gallons
of water per month from an existing borehole that was situated near the junction
of Lynnwood Road and Gars tfontein Road ( which is now known as Atterbury
Road), which servitude was also granted to her successors in title or assigns.
[17] The proclamation of the township of Menlo Park Extension 1 took place
in 1948. Pursuant to the terms of the township proclamation, the servitude was
restricted to Erf 7[...] (i.e. the applicants’ property) by way of Notarial Deed No.
633/1948.
[18] Since 1948, upon transfer and re-transfer of the applicants’ property , the
notarial deed of servitude was incorporated in the title deed and to date remains
registered over the School property.
[19] As early as 13 October 1977, correspondence was exchanged between
the School’s attorneys, Van Zyl, Le Roux & Hurter , and Mr André De Klerk (“Mr
De Klerk”) representing the applicants’ predecessor in title. In a letter titled “I/S:
HOëRSKOOL MENLO PARK – POMPHUISIE” , the following is stated:
“Ons verwys na ons gesprek met u ‘n tyd gelede met betrekking tot die
pomphuisie op die skool se terrein en u reg om daar water te pomp
volgens ‘n tans ge -registreerde Ser wituut. Teneinde die onooglikheid uit
die weg te ruim en om aan ander behoeftes te voorsien (naamlik die
uitbreiding van die netbalbane) het ons ooreengekom: -
1. dat die skool op sy eie koste die terrein sal skoonmaak en in
stand hou;
2. dat die oorspronklike hoekpenne behoue bly en sou dit op een of
ander manier verwyder raak, sal die skool verantwoordelik wees
om dit terug te plaas;
3. dat alhoewel u onderneem het om die pomphuisie te herstel, is
die skool tog bereid en bied hiermee aan om dit self te herstel,
om sodoende ‘n mooi konstruksie te kry wat by die omgewing
pas. U sal dan geken word in die uitvoering daarvan; en
4. dat u ten alle tye onbelemmerde toegang tot die pomphuisie
gewaarborg word .
Graag ontvang ons u bevestiging hiervan . Die Beheerraad se dank en
waardering word ook aan u oorgedra vir u samewerking en aanbiedings
van die verlede. ” (Emphasis added)
[20] From the aforesaid letter , it is evident that the registered servitude was
acknowledged by the School and the School offered to maintain and repair the
pump station or the pump house but guaranteed Mr De Klerk unrestricted access
to the pump station.
[21] On 28 October 1977, Mr De Klerk wrote a letter to the School’s attorneys
stating , inter alia , the following:
“I/S: HOëRSKOOL MENLO PARK – POMPHUISIE :
…
Die terme van die ooreenkoms waarna u verwys is vir my
aanvaarbaar op die uitdruklike voorbehoud dat indien die
bestaande boorgat om een of ander rede sou opdroog en nie meer
die volume water verskaf wat dit tans verskaf nie, ek geregtig sal
wees om op enige ander plek op die Serwituut grond te boor, of te
laat boor vir water, en indien dit gevind word ‘n boorgat -pomp en
pomphuis op die nuwe boorgat op te rig .
‘n Verdere voorbehoud is dat ek redelike toegang tot die Serwituut
grond sal hê vanaf Lynnwoodweg, met ander woorde daar moet,
indien die bestaande draad verwyder word en met ‘n hoër of nuwe
draad vervang word ‘n hek regoor die pomphuis aangebring word
sodat ek my reg van toegang gerieflik kan uitoefen .
Indien die vermelde twee voorbehoude vir die skool aanvaarbaar is mag
hulle dan voortgaan om uitvoering aan ons ooreenkoms te gee.”
(Emphasis added)
[22] In essence, Mr De Klerk stated that should the borehole not deliver the
necessary yield or run dry, in terms of the servitude, he would be entitled to drill
another borehole and equip the same for the purposes of drawing water. He
further referred in his correspondence to his reasonable and convenient access
to the servitude from Lynwood Road which he advised s hould remain in place.
[23] On 3 October 1996, Mr De Klerk addressed a letter to the Municipality
wherein he referred to the servitude in a paragraph which reads as follows:
“Gedurende uitlegging van die voormelde dorpe het [M]nr Struben die
boorgat wat op die Menlo Park Hoërskool se gronde geleë is, behou en
‘n serwituut van waterpypleiding in die oorspronklike aktes opgeteken
ten gunste van erf 7[...] in terme waarvan die eienaar en opvolgende
eienaars van die eiendom geregtig is om water te pomp vanaf die
boorgat op die gronde van Menlo Park Hoërskool langs Lynnwoodweg
en oor die parkgedeelte aangrensend aan D ie Randstraat tot by
Erf 7[...].”
[24] In th e aforesaid correspondence Mr De Klerk also referred to fact that
some of the Municipal infrastructure work that was conducted ignored the said
servitude to the Trust’s detriment.
[25] On 4 March 1999, Mr De Klerk sent a letter to the Headmaster of
Hoërskool Menlo Park stating the following:
“I/S VODACOM MAS
Op versoek van Mnr Sakkie Burger verwittig ek u hiermee dat ek geen
beswaar het teen die Vodacom mas wat op die serwituut gebied langs
die pomphuis opgerig is nie. ”
[26] In the above mentioned correspondence, Mr De Klerk simply noted that
he had no objection to a Vodacom cell phone tower being erected in the
servitude area next to the pump station.
[27] On 6 September 2007, Mr De Klerk received a letter from the School,
wherein the School again acknowledged his borehole servitude rights.
Furthermore, even though mention was made of the relocation of the netball
courts and the erection of a new boundary wall, Mr De Klerk was given the
assurance that his rights would not be infringed upon and his access to the
servitude would remain intact . Attached to the letter was a sketch depicting the
pump station as well as the access gate that existed at that time. Mr De Klerk
was requested to sign the letter, which he duly did.
[28] The letter states, inter alia , the follow ing:
“I/s Netbalbane
…
Ons wil dit net graag bevestig dat met die verskuiwing van die
netbalbane en die oprigting van ‘n nuwe grensmuur ons nie u
belang t.o.v. die boorgat -pomp sal benadeel nie. Ons sal die stelsel
soos, in die verlede gebruik waar ons, ons slot vas aan u s in sal
sluit en dan behou u, u eie slot en sleutel wanneer die nuwe
skuifhek geïnstalleer is, sodat u nog steeds toegang tot die
boorgat, kan hê.
Ons voorsien u ook van ‘n plan van wat ons beoog om te doen ter insae.
Ons versoek u vriendelik om hierdie brief te onderteken en aan ons
terug te besorg. ” (Emphasis added)
[29] On 6 May 2009, Mr De Klerk addressed a further letter to the School.
This letter states, inter alia , the follow ing:
“Ek het toegestem tot die voorstel deur u gemaak op die uitdruklike
voorwaarde dat daar ‘n hek in Lynnwoodweg sal wees, waar ek direkte
toegang tot my pomphuis kan verkry.
Die nuwe muur aan die noordekant van die nuwe netbalbane is opgerig,
maar geen voorsiening is gemaak vir die installering van ‘n hek soos
ooreengekom nie.
Mnr Manie Geldenhuys het my meegedeel dat ek die hek by die
hokkievelde kan gebruik, maar dit is uiters ongerieflik. Dit is nie alleen
ver van die pomphuis nie, maar daar is ook voortdurend probleme met
die slot aan die hek by die hokkievelde wat verander word, wat meebring
dat ek dan geen toegang tot my pomphuis het nie, in besonder
gedurende vakansie periodes.
Ek versoek u vriendelik om asseblief toe te sien dat daar 'n hek
geïnstalleer word waar die vorige hek was, sodat ek gerieflik toegang tot
my pomphuis kan hê. ”
[30] In summary, in th e aforesaid letter again made reference to the direct
and convenient access that Mr De Klerk had to the pump house via Lynwood
Road. Mr De Klerk confirmed t hat the erection of a new wall had made no
provision for the installation of an access gate as was agreed upon and it seems
that one Mr Manie Geldenhuys of the School informed Mr De Klerk that he could
utilise the gate at the hockey field instead which he indicated would be extremely
inconvenient.
[31] On 5 August 2009, Mr De Klerk addressed another letter to the School.
In that letter he stated , inter alia, the following:
“Ons verwys na bogenoemde aangeleentheid en u skrywe van
September 2007 asook die telefoniese gesprek met mnr Manie
Geldenhuys op 21 Mei 2009 toe u voorgestel het dat u ’n
ingangshekkie in die skuifhek sal installeer in plaas daarvan om dit
in die grensmuur te doen.
In my skrywe van 22 Mei 2009 het ek hierdie voorstel aanvaar, maar
ek het nog niks verder van u in die verband verneem nie. Ek sal die
waardeer om dringend van u te verneem. ” (Emphasis added)
[32] In the aforesaid letter , reference was made to previous correspondence
exchanged and the agreement reached on installing a new access gate . Mr De
Klerk pointed out that nothing had happened since 22 May 2009 and requested
that the matter be addressed urgently .
[33] On 13 May 2011, Mr De Klerk again wrote to the School. He (again)
complained about the inconvenience of the access as provided by the School
and stated that the same w as inconvenient and not freely accessible. In this
letter , inter alia , the following was stated:
“…Die reëlings om gebruik te maak van die skuifhek is nog steeds nie
gerieflik en ten volle toeganklik vir my nie. So ook die klein hekkie wat in
die skuifhek voorsien is.
Nie alleen is die klein hekkie in die skuifhek baie ongerieflik wat betref
toegang tot die slot nie, maar is die hek ook ’n aansienlike afstand geleë
vanaf my pomphuis.
Toe die ooreenkoms aanvanklik aangegaan is, op 6 September 2007,
het ek ook soos sal blyk uit my skrywe van 6 September 2007,
toegestem tot die voorstel deur u gemaak op die uitdruklike voorwaarde
dat daar ’n hek in Lynnwoodweg sal wees, waar ek direkte toegang tot
my pomphuis sal kry. Ek het ook ’n laasgenoemde skrywe versoek om
asseblief toe te sien dat daar ’n hek geïnstalleer word waar die vorige
hek was, sodat ek gerieflik toegang tot my pomphuis kan hê.
Daar was verskeie geleenthede, veral oor lang naweke en vakansiedae
waar dit nie vir my moontlik was om toegang tot my pomphuis te verkry
nie. Dit was veral weer die geval tydens die onlangse paasvakansiedae
vanaf 22 April 2011 tot en met 3 Mei 2011, toe ek glad nie toegang tot
die pomphuis kon kry nie omrede daar ’n ketting aan die skuifhek
aangebring is met ’n nuwe slot waarvan ek nie ’n sleutel gehad het nie.
Die resultaat was dat ek die hele naweek nie toegang tot my pomphuis
gehad het nie. Eers op Saterdag die 30ste Mei 2011 kon ek ’n sleutel
van die terreinopsigter verkry om self ’n duplikaat laat maak van die
sleutel en toegang tot die boorgat te bekom.
Hierdie omstandighede is uiters ongerieflik vir my en enige lid van my
gesin, en ek sou beslis nie toegestem het tot die gebruik van die
servituut area waarop ek geregtig is, vir die netbalbane nie, indien ek
bewus was dat daar soveel ongerief vir my veroorsaak sal word nie.
Al wat ek wil hê is dat daar in die muur waar die ‘off ramp’ begin, ’n hek
geïnstalleer word, waaroor ek beheer het. ”
[34] In the aforesaid correspondence Mr De Klerk again complained about
the inconvenience of the access being provided by the School and stated that
the borehole and pump station were not freely accessible to him. He raised the
difficulty that over the long weekends and public holidays it was impossible for
him to obtain access to the pump station as the lock had been changed at the
access point and he did not have a key for that lock .
[35] On 11 July 2011, Mr De Klerk addressed a further letter to the School.
In this letter he thanked the Scho ol for installing a more convenient access gate
in Lynwood Road close to the pump station. The correspondence stated, inter
alia:
“Ek verwys na ons onlangse telefoniese gesprek en wens u te bedank
deurdat u ’n nuwe hek in Lynnwoodweg nader aan die pomphuis
geïnstalleer het. ”
[36] On 19 January 2012, Mr De Klerk again addressed a letter to the
School. In this letter he made reference to the fact that a contractor that had to
go out for purposes of attending a leak in the relevant pipeline, which required
some work to be conducted by a contractor , for which Mr De Klerk seemingly
held the School liable. This correspondenc e demonstrates that on some
occasions it is necessary to obtain the services of a contractor and such services
could involve and require access for a truck or heavy -duty vehicle to the pump
station and pipeline servitude. The letter states, inter alia , the following:
“Ek verwys u na die onlangse telefoniese gesprek wat ek met u [M]nr
Manie Geldenhuys gehad het asook die verskeie persoonlike gesprekke
wat ek met Hannes en Seef gehad het in verband met die waterpyp wat
vanaf my boorgat die water gelei na die sypaadjie in Lynnwoodweg, en
vandaar na my woning in die Die Randstraat.
Ek het gebruik gemaak van die dienste van Wikkies Pompe om te
bepaal waar die lekkasie van water voorgekom het.
In die teenwoordigheid van ’n werknemer van Wikkies Pompe en Seef,
het ons vasgestel dat die lekkasie onder die opgeboude oprit aan die
weste kant van die netbalbane is.
Ons het in oorleg met Seef, bespreek of ons die oprit moet opkap
alternatiewelik of ons die pypleiding moet herlei. Ons het die
laasgenoemde moontlikheid besluit en Wikkies Pompe het die nodige in
die verband gedoen.
Ek het letterlik ure spandeer om die leksels op te spoor, en ek is net
dankbaar dat ons ’n oplossing kon vind het.
Soos met Seef oorgekom, heg ek hierby aan die drie fakture, ...
Totaal R5 339-00.
Volgens Seef was die plastiese waterpyp onder die ‘ramp’ aanvanklik
gelé in ‘n staal koppeling.
Waar die lekkasie vandaan gekom het sal ‘n mens net kan vasstel,
indien die oprit en die plaveisel opgekap word….” (sic)
[37] The applicants’ Title Deed confirms that the applicants’ property is
entitled to the following condition:
“A. Portion 32 OF THE FARM HARTEBEESPOORT NO 362
Registration Division JR ( formally No 304) district Pretoria, (of
which the property hereby transferred is a portion) is S UBJECT and
ENTITLED to The Following Conditions:
(a) …
(b) at the cost of ten cents 10c per 20663,64 litres (payable
monthly) the Transferee, her Successors in Title or Assigns,
shall be entitled for use upon the said PORTION 32, to not
more than 1239818,10 litres of water per month from supplies
available in the existing borehole situated near the junction of
Lynnwood Road and Gars tfontein Road on the aforesaid
remaining extent of the said farm; FRANK EDWARD
BEATTIE STRUBEN shall erect such pumping plant as he
may deem necessary for the purpose aforesaid, and for his
own use, and the transferee, her successors in title or
assigns, shall use and operate such plant for the purpose of
pumping the aforesaid quantify of water and shall be
responsible for the maintenance thereof; and shall further be
obliged to deliver into the said FRANK EDWARD BEATTIE
STRUBEN’s reservoir situate [d] outside the Eastern boundary
of the said Portion 32, not more than 20663,64 litres of clean
water per week direct from the said borehole for the use of the
said FRANK EDWARD BEATTIE STRUBEN, his successors
in title or assigns, as varied by Notarial Deed N 0 633/1948 -S
dated 10 August 1948. ”
[38] In the Title Deed in respect of the School property, the following
restrictive title condition appears:
“A.(1) Subject to a servitude whereby EILEEN MARY CHAPMAN a
widow, (born on the 9th of May, 1906), and her successors in title
or assigns as owners of Erf Number 7[...], situate [d] on Main
Road, in the township of MENLO PARK EXTENSION No. 1,
District Pretoria, measuring 1,1411 (one comma one four one
one) hectares, and held by her by Deed of Transfer No.
27584/1945 dated the 3rd day of November, 1945, are entitled to
use upon the said erf not more than Sixty thousand (60,000)
gallons of water per month from supplies available in a borehole
existing on the 3rd November , 1945, and situate [d] near junction
of Lynnwood Road and Gars tfontein Road on the property
hereby transferred; which servitude is to be enjoyed subject to
certain conditions , as m ore fully set out in Notarial Deed N o.
633/1948S dated the 10th day of August, 1948. ”
[39] On 22 January 2019 , after the applicants became the registered owners
of the property, it was necessary to engage the services of an attorney because
the School decided to cause new boreholes to be drilled adjacent to the
applicants’ servitude area but in the applicants’ aquifer, without the applicants’
consent.
[40] In a letter dated 22 January 2019, the applicants’ attorneys, Dr TC Botha
& Prokureurs , demanded that the School cease the drilling operation and that it
undertake not to equip the new boreholes in order to utilise the same. At that
stage, the applicants’ attorneys threatened the School with an urgent application
if the School was to persist with the unlawful conduct. The School was advised
that the applicants would appoint an expert, Dr Roger Diamond (“Dr Diamond”)
of the University of Pretoria to conduc t tests on the applicants’ borehole in order
to determine its yield and the possibility of it being detrimentally influenced by
any new borehole in close proximity. It was pointed out that if the applicants’
access to the servitude area was hampered in future a court would be
approached to protect the applicants’ rights.
[41] In response to t he aforesaid letter, the School’s attorneys provided the
undertakings as sought and it was therefore not necessary to approach a court
at that time.
[42] In the interim, Dr Diamond was appointed to do the necessary
investigation and compile an expert report on the applicants’ borehole and the
possible impact that would result if new boreholes were being drilled and utilised
in close proximity to each other.
[43] On 1 February 2019, an email was addressed by the applicants’
attorney , Conrad Botha (“Mr Botha”) to the School’s attorney s. In this
correspondence , inter alia , the following was stated:
“Na verwagting sal die Landmeter se verslag beskikbaar wees teen
Woensdag 6 Februarie 2019. Verder, soos reeds aangedui, wag ons
kliënt op die verslag van Dr Roger Diamond welke verslag aanduidend
sal wees van die negatiewe impak wat u kliënt se boorgat (gate 1 and 2)
sal hê op ons kliënt se waterlewering in ag genome die feit dat u kliënt
se boorgat in ons kliënt se hoof water aar gesink is.
Wat betref die gate van u kliënt reeds geboor het bestaan die dispuut
slegs rondom boorgate 1 en 2 en nie rondom boorgat no 3. ”
[44] On 28 March 2019 , the applicants’ attorneys addressed a letter to the
School’s attorneys , Anders Ingelyf . A copy of the expert report of Dr Diamond
was attached and the content thereof were also brought to the School’s
attention. In the paragraph titled “ Conclusions and Recommendations ” the
following was stated by Dr Diamond :
“Conclusions
Within hundred segments of pumping at 2 L/s from the old farm
borehole, the newly drilled boreholes began to show a drop in water
level. This confirms that the three boreholes draw water from the same
aquifer. Pumping from any one of them will cause a drawdown in the
water level in the other two.
The smooth profiles of the drawdown curves suggest the primary
porosity aquifer. There is no indication of fracture flow. This means the
effects of pumping will be roughly equal in all directions from the
pumping borehole.
After 5 hours of pumping 2 L/s, the old farm borehole was almost empty.
This is an unsafe pumping rate. A rate of 0.5 L/s is probably a ‘safe
yield’. Safe yield is that which can be pumped continuously without
damage to the borehole, pump or aquifer. The ‘unsustainable yield’ is
usually lower than the safe yield, as this considers the broader
environment and other water users. A reliable sustainable yield cannot
be given after this limited amount of work.
Recommendations
To estimate a sustainable yield, a water balance calculation for the area
will have to be done, using rainfall, runoff, recharge estimates and so on,
and including a hydrocensus of all groundwater users in the area (1 -2
km radius).
Monitoring of water usage should be done. This includes pumped
groundwater, as well as any additional irrigation from municipal supply.
Monitoring of water levels in boreholes should be done monthly. These
should ideally be monitoring boreholes, where no nearby pumping has
taken place in the previous 2 -3 days. If only pumping boreholes can be
accessed, then ideally a week of no pumping should proceed the water
level measurements. In addition, rainfall should be monitored.
Water quali ty may also be an issue. Typical concerns in this setting are
septic tanks, leaking sewer pipes, dirty runoff from roads or workshops,
nutrients (nitrate, phosphate, et c.) from fertilisers and petrol filling
stations. Groundwater users need to be aware of such risks. ”
[45] A confirmatory affidavit by Dr Diamond was also filed on behalf the
applicants confirming the content of his report .
[46] Although the applicants initially though t the new boreholes had been
drilled in the servitude area, they later realised that the new boreholes were
drilled just outside of the servitude area but advised that this didn’t detract from
the findings of Dr Diamond and the severe detrimental impact it would have had
on the existing boreholes.
[47] In response to the correspondence and the expert report, a letter was
received from the School’s attorneys , Anders Incorporated, dated 2 April 2019
enquiring about a report from Mr Retief Strydom and suggesting a round table
conference . Thereafter, t he School appears to have appointed Boshoff
Incorporated Attorneys (“Boshoff Inc.”) to deal with the matter.
[48] In early March 2021, the applicants became aware that they were
deprived of their free and unrestricted access to the pump station and servitude
area as a result of the School unilaterally locking both the access gates (the
pedestrian gate as well as the vehic le access gate), which access gates had
been used for a number of years by the applicants to obtain access to the
servitude area.
[49] On 11 March 2021, t he applicants ’ attorneys addressed a letter to
Boshoff Inc. In the letter, it was confirmed that the applicants had been deprived
of access and a photograph was attached demonstrating the peg that had been
driven into the ground preventing use of the convenient gate which the
applicants had usually used. It was demanded that the School restore the
access by no later than Friday, 12 March 2021 , failing which urgent application
proceedings would be brought . On the same day , a short email was received
from Boshoff Inc . stating that they had taken notice of the letter and w ere
awaiting feedback from the School.
[50] On 12 March 2021 , a further email was received from Boshoff Inc. – In
this email, the writer apologised for the School’s actions and indicated that, as a
result of an internal oversight, notice had not been given to the applicants of the
steps that had been taken by the School .
[51] The aforesaid email reads as follows:
“More Conrad,
Ek vra o nverskoning vir wat soos ’n eensydige handeling kon lyk vir julle
welke nie die geval was nie. Die skool het ’n skrywe aan my gestuur wat
ongelukkig nie deur my vroegtydig, as gevolg van interne oorsig,
aangestuur was aan u nie. Ek heg die skrywe se inhoud hierby aan vir u
kennisname. Die sluit van die hekkie is geensins gemik daarop om u
regte op inbraak te maak nie.
‘’Beste Dr en M nr Botha,
as deel van ’n vernuwingsprojek, verhoogte misdaad en
inbrake by openbare skole en die vereiste streng
toegangsregulasies ten aansien van die C ovid-19 pandemie,
bou die skool tans ’n nuwe heining in Lynnwoodweg. Ons wil
julle graag hiermee in kennis stel dat die bestaande
toegangshekkie in Lywoodweg om bestaande redes sal
verdwyn.
Daar sal steeds toegang wees tot die boorgat.
Vir roetien -onderhoud kan toegang 24 uur vooraf gereël word
met die hoof van sekuriteit by die skool, mnr Hannes
Lombaard ( 0[...]) of die terreinbestuurder, mnr Mathys
Buitendag ( 0[...]).
Skakel ons vir mnr Lombaard as daar dringende toegang na -
ure nodig is. Hy is voltyds op terrein .’
Ek vertrou u vind bogenoemde in orde en vra weereens omverskoning
vir die oorsig in kommunikasie na u. ” (Emphasis added)
[52] In the notice the applicants are advised that the access gate in
Lynnwood Road would be totally removed and a new fence was being erected
as a result of , inter alia , increased crime and break -ins at public schools as well
as the strict Covid 19 regulations. Of significance is that this was the first time
that the School had not engaged in discussions to try and reach agreement
about access measures to be put in place as a result of changes which needed
to be implemented .
[53] I interpolate to point out that, with reference to the Rule 34 tender which
is dealt with under a separate heading below, this may have been the ideal time
to negotiate a possible solution to ensure continued unfettered access by the
applicants but which would ensure no access to the school grounds.
[54] On 15 March 2021, a further letter was received from Boshoff Inc.
stating, inter alia , that:
“SPOLIATION
…
1. We take note of your client’s intention to proceed with an urgent
spoliation application against our client. We confirm that our
client’s conduct was not intended on depriving your client of his
rights with regard to the servitude and we place on record that our
client’s conduct was not unlawful.
2. Our client is a public -school governed by a governing body whose
functions, obligations and powers [are] regulated by the South
African School’s Act of 1996 and the regulations thereto. The
governing body is obliged to manage the school and their limited
functions with regard to the property upon which the school is
erected, in accordance with the said Act.
3. The governing body has responsibility to ensure safety of the
learners, educators and other staff admitted to the school and they
are guided by the Constitution, the Children’s Act and the School’s
Act with regard to the best interest of the children in a school. In
all actions concerning children the best interest of a child must be
the primary consideration and the governing body of our client is
guided by this principle when making decision.
4. We confirm that the school occupies the property owned by the
Government of South Africa and all the rights and obligations with
regard to the property is conveyed upon our client in terms of the
South African School’s Act.
5. As you are aware, the safety of the learners [is] one of the main
factors it considers when acting in the best interest of children. The
governing body is prohibited to allow any activity on school
property that is hazardous or disruptive to the learners. In terms of
the regulations for safety measures at public schools, no person
shall enter the school premises without permission of the Principal
or the Head of the Department.
6. The governing body is obliged to continuously develop action plans
to counter threats of violence and to ensure the safety of learners,
staff and educators during school activities. They are also required
to adapt their action plans for the safety of the learners as
circumstances change and new threats to the safety and health of
the learners come to light.
7. You are also referred to the regulations regarding covid 19
protocols in schools, attached hereto for your ease of reference.
The school must adhere to these regulations. Should your client
require access to the school, the proper screening for covid 19
symptoms would have to be done. Our client implements these
regulations not only because of their legal obligations but also
because of their commitment to the best interests of their learners.
8. In light of the above, our client will act unlawfully by allowing your
client unauthorised and unsupervised access to the school’s
property. All persons who require access to the school require
permission to do so prior to accessing the school, not only your
client. Your client’s right to access the property to maintain the
borehole is ancillary to the right given by the registered servitude.
Your client’s rights must be exercised reasonably ( civiliter modo ).
9. We place on record that our client did not deprive your client of the
right to draw water from the borehole and our client did not refuse
access by your client for maintenance purposes. Our client
received no notice or request from your client to access the
school’s property. We are of the opinion that our client’s request
that your client give reasonable notice to access the property and
your client’s legal obligation to obtain prior authorisation, is lawful
and reasonable. ”
[55] Although there was reference in the above letter to a “ proposed
agreement ”, none was reached.
[56] This application was launched on 5 May 2021 in the ordinary course. In
the founding affidavit, the first applicant explained that the application would only
be rendered urgent if the applicants required immediate access to the pump
station, borehole or pipeline situated in the servitude area .
[57] Before dealing with the merits of the application and the counter
application, it is necessary to h ave regard to the relevant legal provisions and
authorities.
C. RELEVANT LEGAL PROVISIONS AND AUTHORITIES IN MAIN
APPLICATION :
(a) Spoliation :
[58] It is trite that spoliation is a robust remedy and the rule spoliatus ante
omnia is absolute.1
[59] To succeed with spoliation relief, an applicant must allege and prove:
[59.1] that it was in peaceful and undisturbed possession of the
property or ha s a real right ;2
[59.2] there has been the unlawful deprivation of the property by the
respondent. “Unlawful” , in this context, refers to dispossession
without the applicant’ s consent or due legal process.3
[60] Partial deprivation of possession is sufficient to warrant the grant of
spoliation order.4
[61] If the application is brought within a year of the active spoliation, special
circumstances have to be present for the relief to be refused merely on the basis
of excessive dela y.5
1 Le Riche v PSP Properties CC 2005 (3) SA 189 (C) at 193G (“ Le Riche”) .
2 Amler’s Precedents of Pleadings (9th Edition) (“Amlers ”), p 341, and Impala Water Users
Association v Lourens N.O. 2008 (2) SA 495 (SCA).
3 Amler’s , p 341 ; and George Municipality v Vena 1989 (2) SA 263 (A) at 269D – 272C .
4 Van Rooyen v Burger 1960 (4) SA 356 (O) at 363.
(b) Requirements for final interdictory relief :
[62] The requirements for the right to claim a final interdict are:6 (i) a clear
right; (ii) an injury actually committed or reasonably apprehended; and (iii) the
absence of similar protection by any other ordinary remedy.
[63] Whether or not one has a “ clear right ” is a matter of substantive law.7
[64] The term “ injury ” must be understood to mean infringement of the right
which has been established and results in prejudice.8
[65] Prejudice is not synonymous with damages and it is sufficient to
establish potential prejudice.9
[66] The discretion of the court to refuse a final interdict, provided the
abovementioned three requisites are present, is very limited10 and depends
exclusively upon the question whether the alternative remedy is adequate.11
(c) Interpretation :
[67] In Natal Joint Municipal Pension Fund v Endumeni Municipality (“the
Endumeni case”)12 the Supreme Court of Appeal (“SCA”) , per Wallis JA,
summarised the legal principles of interpretation and stated, inter alia , that:
[67.1] interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the
5 Le Riche , para [25] at 198D/E.
6 Setlogelo v Setlogelo 1914 AD 221 at 227 (“ Setlogelo ”).
7 Minister of Law & Order, Bophuthatswana v Committee of the Church Summit of
Bophuthatswana 1994 (3) SA 89 (BG) at 97 -98.
8 Setlogelo at 221.
9 Capital Estate and General Agencies (Pty) Ltd & Others v Holiday Inns Inc. and Others
1977 (2) SA 916 (A) at 930 -932.
10 Tvl Property and Investment Co Ltd v Reinhold & Co v SA Townships Mining & Finance
Corporation Limited and the Administrator 1938 TPD 512 at 521.
11 Setlogelo at 221 and 227.
12 2012 (4) SA 593 (SCA) at para [18].
document as a whole and the circumstances attendant upon its
coming into existence;
[67.2] whatever the nature of the document, consideration must be
given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material
known to those responsible for its production. Where more than
one meaning is possible each possibility must be weighed in the
light of all these factors;
[67.3] the process is objective, not subjective;
[67.4] a sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent
purpose of the document; and
[67.5] Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or
businesslike for the words actually used as to do so in regard to
a statute or statutory instrument is to cross the divide between
interpretation and legislation.
[68] In Bothma -Batho Transport (Edms) Bpk v S Bothma & Seun Transport
(Edms) Bpk13, the SCA referred with approval to Endumeni case and indicated
that, in interpreting a document, whilst the starting point remains the words of the
document, which are the only relevant medium through which the parties have
expressed their contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words, but considers them in the light of
all relevant and admissible context, including the circumstances in which the
document came into being. The former distinction between permissible
background and surrounding circumstances, never very clear, has fallen away.
Interpretation is no longer a process that occurs in stages but is essentially one
unitary exercise.
(d) Relevant provisions of the South African Schools Act and the
Regulations promulgated thereunder :
13 (802/2012) [2013] ZASCA 176 , para [12].
[69] According to the School, changing circumstances , including the need to
comply with the provisions of the South African Schools Act and the R egulations
promulgated thereunder made it necessary to change the manner in which the
applicants had previously accessed the School property .
[70] in particular, the School relies on the need to employ measures to
ensure the safety of the learners, personnel and parties lawfully attending the
premises and submit s that this justifies the implementation of the measures
suggested by it to regulate the applicants ’ rights in respect of the servitude.
[71] The court was , inter alia , referred to the provisions of sections 16(1),
20(1)(g), 21(1) and the Regulations promulgated by the Minister of Education in
terms of section 61 of the South African Schools Act for Safety Measures at
Public Schools in terms of Government Gazette Notice 1040 published in
Government Gazette No. 22 764, dated 12 October 2001 , which came into effect
on 12 October 2001 (“the Safety Regulations”).
[72] Section 16(1) of the South African Schools Act reads as follows:
“6 Governance and professional management of public schools
(1) Subject to this Act, the governance of every public school is
vested in its governing body and it may perform only such
functions and obligations and exercise only such rights as
prescribed by the Act. ”
[73] Section 20(1)(g) of the South African Schools Act provides as follows:
“20 Functions of all governing bodies
(1) Subject to this Act, the governing body of a public school
must -
…
(g) administer and control the school's property, and
buildings and grounds occupied by the school, including
school hostels, but the exercise of this power must not in
any manner interfere with or otherwise hamper the
implementation of a decision made by the Member of
the Executive Council or Head of Department in terms of
any law or policy; ”
[74] In terms of Regulation 1 of the Safety Regulations ,
“HOD ” means the “Head of the Education Department in the Province ” and
“Public School Premises ” is defined to include “ a building, structure, hall, room,
office, convenience, land enclosure, which is under the control of a public school,
to which a member of the public has a right of access, or is usually admitted, or
for which he or she may be admitted ”.
[75] Regulation 5 of the Safety Regulations is titled “ Access to public school
premises ” and provides , inter alia , as follows:
“(1) Subject to the Constitution, laws and national and provincial
policies, the HOD or principal of any public school may and for
such timeframes as may be necessary -
(a) take such steps as he or she may consider necessary for the
safeguarding of the public school premises, as well as for the
protection of the people therein; and
(b) direct that the school may only be entered in accordance with
the provisions of subregulation (2). ”
[76] Regulation 6 of the Safety Regulations is titled “ Exemption of certain
persons ” and provides as follows:
“6. Exemption of certain persons
The provisions of regulation 5 do not apply in respect of any
member of a police service established by or under any law, a
member of the South African Defence Force , the Minister of
Education, the Minister of the Executive Council responsible for
education in a province or an official of the Department of
Provincial Departments of Education who is required in the
performance of his or her functions to enter or enters upon any
public school premises and it produces proof of his or her identity
to the satis faction of the principal or HOD concerned. ”
[77] Regulation 8A is titled “ School activities ” and Regulation 8A(2) provides
as follows:
“(2) a public school must take measures to ensure the safety of
learners doing any school activity including –
(a) ensuring against accidents, injuries, general medical
expenses, hospitalisation and theft that may occur, depending
on the availability of funds; …”
[78] Regulations 9(5) and 9(6) of the Safety Regulations provide as follows:
“(5) Public schools must develop action plans to counter threats of
violence which have the potential to have a negative impact on
school activities and to implement regulation 4(1).
(6) The plans in subregulation (5) must ensure the safety of all
learners, staff members and parents during school activities. ”
[79] The respondents further referred to the responsibility of the School and
the Governing Body to ensure the safety of learners, educators and other staff in
terms of the Constitution and the Children’s Act , 38 of 2005 . Furthermore, it was
stated that in all action s concerning children the best interest of a child must be
the primary consideration and that is the guiding principle of the School w hen
making any decision.
(e) Applicability of the City of Tshwane Metropolitan Municipality:
Water Supply Bylaws :
[80] The School’s counsel argued that Bylaw 59 which had been published
by the City Manager of the City of Tshwane Metropolitan Municipality in terms of
sections 5 and 6 of the Local Government: Municipal Property Rates Act, 6 of
2007, read with section 7 of the Gauteng Rationalisation of Local Government
Act, 10 of 1998, section 13 of the Local Government Municipal Systems Act, 32
of 2000 and section 162 of the Constitution , demonstrated that the applicants
use of the borehole water is unlawful .
[81] Bylaw 59 reads as follows:
“59(1) No person may use or permit the use of water from a source
other than the water supply system except for a rainwater
tank that is not connected to a water installation, provided
that –
(a) the prior written consent of the Engineer has been
obtained for the use of water from a source other than
the water supply system or rainwater tank, as the case
may be ; and
(b) the use of water is in accordance with the conditions that
the Municipality may impose for domestic, commercial or
industrial purposes .”
[82] A “water supply system ” is defined in the Bylaws to mean:
“…the water supply system of which ownership vests in the Municipality
and which is used or intended to be used by the Municipality in
connection with the supply of water, and includes the structures,
aqueducts, pipes, valves, pumps, meters or other apparatus relating to
the water supply system and any part of the water supply system.”
[83] A “water installation ” is defined in the Bylaws to mean:
“…the pipes and water fittings which are situated on any premises and
ownership of which vests in the owner of the premises and which are
used or intended to be used in connection with the use of the water on the
premises, and includes a pipe and water fitting situated outside the
boundary of the premises, which either connects to the connection pipe
relating to the premises or are otherwise laid with the permission of the
Municipality.”
[84] Bylaw 59 which is relied upon by the School falls under Part 9, Chapter
V, which pertains to “ unauthorised water supply service s”.
[85] The applicants’ counsel referred the Court to the fact that “ Boreholes ”
are dealt with under Part 8, Chapter V.
[86] Bylaw s 39(1) (a) and 39(3) provide for the “ Notification of boreholes ” and
read as follow s:
“39.(1) In respect of any area of the Municipality, the Municipality may
by public notice require –
(a) the owner of any premises on which a borehole exists or, if
the owner is not in occupation of the premises, the occupier
of the premises to notify the Municipality of the existence of
a borehole on the premises and to provide it with such
information about the borehole as it may require; …
(3) In respect of an owner or occupier of premises who has an
existing borehole on the premises that is used for water supply
services, the Municipality ay by notice to the owner or occupier or
by public notice –
(a) require the owner or occupier, as the case may be, to obtain
approval from the Municipality for the use of the borehole for
potable water supply services in accordance with sections 6.7
and 22 of the Act; and
(b) impose conditions in respect of the use of the borehole for
potable water supply services. ”
D. RELEVANT LEGAL PROVISIONS AND AUTHORITIES RELATING TO
THE COUNTER APPLICATION :
[87] The counter application was brought based on section 133 of the Water
Act. Section 133 of the Water Act provides as follows:
“133 Cancellation of servitude
An owner of land subject to a servitude of abutment, aqueduct or
submersion may -
(a) if the relevant authorisation associated with the servitude is
terminated;
(b) if the rights and obligations in respect of the servitude have
not been exercised on the land subject to the servitude for
a continuous period of three years; or
(c) for any other lawful reason, apply to a High Court for the
cancellation of that servitude. ”
[88] Counsel for the School referred me to De Kock v Hänel and Others ,14
where the court was faced with the argument that once the utility for which a
servitude was created no longer exists, the servitude itself ceases to exist. The
court stated the following in this regard:
“The issue of utilitas was carefully canvassed by both counsel. Mr Sholto -
Douglas appeared to argue as follows: Once the utility for which a
servitude is created no longer exists the servitude itself ceases to
exist. This principle referred to as a requirement of utilitas demands that
the servitude must offer some permanent benefit to the dominant
tenement and not merely serve the personal pleasure or caprice of the
owner of the land. ”
[89] The School’s counsel also referred me to Pickard v Stein and Others15
where the court considered whether a pra edial servitude had fallen away
because it no longer had any utility. In doing so, the court referred to the
following statement of the SCA in Linvestment CC v Hammersley and Another
(“Linvestment ”)16.
“[31] I am persuaded that the interests of justice do indeed require a
change in our established law on the subject. The rigid enforcement of a
servitude when the sanctity of the contract or the strict terms of the
grant benefit neither party but, on the contrary, operate prejudicially on
one of them, seems to me indefensible. Servitudes are by their nature
often the creation of preceding generations devised in another time to
serve ends which must now be satisfied in a different environment.
Imagine a right of way over a farm portion registered fifty years ago.
Since then new public roads have been created providing new access to
the dominant tenement, the nature of the environment has changed, the
contracting parties have long gone. Why should a present owner, on no
rational ground, be entitled to rely on his summum ius derived from the
alleged sanctity of a contract or a grant or prescriptive acquisition to
which he was not privy. Properly regulated flexibility will not set an
14 1999 (1) SA 994 (C) at 998 F -G.
15 [2014] 3 All SA 631 (GJ).
16 2008 (3) SA 283 (SCA), para [31] at 292 E/F .
unhealthy precedent or encourage abuse. Nor will it cheapen the value
of registered title or prejudice third parties. ”
E. MERITS OF THE MAIN APPLICATION :
[90] The applicants allege, inter alia , that:
[90.1] the conduct of the School amounts to spoliation (or at least
partial spoliation) and constitutes an infringement of the
applicants’ rights in terms of the Notarial Deed of Servitude;
[90.2] it is “ cold comfort to the applicants that 24 hours’ notice must be
given to obtain access and a Mr Lombaard should be contacted
on his cell phone if urgent access is required ”;
[90.3] the School has deprived the applicants “ of the convenient
access situated close to the pump station and servitude area
and not only is it impossible for [the first applicant] to obtain
access through the pedestrian gate, but it is also impossible for
any vehicles or maintenance trucks to have access to the
servitude area to, in case of an emergency, attend to any
difficulties encountered at the pump station ”; and
[90.4] officials of the Municipality, by virtue of the School’s conduct,
can also not obtain access to the aforesaid electricity meter and
will not make contact with either Mr Lombaard or Mr Buitendag
in order to obtain access for purposes of reading the electricity
meter.
[91] What is clear from the chronology of events and common cause facts
listed by the parties is that there is no dispute that: (i) there is a borehole
servitude registered in favour of the applicants over Portion 43 (which forms part
of the School property); the applicants have been the registered owners and
occupiers of the applicants’ property since 27 August 2015 (i.e. for almost 9 and
a half years); (iii) from 1977 to up until March 2021, the School acknowledged
and accepted the applicants’ and their predec essor in title’s rights in terms of the
servitude and from time to time reached agreement to ensure convenient and
unfettered access to the applicants or their predecessors in title to the servitude
tenement ; and (iv) from March 2011, the School unilaterally changed the
conditions of access without any consultation , consent or due process , but still
undertook to provide the applicants with access to the servitude tenement.
[92] In explaining the change in stance in providing unfettered access to
Portion 43, the School relies on the Governing Body’s and Principal’s
responsibility to protect the safety of the children and teachers in terms of the
Constitution, Children’s Act and the need to comply with the provisions of South
African Schools Act and the Regulations promulgated thereunder. Although, the
applicants contend that these are irrelevant considerations, I do not agree. I am
of the view that they are considerations which m ay require a different approach
to how the servient tenement can be accessed. The School also referred to
restrictions that arose as a result of the Covid 19 pandemic but those
considerations are no longer relevant. Having said that, the Covid 19 pandemic
undoubtedly changed the way people lived their daily lives and required strict
access control to avoid the virus spreading .
[93] What is apparent from the correspondence is that over time, since 1945,
the landscape changed and there were agreements reached to allow for
changes, such as, for example, the building of netball courts and the building of
new boundary walls. All of these changes, at least until March 2021, were
effected after consultation with the applicants or their predecessor in title.
[94] It is also apparent that from time to time there were complaints when
convenient access was interrupted, i.e. where reference was made by Mr De
Klerk to l ocks being changed , him being requested to use alternative gates or
the inability to access the servitude tenement over holiday weekends.
(a) Technical arguments raised on behalf of the School :
[95] The School raised various technical points, some of which were
addressed by the applicants in the replying papers and were not persisted with
at the hearing.
[96] The first challenge was that the applicants had no cause of action. This
argument was based on the fact that there was an erroneous reference to the
servitude being registered in respect of the Remainder of Erf 7[...] and not
Portion 43. This was rectified in the replying papers and by means of the
amended notice of motion and was not persisted with.
[97] The second challenge was the non -joinder of the seventh respondent.
This was also addressed by the applicants by bringing an application for joinder,
which was unopposed and the joinder was granted at the commencement of the
hearing.
[98] The third challenge was that the spoliation relief had been rendered
moot because there was a delay in having the matter heard until November
2023.
[99] The School submitted that although the SCA in Le Riche considered the
period between the act of dispossession (which in this case was 11 March 2021)
and the bringing of the application (which in this case was 5 May 2021) , by parity
of reasoning the applicants ’ election not to “ expeditiously prosecute the
application ” rendered the relief moot. I do not agree. The dispossession came
to the applicants’ knowledge on 11 March 2021 and this application was brought
on 5 May 2021 (i.e. in less than 2 months). Th ere can be no question of the
applicants displaying a state of mind which demonstrated acquiescence of the
alleged disturbance of their possession. The applicants have, in my view,
provided an adequate explanation for not proceeding with an urgent application.
Absent grounds for urgency, the applicants were wisely advised not to bring the
matter as an urgent application.
[100] The fourth argument advanced by the School is that the relief sought in
terms of the mandament van spolie is rendered moot by the further prayers for a
final interdict. The respondents’ argument that the spoliation relief would
somehow be “subsumed through the determination of the substantive relief
sought” is also, in my view, unsustainable. Spoliation relief is aimed at restoring
possession (whether partial or not) whilst the interdictory relief sought is very
specific and is aimed at achieving a differ ent result. These forms of relief also
have their own distinct requirements.
[101] In the circumstances, I am of the view that there is no merit in the
technical arguments raised by the School .
(b) Spoliation relief :
[102] Turning to the spoliation relief, t he correspondence demonstrates that
until March 2021, the applicants utilised a pedestrian access and a larger access
gate to accommodate vehicl e access.
[103] I agree with the applicants that the fact that they had unrestricted and
undisturbed access until March 2021 is not disputed in any meaningful way.
[104] It is common cause that access to the pedestrian access and vehicl e
access were removed as a result of the School placing new conditions on how
access could be achieved. Having said that the School did still say that access
would be provided, albeit under different conditions.
[105] It would also appear that , despite some disagreements over time and
this dispute, throughout the applicants ’ occupation of their property they have
obtained water from the borehole.
[106] I am of the view that , in this instance, there has only been partial
deprivation of possession without consent or due legal process and that the
requirements of spoliation have been met.
[107] Having said that, the question that arises is wh at the court is to make of
the safety concerns raised by the schools as a result of increased crime and
theft at public schools and the fact that the Governing Body and Principal must
act in accordance with certain legislation in protecting the safety of children and
staff and , in doing so, act in the best interest of the children? In my view, just as
changes to the manner of access were rendered necessary due to other issues
and development s at the school, s afety concerns and legislation promulgated
over the years could also justify a change in the way access is given. In this
sense, the alternative relief in the counter application is somewhat intertwined
with the question of whether unfettered access should be given or should be
restricted as requested by the applicant. I deal with this in more detail below
when I deal with the counter application.
[108] In this regard, I wish to make it clear that ther e is no evidence of the
applicants ever having done anything to jeopardise the security of children or
safety of anyone at the school. However, unfortunately, in this day and age, one
cannot exclude the possibility , in circumstances where crime is said to have
increased in the area, that the access key in the possession of the applicants
could be taken and / or be innocently misplaced or lost and/or be utilised by an
unknown person.
[109] The Court accordingly needs to weigh the interests of the School
(including safety of pupils and staff) and the applicants (having unfettered access
to the servitude tenement as opposed to having access subject to reasonable
conditions ) in reaching a decision on the terms of access. I deal with this in
more detail below where I address the alternative relief sought in the counter
application.
(c) Interdictory relief :
[110] In the original notice of motion and the amended notice of motion the
applicants sought an interdict in the following terms:
“Prohibiting the drilling or utilisation of any new borehole or the drawing
of water from the same aqua fer which may detrimentally affect the yield
of the applicants’ borehole servitude; …” (Emphasis added)
[111] According to the School, in the replying affidavit, there is a partial
abandonment, alternatively a refinement of the prayer in that the applicants
concede that the drilling of boreholes in itself is not the issue, instead, it is the act
of drawing water from the specific aqua fer which would detrimentally impact the
applicants’ yield. In this regard , the court was referred to:
[111.1] paragraph 6.44.2 of the replying affidavit which reads as follows:
“Although the school is entitled to drill new boreholes
outside the servitude area, it is precluded from doing so if
the water abstraction from such new boreholes would
detrimentally affect the applicants’ rights in terms of the
borehole servitude.”;
[111.2] paragraph 6.48.3 of the replying affidavit which reads as follows:
“The school is entitled to drill as many boreholes it wishes
outside the servitude area, but the abstraction of water
from those boreholes may not infringe upon the applicants’
rights vesting in the borehole servitude.”
[112] I do not read the relief sought as quoted above as being restricted or
refined by the quoted paragraphs. The question is whether new boreholes
drilled or utilised by the school will or could detrimentally impact upon the
applicant’s rights under the servitude .
Clear right
[113] Turning to the requirements to succeed with interdictory relief, the
School ’s main attack is that the applicants have not established a clear right .
The School further indicates that the clear right “ has not been articulated beyond
a broad reference to the wording of the registered servitude .”
[114] In this regard , the applicants and the School confirm ed that what is
required is an interpretation of the servitude in line with the principles of
interpretation summarised by our Courts , including Endumeni .
[115] Counsel for the applicants also referred me to Unica Iron & Steel (Pty)
Ltd and Another v Mirchandan17 where the SCA stated that the way in which the
parties to a contract carried out their agreement may be considered as part of
the contextual setting to ascertain the meaning of a dispute term as the parties’
subsequent conduct may be probative of their common intention at the time they
made the contract.
[116] According to the School, the applicants’ right as the dominant tenement
to the yield of the aqua fer is not an unqualified one “nor is it on equal footing with
17 2015 (2) SA 307 (SCA) at para [21].
that of the servient tenement” . As a result of the use of the words “from supplies
available” it is submitted by the School to be clear and unambiguous .
[117] According to the School , the applicants have a right to the yield of the
aquifer from whatever supplies are available and submit that this does not
prohibit abstraction from any other boreholes nor does it infer a minimum
entitlement or unlimited entitlement but quite the opposite : It illustrates a
conditional right in terms of both payment and maximum use. According to the
School , the applicants have also failed to show compliance with the payment
condition which would create a right of abstraction upon which an interdict may
be based and have further failed to provide any basis upon which they would be
entitled to a minimum yield of some kind.
[118] In my view, if interpreted in a sensible and businesslike manner and in
light of the context (and the parties’ conduct over the years), there can be no
doubt that the registered servitude provides the applicants with a clear right to
extract a maximum of 1 239 818.10 litres of water from the borehole per month
The right does not only arise upon proof of payment.
[119] The School has dealt with the issue of a clear right separately with
reference to the different nature of the interdicts sought: (i) the first interdict is
aimed at prohibiting drilling or utilisation of any new borehole or the drawing
water from the same aquifer which may detrimentally affect the yield of the
applicants’ borehole servitude (put differently, it will result in it not being able to
obtain its maximum amount of water per month to which it is entitled in terms of
the servitude ); (ii) the second interdict is aimed at impeding in any way or
restricting the applicants’ “ undisturbed access ” to their borehole pump station
and pipeline; and (iii) the third interdict is aimed at impeding in any way or
restricting the Municipality’s access to the Applicant’s electricity meter ( 1[...]).
[120] All of the interdicts sought flow from the clear right the servitude
provides. Having said that I am of the view, for reasons already explained above
that it may be necessary to regulate the access and restrict “unfettered ” access .
[121] Insofar as School’s reliance on Bylaw 59 is concerned, it argues that: (i)
no person may use, or permit to be used, potable water obtained from any other
source than the Municipality’s water supply system for domestic use; (ii) water
from other sources, such as boreholes, may only be used as a potable water
source with permission from the Municipality; (iii) as the applicants use the water
extracted from the borehole for domestic use and not merely to irrigate the
garden, they are, on their own version, dis connected from the Municipality’s
water supply system; and (iv) the applicants do not have permission from an
Engineer to do so; and (v) the use of water for domestic purposes from the
borehole is an offence.
[122] Counsel for the School further argued that: (i) the responsibility to
comply with Bylaws rests squarely on the shoulders of the applicants and
referred the Court to Bylaw 65 in this regard; (ii) the owner of the premises is
responsible for en suring compliance with the Bylaws in respect of all or any
matters relating to any water installation on the premises; and (iii) the relevant
owner would be the owner of the premises where the transgression takes place.
[123] Counsel for the applicants pointed out that Bylaw 59 falls under Part 9,
Chapter V , and pertains to “ unauthorised water supply services ” and that, as
neither the School nor the applicants supply water services, it is not relevant.
Furthermore, it is common cause that the applicants’ borehole has been utilised
for decades and long before bylaw 59 came into operation in 2014 and based on
the presumption that legislative provisions do not have retrospective effect, “ prior
written consent ” could not find appli cation. I agree with counsel for the
applicants in this regard.
[124] In addition, counsel for the applicants argued that, insofar as Bylaw 39
dealing with “boreholes ” is concerned (which was not referred to in the
answering affidavit or relied upon by the School), sub -section (3) pertains to
existing boreholes and prescribes conditions if boreholes are used for “ water
supply services ”. Mr Venter submitted that: (i) at best, the applicants are
required to notify the Municipality of the existing borehole and then, within the
discretion of the Municipality, it may prescribe c ertain conditions; and (ii) the
applicants have notified the Municipality of the borehole and this was
acknowledged without the Municipality raising any contravention of the bylaw.
[125] There is accordingly no merit in the arguments regarding the application
of Bylaws which demonstrate any unlawful conduct on the part of the applicants
or detract from their clear right.
Irreparable harm :
[126] It is common cause that the applicants exclusively make use of the
water from their borehole and they will therefore suffer irreparable harm is their
rights are infringed to the extent that they can no longer be supplied from the
borehole.
[127] It should not be forgotten that the price paid for the applicants’ property
would have included the benefit of the servitude.
[128] It has also been demonstrated in Dr Diamond’s report that the newly
drilled boreholes (albeit that they were drilled outside of the servitude area)
showed a drop in water level and that after five hours of pumping 2L/s the
borehole was almost empty. Bearing in mind that the School’s use of water is
likely to be much more and would probably include irrigation purposes and the
like and probably be much more extensive than water usage at a single
residence, irreparable harm or potential irreparable harm is likely as the School’s
boreholes may have a detrimental impact upon water available in the borehole
utilised by the applicant s.
[129] That said, the School is not prevented from investigating whether other
borehole sites are available on the School Property wh ich could be utilised and
would not affect the applicants’ maximum yield.
No alternative remedy
[130] A claim for damages in an instance like this would not be an adequate
alternative to interdictory relief , particularly as damages would be very difficult to
quantify.
[131] As final relief was persisted with, there is no need to deal with the
balance of convenience.
F. MERITS OF THE COUNTER APPLICATION :
[132] The cancellation relief in the counter application was brought based on
section 133 of the Water Act.
[133] With reference to De Kock , I do not agree that it has been shown that
the servitude merely serves the personal pleasure or caprice of the owner of the
land.
[134] This is also not an instance where the servitude benefits neither party
and operates prejudicially in respect of one of them as referred to in
Linvestment .
[135] For the reasons referred to above, I am of the view that there is no merit
in the Bylaw arguments.
[136] I accordingly see no basis upon which the cancellation relief can or
should be granted.
[137] That brings me to the alternative relief aimed at controlling the
applicants’ access.
[138] Certain of the restrictions suggested in the alternative relief seem
somewhat rigid and unreasonable, however, I am of the view that having regard
to safety concerns of the School arising from the i ncrease in crime and break -ins
at public schools and the provisions of the South African Schools Act and the
Regulations promulgated thereunder , it is justifiable to put certain reasonable
access control measures in place.
[139] Turning to the proposed measures, f irst, the request for 24 hours’ notice
of routine maintenance is , in my view, reasonable , particularly as Wikkies Pumps
indicated after inspecting the borehole pump station that routine maintenance
will not be required often.
[140] Second, for emergency access, the Court is not sure if the information is
outdated as this application was issued in May 2021. Although it is indicated
that two (2) people can be contacted and one is always onsite, I think that is
inadequate. I think contact details of at least t hree (3) persons should be
provided and the School is obliged to ensure that at least one (1) of those
persons is on site every day and contactable . I will adjust the order sought by
the School accordingly ;
[141] Third, as the applicants have had unfettered access to the school for
almost a decade, once they are permitted to enter the school there is no need for
them to be accompanied as suggested . Having said that, t hat requirement may,
however, be justified when dealing with any third party or contractor acting on
the applicants’ behalf or any successor in title who is not known to the School. I
will, hence, also amend the order sought accordingly ;
[142] Fourth, there is no need to consider the Covid 19 restrictions so no order
need be made to this effect.
G. THE “WITHOUT PREJUDICE ” RULE 34 TENDER AND COSTS :
[143] It appears from the Rule 34 tender that Vodacom has its own access to
the Vodacom tower via what was referred to as “a cubicle”. This enables
Vodacom to access the tower without being subjected to the restrictions sought
to be imposed on the applicants .
[144] Contrary to the Rules (which are dealt with below) , a “without prejudice ”
offer of sett lement in terms of Rules 34(2), 34(4) and 34(5) , dated 26 April 2023 ,
was made available to the Court on CaseLines under section 019. As will be
apparent from what is stated below, the Rules provide that the disclosure of a
“without prejudice ” settlement before judgment by a party can result in a n
adverse cost order against such a party.
[145] The rel evant provisions of Rule 34 appear below:
“34 Offer to settle
(2) Where the plaintiff claims the performance of some act by
the defendant, the defendant may at any time tender ,
either unconditionally or without prejudice, to perform such
act. Unless such act must be performed by the defendant
personally, he shall execute an irrevocable power of attorney
authorising the performance of such act which he shall deliver
to the registrar together with the tender.
…
(4) One of several defendants, as well as any third party from
whom relief is claimed, may, either unconditionally or
without prejudice, by way of an offer of settlement make a
written offer to settle the plaintiff’s or defendant’s claim
or tender to perform any act claimed by the plaintiff or
defendant.
(5) Notice of any offer or tender in terms of this rule shall be given
to all parties to the action and shall state —
(a) whether the same is unconditional or without prejudice
as an offer of settlement;
(b) whether it is accompanied by an offer to pay all or only
part of the costs of the party to whom the offer or tender
is made, and further that it shall be subject to such
conditions as may be stated therein;
(c) whether the offer or tender is made by way of settlement
of both claim and costs or of the claim only;
(d) whether the defendant disclaims liability for the payment
of costs or for part thereof, in which case the reasons for
such disclaimer shall be given, and the action may then
be set down on the question of costs alone.
(6) A plaintiff or party referred to in subrule (3) may within 15
days after the receipt of the notice referred to in subrule (5), or
thereafter with the written consent of the defendant or third
party or order of court, on such conditions as may be
considered to be fair, accept any offer or tender, whereupon
the registrar, having satisfied himself that the requirements of
this subrule have been complied with, shall hand over the
power of attorney referred to in subrule (2) to the plaintiff or
his attorney.
…
(10) No offer or tender in terms of this rule made without
prejudice shall be disclosed to the court at any time
before judgment has been given. No reference to such
offer or tender shall appear on any file in the office of the
registrar containing the papers in the said case.
(11) The fact that an offer or tender referred to in this rule has
been made may be brought to the notice of the court after
judgment has been given as being relevant to the
question of costs.
(12) If the court has given judgment on the question of costs
in ignorance of the offer or tender and it is brought to the
notice of the registrar, in writing, within five days after the
date of judgment, the question of costs shall be
considered afresh in the light of the offer or tender:
Provided that nothing in this subrule contained shall
affect the court’s discretion as to an award of costs.
(13) Any party who, contrary to this rule, personally or
through any person representing him, discloses such an
offer or tender to the judge or the court shall be liable to
have costs given against him even if he is successful in
the action .
(14) This rule shall apply mutatis mutandis where relief is claimed
on motion or claim in reconvention or in terms of rule 13. ”
[146] The provision of the Rule 34 “without prejudice” tender to the Court prior
to judgment is contrary to Rule 34(10).
[147] During argument, I was referred to the fact that the tender was not
accepted by the applicants but noted that it had provided for an entrance gate to
be erected and that access be granted to the applicants to a cubical similar to
the entrance gate and the access provided to Vodacom . That would result in the
applicants not being subjected to any restrictions to access. Prima facie , that
solution would have appeared to cater for “unfettered ” access and the Court
noted that the School offered to incur the co sts in relation thereto. Whilst this
may have been a suitable outcome, the settlement was rejected by the
applicants.
[148] As the tender was not accepted, the only relevance it has is in relation to
the issue of costs. The Court has already had sight of the tender and the option
to disclose it after judgment as envisaged in Rule 34(11) and an opportunity to
reconsider costs in terms of Rule 34(12) is no longer available .
[149] The School ’s counsel suggested I hold over the issue of costs as certain
correspondence which was not before the Court may be provided to it after
judgment and may influence the question of costs. Mr Venter advised that he
was unaware of what correspondence was being referred to and, despite the
Court stating that such correspondence should be sent to Mr Venter (albeit
under a suitable confidentiality regime), this did not happen .
[150] In my view Rule 34 makes it clear that the “ without prejudice ” tender
should not form part of the record and that after judgment and the Court grant ing
a cost order , a party can request the Court to reconsider the cost order made . At
that stage, the Rule 34 tender is made available to the Court . That did not
happen in this instance and there is no provision for correspondence to be
forwarded to the Court to reconsider its cost order as suggested by the counsel
for the School.
[151] It is also clear from Rule 34(10) that, notwithstanding the Rule, nothing
affects the Court’s discretion to award costs, it merely provides a mechanism by
which the cost order can be considered afresh (after judgment) with reference to
the tender.
[152] In the circumstances, t here is no basis for me to hold over the question
of costs.
[153] I was urged by the applicants to grant a punitive cost order against the
School. In this regard it was alleged that this litigation is vexatious. I was
referred to the matter of Boost Sports Africa (Pty) Ltd v South African Breweries
(Pty) Ltd18 where the SCA applied the dicta in the matter of In re: Alluvial Creek
Limited19 which states the following with regards to a punitive cost order:
“Now sometimes such an order is given because of something in the
conduct of a party which the court considers should be punished, malice,
misleading the court and things like that, but I think the order may also
be granted without any reflection upon that party whether proceedings
are vexatious, and by vexatious I mean whether they have the effect of
being vexatious, although the intent might not have been that they
should be vexatious. There are people who enter into litigation with the
utmost upright purpose and a most firm belief in the justice of their case,
and yet those proceedings may be regarded as vexatious when they put
the other side to unnecessary trouble and expense which the other side
ought not to bear. ”
[154] In my view there is no evidence of malice or vexatiousness on the part of
the School and both parties have achieved some success . I am also cognisant
of the fact that the Rule 34 te nder provided for each party to pay its own costs
and only regret that the tender was not made before the unilateral decision of the
school to deprive access to the servitude area and to impose unilateral terms of
restricting access without consultation.
[155] In the circumstances, I am of the view that each party should bear its
own costs.
H. ORDER
18 2015 (5) SA 38 (SCA) at para [27].
19 1929 CPD at 535.
In the light of what is stated above, the following order is granted:
1. The School must immediately restore the applicants’ access to their
borehole servitude registered over Portion 43 of the Farm
Hartebeespoort 362, Registration Division JR, Gauteng, registered in
favour of the remainder of Erf 7[...], M enlo Park, Pretoria, which
servitude was originally registered in notarial deed no. 633/1984S and
dated 10 August 1948 (“the servitude”) subject to the following
conditions:
1.1. for routine maintenance in the servitude ten ement, there must be
24 hours’ prior notification to the School;
1.2. for emergency access, three (3) persons nominated from time to
time by the School, two (2) of which persons were identified in
the counter application as being Mr Hannes Lombard with cell
phone no. 0[...] or Mr Mafalo with cell phone no. 0[...] can be
contacted and must provide access with in at least three (3)
hours;
1.3. the School must provide the contact details of the third (3rd)
contact person to the applicants within five (5) days of the date
of this order;
1.4. the School must ensure that , at all times , at least one (1) of the
designated contact persons is onsite and able to give access to
the applicants within three (3) hours;
1.5. the School is ordered to immediately advise the applicants of
any replacement of the three (3) designated persons and to
provide the applicants with the contact details of the newly
designated person(s);
1.6. after the applicants are given access to the School property,
they need not be accompanied by a representative of the school
to the servitude area;
1.7. in the event of any concerns regarding the applicants’ conduct in
attending the servitude, the School is entitled to approach the
Court for further directions on supervision required; and
1.8. in the event of a third party or agent of the applicants requiring
access to the servient tenement, they shall be accompanied by a
representative of the school;
2. The School is interdicted from, in any way whatsoever, infringing upon the
applicants’ rights emanating from the servitude which will include:
2.1. drilling or utilis ing any new borehole or the drawing of water from
the same aquifer which will detrimentally affect the yield of the
applicants’ borehole servitude; and
2.2. impeding or in any way restricting the fifth respondent’s access to
the Applicants’ electricity meter ( 1[...]) situated on Portion 43 of the
Farm Hartebeespoort 362, Registration Division, JR, Gauteng
Province ( 4[...] A[...] Road, M[...] P[...] , alternatively 4[...] A[...]
Road, M[...] P[...] );
3. The applicants and the School are ordered to pay their own costs in the
main application and the counter application.
LG KILMARTIN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Date of hearing: 26 November 2024
Date of judgment: 24 February 2025
For the Plaintiff: Adv JA Venter
Instructed by: Dr TC Botha Inc. Attorneys
For the Defendant: Adv A Vorster and Adv A Kruger
Instructed by: Boshoff Inc.