IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No:2023-091417
In the matter between:
NAMUTONIBOEDERY(PTY)LTD
SM VAN DYK BOEDERY (PTY) LTD
FIRST APPLICANT
SECOND APPLICANT
and
AFGRI POULTRY (PTY) LTD TIA
DAYBREAK FARMS RESPONDENT
DELETE WHICHEVER IS NOT APPLICABLE
II) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
{3) REVISED.
DATE 7 MARCH 202
JUDGMENT
HF JACOBS, AJ:
INTRODUCTION

12
[1] Afgri1 operates a poultry abattoir on Portion 82, which is adjacent
Portion 103 and Portion 354• Portion 35 is owned by Namutoni5 and SM
Boerdery6 conducts crop farming operations thereon. Portion 1 0 is owned by
Mr van Rooyen who is not a party to these proceedings.
[2] Afgri uses a significant amount of water in its abattoir operations
and has a wastewater treatment plant and a pond on Portion 8. In the
answering affidavit, it explains that it slaughters 125,000 chickens daily,
twenty four hours per day, seven days a week, substantially less than the
capacity of 980 000 chickens per week that its infrastructure allows. The
water Afgri uses is extracted from an underground water source on Portion 8
and it discharges wastewater after use (and after treatment) on Portion 10
into a pan. It does so with the permission of the applicants since 2012.
[3) The pan holds runs-off water and, as can be expected, the volume
of run-off water that flows into the pan increases during the rainy season and
decreases during the dry highveld winters. Afgri pumps its wastewater
throughout the year and the level of the water in the pan on Portion 1 0 rises
and encroaches onto Portion 35. This encroachment, so the applicants
contend, is the direct consequence of the unmonitored volume of wastewater
Afgri pumps into the pan on a full time basis. Over time, so the applicants
2
3
4
5
6
The respondent
Portion 8 of the Farm Modderfontein 236, Registration Division IR, Mpumalanga Province,
170 hectares in extent
Portion 10 of the Farm Modderfontein 236, Registration Division IR, Mpumalanga Province
The remaining extent of Portion 35 (a portion of portion 9) of the Farm Modderfontein 236,
Registration Division I.R., Mpumalang a Province
The first applicant
The second 3pplicant

say, the pan has become a permanent reservoir (dam) which encroaches
onto arable land of the applicants to such an extent that, during 2023, the
applicants revoked their permission granted 11 years earlier to Afgri and
demanded from Afgri to cease pumping its wastewater to the pan on Portion
10. Afgri did not cease the pumping of its wastewater. In this application the
applicants claim interdictory relief aimed at interdicting and restraining Afgri
from pumping its wastewater into the pan on Portion 10.
[4] On 22 March 2023 SM Boerdery's attorney wrote to Applicant as
follows:
"1. We refer to the abovementioned matter and confirm that the writer hereof
(hereinafter referred to as "we") received instructions from Mr SM van Dyk, a
director and authorised representative of SM Van Dyk Boerdery (Pty) Ltd
(hereinafter referred to as "our client") to address this letter to you and to
place the following on record.
2. It is our instruction that you conduct business as an abattoir and food
processing operation on the agricultural holding known as Afgri Poultry t/a
Daybreak Farms, on the remaining extent of portion 8 of the farm
Modderfontein, Mpumalanga , situated directly adjoined to our client's
agricultural holding, known as SM Van Dyk Boerdery (Pty) Ltd.
3. It is our further instruction that you pump water directly into one of our client's
water ponds situated on our client's agricultural holding in terms of an oral
agreement concluded between our client and one of your erstwhile
representatives. It was agreed that you may pump water from the abattoir
and food processing operation directly into our client's pond to alleviate your
excessive water challenges as experienced from time to time.
4. We herewith confirm that it was an agreed term, alternatively an implied term
that the water flow to the pond will be monitored and managed to ensure that
the pond perimeter remains the same in extent and that the surface that the
water occupies does not increase in perimeter.

5. You however fail to comply with the terms of the oral agreement in that you
continue to pump wastewater in our client's pond to the extend that the pond
perimeter increased so much so that it takes up valuable agricultural land
(10 hectares under irrigation) which land cannot be utilised by our client and
encroaches on our client's land and diminish their ability to use their land
commercially and furthers causes economical and financial damage and loss
tc our client.
6. We herewith demand that you immediately refrain from further pumping
wastewater into our client's pond. Should you fail to adhere to this demand
we confirm that our client will continue to suffer irreparable harm in that they
will not be able to utilise their agricultural land for agricultural purposes and
to derive an income from its crops because of your unlawful utilisation of
their agricultural land and your infringement and uptake of their agricultural
economic land and agricultural economic units.
7. We herewith demand that you immediately refrain from pumping any further
wastewater and/or any other water to our client's water pond and/or property
in any manner whatsoever. Any permission and/or consent previously
granted is herewith retracted and/or revoked. Your operation is encroaching
on our client's agricultural land and our client is no longer willing to condone
your conduct as explained and herewith placed on record.
8. Should you continue to pump any water and/or wastewater to our client's
water pond and/or property after delivery of this letter of demand, our client
will have no alternative remedy than to approach the High Court, for the
granting of an interdict and we will also request that a cost order be granted
against you herein on a punitive cost scale.
9. We trust you find the above in order and await your urgent response herein
by no later than close of business on 31 MARCH 2023.
10. Kindly acknowledge receipt of this letter in writing.
11. Our client's rights remain strictly reserved."

11. Our client's rights remain strictly reserved."
[5] Following the applicants' attorney's letter of 22 April 2023 the
parties met but could not resolve their differences and during September

2023 the applicants instituted these proceedings claiming the following relief
in their notice of motion:
"1. The respondent is interdicted and restrained with immediate effect from
pumping any further water from the wastewater treatment plant and pond on
the property known as Portion 8 of the farm Modderfontein ("the Abattoir
property" ) to the first applicant's farm known as the Remaining Extent of
Portion 35 (a Portion of Portion 9) of the farm Modderfontein ("the Irrigation
Farm" ).
2. That the interdict under paragraphs 1 supra operate, pending the finalisation
of an action to be instituted by the applicants for a declaration of rights and
damages within 20 days from the date of this order.
3. That the attorneys and client cost of the application be paid by the
respondent.
4. Further and/or alternative relief. ,,
[6] During argument counsel for the applicants informed me that a final
order is sought by the applicants as claimed in paragraph 1 of the notice of
motion and should such an order not be granted, that the application should
be dismissed. I will, therefore, not deal with the requirements for an interim
interdict and return to this aspect of the matter later in this judgment.
[7] Afgri contends that the papers show that there exist bona fide and
material disputes of fact not capable of resolution in these motion
proceedings that call for the application to be referred to trial or dismissed. I
state the law applicable to disputes of fact in motion proceedings before I turn
to the facts of the case.
DISPUTES OF FACT IN MOTION PROCEEDINGS: THE GENERAL
PRINCIPLES

[8] Motion proceedings, unless concerned with interim relief, are
designed for the resolution of legal disputes based on common cause facts.
Unless the circumstances are special they cannot be utilised to resolve
disputes of fact because they are not designed to determine probabilities.7
Long before the formulation of the Plascon~Evans rule8 our courts recognised
that respondents frequently attempt to create disputes of fact when none
exist. Our courts adopted the attitude that it should apply a "robust approach"
to disputes of fact in such instances.9 It is expected from a court in such
circumstances to undertake a careful perusal of the affidavits filed of record to
determine whether the disputes can be decided on the affidavits.10
[9] The starting point is always the Plascon-Evans-rule that provides
that "(W)here in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict or some other form of relief,
may be granted if those facts ave"ed in the applicant's affidavits which have
been admitted by the respondent, together with the facts alleged by the
respondent, justify such an order."11
[1 OJ The Plascon-Evans-rule must be applied mindful of the law stated
by Zondo CJ in his minority judgment in Botha12. The Plascon-Evans rule has
7
8
9
10
11
12
See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at (26)
See below
See Soffiantini v Mould 1956 (4) SA 150 (E) at 154E-H; Room Hire Co {Ply) Ltd v Jeppe
Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1165; BR Southwood, Essential Judicial
Reasoning, Lexis Nexis, 2015, pages 22-30
See Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO 1978 (4) SA 281 {A)
al293H .
Mamadi v Premier, Limpopo and Others 2024 (1) SA 1 (CC) at (22]
Botha v Smuts 2025 (1) SA 581 (CC) at (271)-(280)

been refined and extended to encompass untenable evidence challenges in
motion proceedings. In Fakie13 the Supreme Court of Appeal held:
"That conflicting affidavits are not a suitable means for determining disputes of
fact has been doctrine in this court for more than 80 years. Yet motion
proceedings are quicker and cheaper than trial proceedings and, in the interests
of justice, courts have been at pains not to permit unvirtuous respondents to
shelter behind patently implausible affidavit versions or bald denials. More than
60 years ago, this Court determined that a Judge should not allow a respondent
to raise 'fictitious' disputes of fact to delay the hearing of the matter or to deny
the applicant its order. There had to be 'a bona tide dispute of fact on a material
matter'. This means that an uncreditworthy denial, or a palpably implausible
version, can be rejected out of hand, without recourse to oral evidence.
In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pfy) Ltd, this Court
extended the ambit of uncreditworthy denials. They now encompassed not
merely those that fail to raise a real, genuine or bona tide dispute of fact but also
a/legations or denials that are so far-fetched or clearly untenable that the Court is
justified in rejecting them merely on the papers."
[11) The Plascon-Evans-rule is applied always conscious of the further
rule that an applicant will not be permitted to introduce new matter in its
replying affidavit. When evidence is presented in reply, the rule against new
matter in reply is not absolute and should be applied w ith a fair measure of
common sense14. Practical application of the principled approach recorded
above, appears from judgments such as Wightman, 15 Lombaard, 16 Buffalo, 17
Moka/a18 and National Scrap MetaJrn where our Courts held that a genuine and
13
14
15
16
17
18
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 55
Juta & Co Ltd and Others v De Koker and Others 1994 (3) SA 499 (T) at 511F; Smith v

Juta & Co Ltd and Others v De Koker and Others 1994 (3) SA 499 (T) at 511F; Smith v
Kwanonqubela Town Council 1999 ( 4) SA 94 7 (SCA) at [15)
Wightman t/a JW Construction v Headfour (Pty) Ltd & Another 2008 (3) SA 371 (SCA) at
par [13]; MV New Endeavor and Others v Indian Oil Corp Ltd 2024 (6) SA 64 (SCA) at [44]
Lombaard v Droprop CC & Others 2010 (5) SA 1 (SCA) at [26].
Buffalo Freight Systems (Pty) Ltd v Crestfeigh Trading (Pty) Ltd & Another 2011 (1) SA (8)
SCA at [19]-[21 ].
Mokala &leggings & Another v Minister of Rural Development and Land Reform & Others
2012 (4) SA 22 (SCA) at (11).

18
bona fide dispute of fact can only exist where the Court is satisfied that the party
who purports to raise the dispute has in its affidavits seriously and
unambiguously addressed the facts said to be disputed. There will be instances
where a bare denial meets the requirement but only if there is no other way open
to a litigant to raise the dispute and nothing more than a bare denial can be
expected. But even a bare denial would not always be sufficient if the fact lies
purely within the knowledge of the averring party and no basis is set out in the
opposing affidavit for disputing the veracity or accuracy of the disputed
averment. If a litigant possesses knowledge of the facts and can provide an
answer ( or countervailing evidence) but instead of doing so rest his or her case
on an ambiguous denial, a Court will generally have difficulty finding that the test
for the existence of a genuine and bona fide dispute of fact is satisfied.20 The
starting point is always to list the facts that are common cause.
THE PERMISSION TO PUMP WASTEWATER IN THE FOUNDING
PAPERS
[12] It is common cause that Namutoni is the ow ner of Portion 35 and
what the extent of Afgri's operations entail. In their founding papers the
applicants rely on its ownership of Portion 35 to found their right to assert
their right to claim the interdictory relief. In connection with the consent it
granted to Afgri to pump wastewater into the pan concerned it states as
follows in paragraphs 18 - 22.8 of its founding affidavit:
19
20
National Scrap Metal (Cape Town) (Pty) Ltd & Another v Murray & Roberts Ltd & Others
2012 (5) SA 300 (SCA) at [17]
Wightman (supra) at [13]

19
"18. As already mentioned, the Irrigation Farm [Portion 35) borders the
Abattoir Property [Portion BJ and there is a wetland area or pan and
centre pivot irrigation system on the Irrigation Farm. The wetland or pan
(hereinafter "the pan" or "dam'J and the irrigation system lie adjacent to
AFGRl's Abattoir Property. In corroboration of the aforesaid, I refer the
Court to an image obtained via Google Earth. The image is attached and
marked "FA 1 ".
19. The image (annexure "FA1'1 shows the Abattoir Property (marked as A
on the image), the pan on the Irrigation Farm (marked as B on the
image) and the irrigation system on the Irrigation Farm (marked as Con
the image).
20. During about 2012/2013, AFGRI approached the applicants and advised
us that they had plans to expand their operations on the Abattoir
Property. According to them, the expansion would benefit everyone.
21. The representatives of AFGRI also asked us permission to pump treated
wastewater from the pond next to the abattoir facility to the pan on the
Irrigation Farm and from there to another pan situated on my neighbour's
farm.
22. To the best of my recollection, the engagements mainly happened under
the leadership of a man by the name of Mr Chris Venter. At the time of
the approach:
22. 1. There was already a pan on the Irrigation Farm. The water in the pan
mainly amassed during summer . During the winter, the size of the pan
would shrink significantly. There was never any encroachment by the
water mass at any time on the arable land under the irrigation system
on the Irrigation Farm.
22.2. In corroboration of the aforesaid, I again refer the Court to the images
obtained via Google Earth. The image shows how the pan looked like
in 2005 and 2012 before permission was granted to AFGRI to pump
the treated wastewater to the pan. The images are attached and
marked "FA2n.

22.3. AFGR/'s representatives assured us that there would be no issues
and that the pumping of the water would not interfere with the farming
operations on the Irrigation Farm because they would monitor and
manage waterflows and because:
22.3.1. The expansion of the wastewater treatment plant would result in
better and more effective use of the wastawater produced by the
abattoir facility.
22.3.2. AFGR/ would manage the quantities of water pumped from the pond
on the Abattoir Property to the pan on the Irrigation Farm by installing
pumps and associated equipment next the pan on the Irrigation Farm.
22.3.3. AFGRI would use the aforementioned pumps installed at the pan on
the Irrigation Farm to manage the size of the pan by pumping water
from the pan on the Irrigation Farm to the pan on the neighbour's
farm.
22.4. According to AFGRJ's representatives, there was just nothing to be
concerned about.
22.5. Within the context set out above, the applicants agreed to allow AFGR /
to pump water from the pond on the Abattoir Property to the pan on the
Irrigation Farm and from there to the neighbours' farm.
22. 6. It expressly communicated that the applicants were granting AFGR/ and
indulgence and was understood and tacitly agreed between the parties
that:-
22.6.1. The applicants had the right to withdraw the permission given to
AFGRI to pump water;
22. 6. 2. AFGRI had to monitor and manage the amounts of water pumped to
make sure that it does not interfere with the applicant's operations on
the Irrigation Farm;

22. 6.3. AFGRI had to exercise the right to pump water reasonably and with
due regard and respect to the rights of the applicants in relation to the
Irrigation Farm.
22. 7. Over time, AFGRI pumped so much water into the pan that size of the
area expanded to the extent that the pan is now a permanent dam which
encroaches on about ten hectares of arable land on the Irrigation Farm .
The arable land lies underneath the applicants' irrigation system.
22. 8. AFGR/ has failed to monitor the amounts of wastewater it pumps to the
pan and has also failed to use the pumps installed at the pan on the
Irrigation Farm to manage water flows and the size of the pan. The
pumps and the associated equipment are now underwater because of
AFGRl's failures to monitor and manage the situation. The pumps
cannot be used to pump excess water to the neighbour's farm.,,
THE PERMISSION TO PUMP WASTEWATER IN THE ANSWERING
PAPERS
[13] To this evidence, Afrgi answers in paragraphs 40 - 58 of its
answering affidavit:
"40. AD PARAGRAPH 18 THEREOF :
40. 1. If is denied that Namutoni's property is an "irrigation farm" for the
reasons already set out hereinbefore. It is denied that either of the
Applicants made out a case that they are entitled to use water for any
purpose of Namutoni's property for the reasons set out above.
40.2. II is submitted that Namutoni's property borders on the Respondent's
property.
40.3. It is specifically denied that the pan, which only partially lies on
Namutoni's property, is a wetland for the purposes of the NWA. I am
advised that a wetland is defined by section 1 of the NWA to mean 'land
which is transitional between terrestrial and aquatic systems where the

112
water table is usually at or near the surface, or the land is periodically
covered with shallow water and which land in normal circumstances
support or would support vegetation typically adapted to life in saturated
soil'. I am advised that full legal argument in this regard will be presented
to the Honourable Court at the hearing of the application.
40. 4. I further specifically deny that the pan that is partially situatod on the
Remaining Extent of Portion 35 (a portion of portion 9) of the farm
Modderfontein 236 IR, lies adjacent to the Respondent's property. In this
regard, I refer the Honourable Court to paragraph 3.5.8 of Mr Vorster's
report, specifically figure 20 on page 8. It is evident that the portion of the
pan that is situated on the Remaining Extent of Portion 35, (a portion of
Portion 9) of the farm Modderfontein 236, Registration Division IR which
belongs to Namutoni is not situated adjacent to Portion 8 but borders on
the remaining extent of Portion 10 of the farm Modderfontein 236,
Registration Division IR.
40. 5. The remaining extent of Portion 10 of the farm Modderfontein 236,
Registration Division IR is a property that is owned by Nicolaas Jacobus
Lourens van Rooyen in terms of Deed of Transfer T203/2017 a copy of
which is attached hereto as ':4A 11 ". I further attach hereto a copy of the
SG diagram A3404/14 as "AA 12a" that shows that the pan that is
situated on the remaining extent of Portion 10 of the farm Modderfontein
236, Registration Division IR borders on the southern boundary of the
Remaining Extent of Portion 35 (a portion of Portion 9) of the farm
Modderfontein 236 IR.
40.6. It is evident from the Google Earth image that was attached to the
founding affidavit as "FA 1 ", that the deponent did not take the
Honourable Court into his confidence and show the Honourable Court
where the property boundaries of Namutoni's property is. I attach hereto
a copy of the surveyor diagram of Namutoni's property indicating the

a copy of the surveyor diagram of Namutoni's property indicating the
boundaries of that property as "AA 12b ':
40. 7. I deny that the irrigation systems that are situated next to the
Respondent's properties may be used to apply water that is taken from

underground resources illegally. In this regard, I specifically refer the
Honourable Court to figures 13, 14, 15, 16 and 17 of Mr Vorster's report.
The first time that an in-igation system was present on Numatoni's
property was when a centre pivot was visible at fields 7 and 8 on the
Landsat 7 satellite image of 15 July 1998.
40. 8. The first time that any irrigation was visible on the area designated field
14 is on 23 April 2000 when field 16 is visible for the first time. Prior to
this, field 16 formed part of field 14, which was probably not in-igated
according to Mr Vorster's report.
40. 9. I specifically deny that annexure "FA 1" to the founding affidavit is helpful,
as it does not provide a glimpse of what happened during the qualifying
period being the period between 1 October 1996 to 1 October 1998,
when the NWA came into operation.
40. 10. I am advised that Google Earth images are unable to shed any light on
what the historical water use on the property was as the earliest clear
Google Earth image of the area was taken on the 27"' of June 2002. This
is the reason why the Respondent employed the services of Mr Vorster,
an expert, in order to obtain the appropriate satellite images.
41. AD PARAGRAPH 19 THEREOF:
41.1. The contents of this paragraph are denied. The Google Earth image that is
attached is only an indication of what happened at a specific time and
the Google Earth image does not indicate the date of the imagery on the
Google Earth image itself. I presume that the date that appears in the
right top corner namely 12 September 2023 at 08:24:36am is not the
date of the Google image as this date and various times appear also on
all the pages of the founding affidavit.
42. AD PARAGRAPH 20 THEREOF :
42.1. Although it is con-eel that the Respondent approached the Applicants in
about 2012, it is denied that the plans to expand the abattoir on the
Respondent's property started at that time. The remainder of the

allegations in this paragraph is denied. The expansion of the abattoir
took place even before the Respondent became the owner of the
Remaining Extent of Portion B of the Farm Moddertontein 236
Registration Division JR. The first time that it was evident that any
extension took place was on 2 May 2007, when construction is visible on
the Google Earth imagery of that date. I attach hereto three Google
Earth images as HAA13", ''AA14" and ''.AA15", "AA13", taken on 3
February 2005, clearly shows only the existing buildings at the time,
while ':4A 14" shows construction that was undertaken on 2 May 2007,
while "AA 15", taken on 1 March 2010, clearly shows the completed and
extended abattoir,
42.2. The property was only registered in the Respondent's name on 12
December 2012 according to the Deed of Tra g T13522/2012.
43. AD PARAGRAPH 21 THEREOF:
43. 1. The content of this paragraph is admitted.
44. AD PARAGRAPH 22 THEREOF :
44. 1. The content of this paragraph is denied.
44. 2. I do not know and could not, through enquiries, establish if a person by
the name of Chris Venter ever worked for or represented the
Respondent.
44.3. The deponent is probably mistaken. He refers most likely to Kobus
Venter and not Chris Venter. This is but one further example of the
inaccuracies contained in the Applicants' founding affidavit.
44. 4. The Respondent engaged the local farmers when the abattoir was
expanded. The Respondent was represented by Willem Breedt and
Kobus Venter. Both gentlemen are no longer employed by the
Respondent.
44.5. The Applicants concede on their own version that the expansion of the
abattoir included the construction of the wastewater treatment plan,

which dramatically increased the abattoir's abiuty to use less water, to re­
use water and to dispose of the same or less wastewater despite the
increase in production.
44. 6. I will later, in this affidavit, return to the operation of the abattoir's
wastewater treatment plant, the abattoir's capacity and water usage.
45. AD PARAGRAPH 22.1 THEREOF:
45. 1. I deny that Namutoni's property is an irrigation farm for the reasons
already set out above. Although it is correct that water collected in the
pan during summer months and the area of the pan receded during
winter, the remaining allegations in this paragraph are denied.
46. AD PARAGRAPH 22.2 THEREOF:
46. 1. The contents of this paragraph are denied. Without the services of a
remote sensing specialist, I respectfully submit that no deductions can
be made from these Google Earth images.
47. AD PARAGRAPH 22.3 THEREOF:
4 7. 1. The contents of this paragraph are denied. Part of the agreement that
was reached between the Respondent and Namutoni was that the
Respondent would make available extra land on the Remaining Extent of
Portion 8 of the farm Modderfontein 236, Registration Division IR to
compensate Namutoni for any Joss of land that it would suffer as a result
of water that is accumulated in the pan that is partially situated on
Numatoni's property. The land that was so made available could be
farmed free of charge the account of the Applicants. Up until the making
of this affidavit, the Applicants are entitled to plant at least 9,41 hectares
on the Respondent's property free of charge. The area that Numatoni
could plant crops on is situated to the West of the pan that is situated on
the Remaining Extent of Portion 8 of the farm Modderfontein 236,
Registration Division IR. Currently and area of 9,41 hectares is planted.
47.2. I specifically deny that Namutoni's property is an irrigation farm for the
reasons already set out above.

116
48. AD PARAGRAPH 22.3.1 THEREOF:
48. 1. It is correct that the expansion of the wastewater treatment plant resulted
in a better and more effective use of wastewater that is produced by the
abattoir fac;tity.
49. AD PARAGRAPH 22.3.2 THEREOF:
49. 1. The Respondent has managed the quantities of water pumped from the
pan on the abattoir to the pan, which is partially situated on Namutoni's
property, It is specifically denied that Namutoni's property can be
categorised as an "irrigation farm" for the reasons already set out herein.
It is specifically denied that the pumps and associated equipment were
installed on Namutoni's property. The pumps and associated equipment
that were installed next to the pan were installed on the remaining extent
of Portion 10 of the farm Modderfontein 236, Registration Division IR that
belongs to Nicolaas Jacobus Lourens van Rooyen. The water that was
pumped from the pan is partially situated on Namutoni's property but
mostly situated on the remaining extent of Portion 10 of the farm
Modderfontein 236 IR. According to Mr Vorster's report and specifically
page 26 thereof, only 3,48 hectares of the pan was situated on
Namutoni's property, being the Remaining Extent of Portion 35 of the
farm Modderfontein 236, Registration Division IR on 13 July 2015.
49.2. According to Mr Vorster's report and specifically page 27 thereof only
7, 32 hectares are situated on Numatoni's property. The bulk of the pan
that is partially situated on Nunatoni's property namely 25,97 hectares
(on 13 July 2015 - see page 35 and figure 2 35,62 hectares (on 28
January 2023 -see page 36 and figure 30) is situated on the remaining
extent of Portion 1 O of the farm Modderfontein 236, Registration Division
IR, that belongs to Nicolaas Jacobus Lourens van Rooyen.
50. AD PARAGRAPH 22.3.3 THEREOF:
50. 1. The contents of this paragraph are denied. It is reiterated that
Namutoni's farm is not an "irrigation farm" for the reasons already set out

Namutoni's farm is not an "irrigation farm" for the reasons already set out
above. It is further reiterated that the pumps that are installed to pump

117
water from the pan that is partially situated on Namutoni's property has
been installed on the remaining extent of Portion 10 of the farm
Modderlontein 236, Registration Division IR belonging to Nicolaas
Jacobus Lourens van Rooyen.
50.2. However, it is correct that the pumps are used to pump water from the
pan that is partially situated on Namutoni's properly to another pan which
is situated on the remaining extent of Portion 10 of the farm
Modderlontein 236, Registration Division IR.
51. AD PARAGRAPH 22.4 THEREOF :
51.1. The contents of this paragraph are denied. As is evident from what is
said herein before, there was a quid pro quo in the form of land that was
provided by the Respondent on which Namutoni could farm and plant
crops free of charge.
52. AD PARAGRAPH 22.5 THEREOF :
52. 1. The contents are denied. The deponent on behalf of the Applicants do
not take the court into its confidence. Nowhere in the founding affidavit is
there any mention made of the quid pro quo that was provided by the
Respondent to allow water to be pumped into the pan that is partially
situated on Namutoni's property and that as a quid pro quo the
Applicants were allowed to farm on a part of the Remaining Extent of
Portion 8 of the farm Modderlontein 236, Registration Division IR free of
charge.
53. AD PARAGRAPH 22.6:
53. 1. The content of this paragraph is denied. There was no indulgence that
was granted to the Respondent. As a quid pro quo for the storing of
water in the pan that is partially situated on Namutoni's property, the
Applicants were granted the right to farm on the Respondent's land free
of charge. As I have indicated earlier, there are at least 9,41 hectares
planted by the Applicants on the Respondent's property.

54. AD PARAGRAPH 22.6.1 THEREOF :
54.1. The content of this paragraph is denied. the agreement that was entered
into between the parties was that water could be stored in the pan while
Namutoni could farm at least 9,41 hectares of land on the Respondent's
property. The agreement that was entered into was, therefore,
reciprocal.
55. AD PARAGRAPH 22.6.2 TH ER EO F:
55. 1. I repeat that Namutoni's property is not an "iffigation farm" as is alleged
by the deponent for the reasons already set out hereinabove. As part of
the quid pro quo the Respondent allowed Namutoni to farm on at least
9,41 hectares of the Respondent's properly. The remainder of the
paragraph is denied.
56. AD PARAGRAPH 22.6.3THEREOF :
56. 1. I specifically deny that Namutoni's property is an i"igation farm for the
reasons set out herein. It was always in the contemplation of the parties
that the pan may extend beyond the boundaries at the time when the
agreement was entered into, and it is for exactly that reason that the
quid pro quo of farming on the Respondent's land was offered to the
Namutoni and was accepted by the Applicants.
57. AD PARAGRAPH 22. 7:
57. 1. The contents of this paragraph are a blatant lie and are denied. As is
evident from Mr Vorster's report, the area of the pan that encroaches
upon Namutoni's property was only 7.32 hectares on 28 January 2023.
This is a mere 3,84 hectares more than the area of 3,48 hectares that
was covered by the pan on 13 July 2015. This is again an indication that
the deponent is prone to over-exaggeration in an effort to create
atmosphere. I categorically deny that 10 hectares of Namutoni's property
is encroached upon by the pan. I further deny that Namutoni's property
can be classified as an "irrigation farm" for the reasons already set out
above. The remainder of this paragraph is denied.

119
58. AD PARAGRAPH 22.8 THEREOF :
58. 1. The contents of this paragraph are denied.
58.2. In amplification of the denial, the court's attention is drawn to the fact that
the pumps are not installed on Namutoni's property. As is evident from
what is said herein, the pumps and associated infrastructure are situated
on the remaining extent of Portion 10 of the farm Modderfontein 236,
Registration Division IR. It is adm itted that the pumps that were installed
to pump water from pan 2 to pan 3 (pan 3 to pan 4 on Mr Vorster's
report) are currently inundated. It Is also admitted that no water can
currently be pumped between these two pans. This is for various
reasons:
58.2.1. Pumping stopped when the pumping infrastructure situated on the
remaining extent of Portion 10 of the farm Modderfontein 236 IR, was
inundated during rainstorms that the area received during November
and December 2022;
58.2.2. A result of the flooding of the pump station was that the electricity that
supplied the pumps tripped, and the pumps were submerged.
58.2.3. The pump station is still under water and is inoperable as a result of
the current water levels.
58.2.4. The water can, in any case, not be pumped to the other pan that is
situated on the remaining extent of Portion 10 of the farm
Modderfontein 236 IR, as that pan was also filled up during the
rainstorms that occurred during November and December 2022. I will
deal with the rainfall that the area received later in this affidavit."
THE PERMISSION TO PUMP WASTEWATER IN THE REPLYING PAPERS
[14] In their replying affidavit (paragraphs 9 - 22 and 58 - 65.5) the
applicants states as follows:

120
"9. Mr Manzini has no personal knowledge of the matter, and he has never
had any dealings with me or my father, Mr Thinus van Dyk, regarding the
pumping of treated wastewater from the Abattoir property to the Irrigation
farm.
10. In my Founding Affidavit, I explained that we dealt w;fh Mr Chris Venter
of AFGR/ during 2012/2013 and that Mr Venter approached us on behalf
of AFGRI with a request to allow AFGRI to pump treated wastewater
from the Abattoir property to the Irrigation farm.
11. Mr Manzini responded to the applicants' version by stating that we
probably met Mr Kobus Venter and not Chris Venter. According to Mr
Manzini, AFGRI was represented by Mr Willem Breedt and Kobus
Venter. At the time, the aforementioned gentlemen were the
representatives of AFGRI who had been mandated to deal with local
farmers, including the applicants, on behalf of AFGR/.
12. The applicants accept that the gentlemen who approached them was Mr
Kobus Venter and not Mr Chris Venter. I made a bona fide mistake in my
Founding Affidavit by recording the name of Mr Venter as Chris instead
of Kobus.
13. Returning to the version put forward by Mr Manzini on behalf of AFGRI:
13. 1. Mr Manzini stated in paragraph 56. 1 of the AFGRI affidavit as follows:
"It was always in the contemplation of the patties that the pa may extend
beyond the boundaries at the time when the agreement was entered
into, and it for exactly that reason that the quid pro quo of farming on the
Respondent's land was offered to Namutoni and was accepted by the
Applicants. "
13.2. Mr Manzini states in paragraph 88.2 of the AFGRI affidavit as follows:
"The Second Applicant currently farms at least 9,41 hectares that belong
to the Respondent free of charge. It is denied that Namutoni's property is
an irrigation farm for the reasons already set out above."

• - 121
14. The applicants and I were taken by total surprise when they read the
aforementioned paragraphs because we never had any dealings with Mr
Manzini regarding the permission that was granted by the applicants to
AFGRI to pump treated water from the Abattoir property to the Irrigation
farm and because what is stated by him is just a blatant lie.
15. The statements prompted me and the applicants' legal team to go and
look for Mr Kobus Venter and Willem Breedt who were the
representatives of AFGRI at the time the applicants' decided to allow
AFGRI to pump water to the l"igation farm.
16. AFGRl's legal team had consultations with both gentlemen. The
applicants' legal team consulted with Mr Kobus Venter on 29 February
2024 and thereafter with Mr Breedt on or about 7 March 2024. In short,
they confirm that Mr Venter dealt with the applicants and reported to Mr
Breedt, and Mr Venter confirms the following:
16. 1. In 2012/2013, both gentlemen were duly authorised to represent AFGRI
in its dealings with local farmers in the area. At the time, Mr Venter was
the engineer who assisted AFGRI with managing the water purification
part of the abattoir facility, and Mr Breedt was the factory manager.
Later, in 2016, Mr Venter was appointed as one of AFGR/'s Managing
Directors and resigned after there was a change in AFGR/'s
shareholding and management.
16.2. During our interactions Mr Venter communicated with my father, Mr
Thinus van Dyk and me and asked us permission for AFGRI to pump
properly treated wastewater from the Abattoir property to the '"igation
farm.
16.3. We (the applicants) agreed to allow AFGRI to pump properly treated
wastewater from the Abattoir property to the pan on the Irrigation farm
subject to the following conditions:
16.3.1. The applicants could withdraw the permission given to AFGRI to
pump water at any time.

16.3.2. AFGRI had to monitor and manage the quantities of water pumped to
the Irrigation farm to make sure that the water did not interfere with
the applicants' farming operations on the Irrigation farm in any way or
manner.
16.3.3. It was specifically discussed that AFGRI would not allow the size of
the water mass created by AFGRI on the Irrigation farm to increase or
rise beyond the gravel road that runs around the ;,rigation circle in the
area where the water was going to be pumped.
16.3.4. AFGRI would manage the size of the water amassed on the Irrigation
Farm by using pumps to pump the water it had pumped to the
Irrigation Farm to Portion 10 of the Farm Modderfontein ("the
Neighbours Farm").
16.3.5. AFGRI would at all relevant times exercise their right to pump water
from the Abattoir property to the Irrigation farm with due regard to the
rights of the applicants in relation to the Irrigation farm and their
farming operations.
17. The version of Mr Venter regarding what was discussed and agreed to
between the applicants and AFGRI back in 201212013, corroborates and
supports what I have already stated on behalf of the applicants in my
Founding Affidavit and Mr Venter's confirmatory Affidavit is filed
simultaneously with this Affidavit.
18. Mr Venter also confirms that there was never any quid pro quo
discussed between the parties at the time the applicants gave AFGRI
permission to pump treated wastewater to the Irrigation farm and that the
applicants received nothing in return for allowing AFGRI to pump water
from the Abattoir property to the Irrigation farm. Again, I refer the Court
to the confirmatory Affidavit of Mr Venter. The Affidavit is attached and
marked as annexure "RA2".
19. Completely separate from the permission that was granted by the
applicants to AFGRI to pump treated wastewater from the Abattoir
property to the Irrigation farm towards the end of 2013:

19. 1. AFGRI approached my father and me with a crisis; the local
municipality had run out of water. At the time, AFGRJ relied on the
municipality for its supply of water to operate its abattoir facility and
because the municipality was unable to supply water to AFGRI its
operations had grinded to a halt and it was at risk of suffering
enormous damages and losses. The abattoir facility of AFGRI cannot
operate without water.
19.2. Mr Venter asked us whether there was any way we could assist
AFGRI by supplying it with water from the borehole, which we also
use for irrigation purposes on the Irrigation Farm.
19. 3. M father and I always acted reasonably and in good faith towards
AFGRI and did not want AFGRI to suffer damages . I add, at that point
in time, the applicants had also supplied AFGR/ with thousands of
chickens to slaughter and sell to retailers.
19.4. We agreed to allow AFGRI to build and connect a second pipeline
between the Abattoir and the borehole situated on the Irrigation farm
and draw water from the borehole to enable AFGR/ to operate the
abattoir facility. The situation lasted for a couple of months while
AFGRI got drillers to drill for water on its property to sink a borehole.
AFGR/ eventually found water and stopped pumping water from the
borehole on the Irrigation farm to the abattoir facility.
19. 5. As a sign of its gratitude, Mr Venter advised the applicants that they
could plant about 9 hectares of arable land on the abattoir property.
There was no agreement concluded between the parties regarding
the applicants' right to plant the 9 hectares of arable land. AFGRI just
granted the applicants permission to plant the arable land until such
time as it had decided otherwise.
19.6. The applicants planted the 9 hectares for about three seasons, and
AFGRI withdrew the permission that was granted to the applicants.
The applicants stopped planting the 9 hectares on the Abbatoir
property about 2016 and the lands on the abattoir property are now

Papi:-124
being planted by Mr Van Rooyen. Mr van Rooyen's confirmatory
Affidavit is attached and marked as annexure "RA3».
19. 7 The applicants are not planting the 9 hectares of arable land on
AFGRl's property, and Mr Manzini is being dishonest in his Opposing
Affidavit, where he states that the lands are currently being planted by
the applicants or SM. Mr Mazini lied about the terms of the agreement
and about AFGRI planting the 9 hectares of arable land in an attempt
to win the case for AFGRI.
20. At this juncture, I refer the Court to the confirmatory Affidavit of Mr
Venter who confirms that the planting of the 9 hectares was a
"completely separate deal" and had nothing to do with the permission
that was granted to AFGRI to pump treated wastewater from the Abattoir
property to the irrigation farm.
21. I also obtained a Confirmatory Affidavit of Mr Van Rooyen, who confirms
that he has been planting arable land on the Abattoir property with
permission from AFGRI . The Confirmatory Affidavit of Mr Van Rooyen is
already attached.
22. Mr Manzini's false version effectively destroys AFGRJ's entire case
because it is beyond dispute that the applicants were, as they have
done, entitled to withdraw the permission granted to AFGRI to pump
treated wastewater from the Abattoir property to the Irrigation farm and
that should be the end of the matter."
"58. AD PARAGRAPH 40:
58. 1. The irrigation farm falls within the upper regions of the Quaternary
Catchment C21 D in the Vaal Primary Catchment Group.
58.2. The Irrigation farm is a depressional wetland area which connects with
the Blesbok Spruit.
58.3. With regard to the applicants' right to use water on the Irrigation farm for
irrigation purposes, I refer the Court to what I have said.
59. AD PARAGRAPH 42:

59. 1. The applicants do not know when exactly AFGRI started expanding the
abattoir facility. The applicants were only engaged about the expansion
in 2012/2013.
59. 2. Between the period 2013 to 2015, the size of the water amassed on the
Irrigation farm increased because of AFGRI pumping wastewater to the
Irrigation farm.
59.3. From 2015 to 2023, the size of the wastewater amassed on the Irrigation
farm increased even more because of AFGR/ pumping even more
wastewater to the Irrigation farm.
59. 4. The size of the water amassed on the Irrigation farm is not reducing as
AFGRI will have the Court believe. That statement by Mr Manzini is just
not true.
59. 5. The pumps next to the water, which were used by AFGR/ to manage
water levels, are still submerged.
60. AD PARAGRAPH 44:
60. 1. It is correct that the person who engaged the applicants was not Chris
Venter but by Mr Kobus Venter.
60.2. Mr Kobus Venter reported to Mr Willem Breedt, who was the factory
manager at the t;me.
60.3. Mr Kobus Venter is the one who dealt with the applicants and who
approached my father and me for permission to pump treated
wastewater from the Abattoir property to the Irrigation farm.
60.4. The applicants were entitled to withdraw the permission that was given
to AFGRI to pump treated wastewater from the Abattoir property to the
Irrigation farm and at present AFGRI is unlawfully pumping polluted
wastewater to the Irrigation farm.
61. AD PARAGRAPH 47:
61.1. Mr Manz ini is being dishonest in the paragraph under reply because:

61.1.1. He is acutely aware that he was never personally involved in any of
the negotiations between AFGRI and the applicants regarding the
pumping of treated wastewater from the Abattoir property to the
Irrigation farm.
61.1.2. Without having any knowledge of the facts, Mr Manzini states that the
applicants plant about 9.4 hectares of arable land on the Abattoir
property, free of charge, in exchange for allowing AFGRI to pump
wastewater to the Irrigation farm.
61.1.3. Mr Manzini is being dishonest in the paragraph under reply because
the true position is that the applicants are not planting any land on the
Abattoir property. The land is being planted by Mr Van Rooyen.
61.1.4. The planting of the 9 hectares had nothing to do with the permission
that was granted by the applicants to AFGRI to pump treated
wastewater to the Irrigation farm. The permission to pump treated
wastewater and the planting of the 9 hectares have no relation to
each other.
61. 2. I repeat what I said in the exposition above regarding the permission that
was granted by the applicants to AFGRI to pump treated wastewater
from the Abattoir property to the Irrigation farm and how it came about
that the applicants planted crops on the arable land which belongs to
AFGRI .
62. AD PARAGRAPH 49:
62.1. The l"lgation farm is correctly categorised as an Irrigation farm.
62.2. AFGRI failed to manage the quantities of wastewater pumped from the
Abattoir property to the Irrigation farm.
62.3. This is borne out by the following:
62.3.1. Before the abattoir facility was expanded, there was no permanent
water mass in the area where the pan is now on the Irrigation farm.
62.3.2. After AFGRI started pumping wa stewater to the Irrigation farm, the
size of the water amassed on the Irrigation farm increased over the

years until a portion of the arable land on the l"igation farm and
pumps next to the water was submerged.
62.4. As explained in my Founding Affidavit, AFGRI pumped so much water to
the Irrigation farm that it created a permanent pan or dam on the
Irrigation farm."
[15] As mentioned in its replying affidavit, the applicants annexed thereto
an affidavit of Mr Venter who represented Afgri during 2012 when it was granted
permission to pump wastewater from Portion 8. Paragraphs 3.1 - 3.12 of Mr
Venters affidavit read as follows:
«3_ 1. I was duly authorised to represent AFGRI in its dealings with local
farmers.
3.2. In 2012/2013 I was the engineer who assisted AFGRI with manging the
water purification part of the abattoir which operates from the property
known as Portion 10 of the farm Modderfontein ("the Abattoir property").
Mr Breedt was the factory manager and I reported to him.
3.3. In 2016, I was appointed as AFGRl's Technical and Biological Executive,
and I resigned after there was a change in AFGR/'s shareholding and
management.
3.4. During my interactions with the applicants, I communicated with Mr
Tinus van Dyk and his son, Mr Stephanus Martinus van Dyk. About
2012/2013 I asked the gentleman permission for AFGRI to pump treated
wastewater from the Abattoir to property on Portion 35 of the farm
Modderfontein ("the Irrigation farm").
3.5. The applicants duly represented and authorised by the aforesaid
gentleman agreed to allow AFGRI to pump properly treated wa stewater
from the Abattoir property to the Irrigation farm subject to the following
conditions:

3. 5. 1. The applicants could withdraw the permission given to AFGRI to
pump water at any time.
3. 5.2. AFGRI had to monitor and manage the quantities of water pumped to
the Irrigation farm to make sure that the water does not interfere with
the applicants' farming operations on the Irrigation farm.
3.5.3. AFGRI will not allow the size of the water mass created by AFGRI on
the Irrigation farm to increase or rise beyond the gravel road that runs
around the irrigation circle on the Irrigation farm.
3.5.4. AFGRI would manage the size of the water amassed on the Irrigation
Farm by using pumps to pump the water it had pumped to the
Irrigation Farm from the Irrigation Farm to Portion 1 O of the Farm
Modderfontein.
3.5.5. AFGRI would at all relevant times exercise their right to pump water
from the Abattoir property to the Irrigation farm with due regard to the
rights of the applicants in relation to the Irrigation farm and their
farming operations.
3. 6. There was never any quid pro quo discussed between the parties at the
time the applicants gave AFGRI permission to pump treated wastewater
to the Irrigation farm. The applicants received nothing in return for
allowing AFGRI to pump wastewater from the Abattoir property to the
Irrigation farm.
3.7. Towards the end of 2013, I on behalf AFGRI approached Mr Van Dyk
(snr) to assist AFGRI with water because the municipality became
unable to supply water to the Abattoir property. AFGRl's abattoir facility
cannot operate at all without water.
3.8. Mr Venter asked us whether there was any way we could assist AFGRI
by supplying it with water from the borehole which we also use for
irrigation purposes on the Irrigation Farm.
3. 9. The applicants agreed to allow AFGRI connect pipeline to the applicants'
borehole on the Irrigation farm and to draw water from the borehole to

I, 129
use to operate the abattoir facility. The situation lasted for a couple of
months whilst AFGRI got drillers to drill for underground water for
purposes of sinking a borehole. AFGRI eventually found water and
stopped pumping water from the borehole on the Irrigation farm to the
abattoir facility.
3.10. As a sign of its gratitude, I advised the applicants that they could plant
about 9.4 hectares of arable on the Abattoir property. There was no
agreement concluded between the parties regarding the applicants' right
to plant the 9 hectares of arable land on the Abattoir property. AFGRI
just granted the applicants permission to plant the arable lands until such
time as it had decided otherwise.
3. 11. The second applicant ("SM'? planted the 9 hectares for about three
seasons whereafter AFGRI w ithdrew the permission that was granted to
the applicants.
3. 12. The applicants stopped planting the 9 hectares on the Abattoir property
about 2016."
APPLICATION OF THE LAW TO THE ISSUE OF PERMISSION TO PUMP
THE WASTEWATER
[16) The evidence indicates that the applicants permitted Afgri to pump
wastewater from its abattoir into the existing pan on Portion 35 at its request,
as stated by Mr Venter. This consent could be revoked at any time. The
applicants have communicated their w ithdrawal of permission, and there is no
genuine dispute of fact on this point that cannot be resolved in these
proceedings. Mr Manzini's denials and statements to the contrary are without
substance and nothing more than assertions wh ich have no evidentiary value

r-a~ ,._ 130
in civil proceedings of the kind afoot here.21 On the facts and in law the
applicants were entitled to revoke the permission and they did.
[17] Afgri objects to the length of the replying affidavit. This affidavit is
extensive because the challenge presented in the answering affidavit is
elaborate, contrived, and materially false in several respects. It includes
evidence that refutes Afgri's unmeritorious challenges, and the claim that it
should be struck out must inevitably fail. The dispute raised by Mr Manzini,
who swore to Afgri's answering affidavit, regarding the consent under which
Afgri pumps the water and the conditions attached to it, is neither bona fide
nor material. Mr Manzini asserts under oath that he has personal knowledge
of the facts he presents. However, it later emerges from Mr Venter's affidavit
that Mr Manzini either lacked personal knowledge or, if he possessed it,
presented facts and devised a challenge in the H igh Court proceedings,
knowing those facts to be incorrect. In my view Afgri's challenges on the facts
and law in this context are untenable and must fall to be rejected. Afgri's
approach to the matter affects the issue of costs, as recorded below .
THE LAW ON EXPERT EVIDENCE IN CIVIL LITIGATION
[18] Afgri relies on the expert testimony of Mr. Vorster, a "Remote
Sensing and Value-Added Products Technologist," attached to its answering
affidavit. I consider the expert evidence of Mr Vorster against the following
21 See: South Africa Post Office v De Lacy 2009 (5) SA 255 (SCA) at (37]

duties and responsibilities of expert witnesses recorded by Wallis JA in
Price WaterHouseCoopers22at [97) - [99):
"Opinion evidence is admissible ,,when the Court can receive "appreciable help"
from that witness on the particular issue". That will be when:
"... by reason of their special knowledge and skill, they are better qualified to
draw inferences than the trier of fact. There are some subjects upon which the
court is usually quite incapable of forming an opinion unassisted, and others
upon which it could come to some sort of independent conclusion, but the help of
an expert would be useful."
As to the nature of an expert's opinion, in the same case, Wessels JA said:
". . . an expert's opinion represents his reasoned conclusion based on certain
facts or data, which are either common cause, or established by his own
evidence or that of some other competent witness. Except possibly where it is
not controverted, an expert's bald statement of his opinion is not of any real
assistance. Proper evaluation of the opinion can only be undertaken if the
process of reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert.''
[98] Courts in this and other jurisdictions have experienced problems with expert
witnesses, sometimes unflatteringly described as «hired guns". In The lkarian
Reefer Cresswell J set out certain duties that an expert witness should observe
when giving evidence. Pertinent to the evidence of Mr Collett in this case are the
following:
"The duties and responsibilities of expert witnesses in civil cases include the
following:
1. Expert evidence presented to the Court should be and should be seen to be
the independent product of the expert uninfluenced as to form or content by the
exigencies of litigation ...
2. An expert witness should provide independent assistance to the Court by way
of objective unbiased opinion in relation to matters within his expertise . . . An

of objective unbiased opinion in relation to matters within his expertise . . . An
expert witness in the High Court should never assume the role of advocate.
3. An expert witness should state the facts or assumptions on which his opinion
is based. He should not omit to consider material facts wh ich detract from his
concluded opinion ....
22 Price Waterhouse Coopers Inc and Others v National Potato Co -Operative Ltd and another
ZASCA 2 (4 March 2015) para [97]

132
4. An expert witness should make it clear when a particular question or issue
falls outside his expertise."
These principles echo the point made by Diemont JA in Stock that:
"An expert ... must be made to understand that he is there to assist the Court. If
he is to be helpful he must be neutral. The evidence of such a witness is of little
value where he, or she, is partisan and consistently asserts the cause of the
party who calls him. I may add that when it comes to assessing the credibility of
such a witness, this Court can test his reasoning and is accordingly to that extent
in as good a position as the trial Court was."
[99] Lastly when dealing with the approach to an expert witness I have found
helpful the following passage from the judgment of Justice Marie St-Pierre in
Widdrington:
"Legal principles and tools to assess credibility and reliability
[326) "Before any weight can be given to an expert's opinion, the facts upon
which the opinion is based must be found to existn
[327] ''As long as there is some admissible evidence on which the expert's
testimony is based it cannot be ignored; but it follows that the more an expert
relies on facts not in evidence, the weight given to his opinion will diminish".
[328] An opinion based on facts not in evidence has no value for the Court.
[329] With respect to its probative value, the testimony of an expert is considered
in the same manner as the testimony of an ordinary witness. The Court is not
bound by the expert witness"s opinion.
{330] An expert witness"s objectivity and the credibility of his opinions may be
called into question, namely, where he or she:
• accepts to perform his or her mandate in a restricted manner;
• presents a product influenced as to form or content by the exigencies of
litigation;
• shows a lack of independence or a bias;
• has an interest in the outcome of the litigation, either because of a relationship
with the party that retained his or her services or otherwise;

with the party that retained his or her services or otherwise;
• advocates the position of the party that retained his or her services; or
• selectively examines only the evidence that supports his or her conclusions or
accepts to examine only the evidence provided by the party that retained his or
her services."

l 133
THE EXPERT EVIDENCE OF MR VORSTER
[19) The report of Mr Vorster (annexure M3 at F118 of the Caselines
Record) is dated November 2023 and records under the heading "Introduction"
the following:
"1 Introduction
1. 1 The South African National Space Agency (SANSA) as represented by
Willem Adriaan Vorster (Remote Sensing Specialist, with specific field of
expertise in satellite image processing) was request to assist in a field
irrigation investigation by means of using available satellite imagery and
satellite data.
1. 2 The incident, which is the subject matter of this water irrigation
investigation, occurred on the farm Modderfontein 236, port;ons 08
(Daybreak Farms), in the Sundra area in Mpumalanga, and the specific
request was to establish with the aid of satellite imagery whether the area
was irrigate within the qualifying periods between October 1996 and I
October 1998."
[20] In paragraph 1.3 of his affidavit Mr Vorster states, with reference to
his report of November 2023 that :
"31. I confirm that I conducted a satellite image-based assessment and analysis
of field i"igation and water bodies on the Remaining Extent of Portion 10,
Portion 8 and on Portion 35 (a Portion of Portion 9) of the Farm
Modderfontein 236, Registration Division IR, titled Assessment and
Analysis of Field Irrigation Near Sundra that is dated November 2023."
APPLICATION OF THE LAW TO THE EXPERT EVIDENCE PRESENTED
BYAFGRI

I J34
[21] In my view the evidence of Mr Vorster is of very little if any evidentiary
value. He is not to be blamed for that. It is from his affidavit and report not clear
that his report and affidavit have been formulated while mindful of his obligations
mentioned in the quoted passages from PriceWaterhouseCoopers. Alternative
methods of disposal of Afgri's wastewater are not considered by Mr Vorster. He
was clear1y not briefed or mandated to provide any such expert testimony as
interpreter of satellite images. I accept Mr Vorster's testimony that not more than
3.9 hectares of the 170 hectares of Portion 35 becomes encroached by water
from the pan. That amounts to just over 2% of the surface of Portion 35 which
begs the question: How much m ore surface must the applicants be expected to
sacrifice for the convenience and financial benefit of Afgri? I am of the view it
should not be compelled to sacrifice any.
AFGR!'S SUBMISSIONS WITH REFERENCE TO THE NATIONAL WATER
ACT 36 OF 1998 AND ITS COMMERCIAL STATUS
[22] In its answering affidavit Afgri raises a plethora of legislative
provisions. Afgri submits with reference to those provisions that "When following
the triad of language, context and purpose . . .. it is submitted that the pans are
not water resources for the purposes of the NWA. " The order granted below is
granted m indful of the interpretation offered and submitted by Afgri.
[23] Afgri refers to its shareholding, its participation in the provision of food
and its contractual obligations to supply meat to retailers and the enormity of the
investment in the facility on Portion 8. I am mindful of those allegations but am
of the view that it does not outweigh the right of the applicants to exercise their
ownership of Portion 35 and their rights attendant thereto.

135
THE REQUIREMENTS FOR A FINAL INTERDICT
[24) An order for permanent cessation of the wastewater pumping may
only be granted if it is shown that the applicants have a clear right according to
substantive law shown on the evidence to exist on a balance of probability; that
Afgri commits an act of interference on a continuing basis; and the absence of
any alternative legal remedy available to the applicants.23
JUDIDICAL DISCRETION
[25] Once an applicant has satisfied the requirements for final interdict,
judicial discretion only exists on a limited aspect, namely the availability of an
adequate alternative remedy. If a final interdict should issue, a court has a
discretion to order suspension or to order deferment of the interdict where the
circumstances of the case outweighs an applicant's right to immediate cessation
of the infringement.24 The evidence before me shows that the applicants have no
adequate or alternative remedy other than the interdictory relief they seek.
Sections 24 and 27 of the Constitution25 and the regulatory remit the concept of
public trusteeship in natural resources imposed over the past decades require, in
my view, that Afgri be afforded two m onths to ensure that its wastewater is
managed and provided for. I impose this deferment, not for the benefit of Afgri,
but for the common good. Afgri has had the benefit and luxury to dispose of its
wastewater for more than a decade free of charge. Afgri's right to pump its
wastewater to the pan on Portion 10 since termination of the permission it had,
23 LAW SA Vol 43 par 505 -506
24 Laskey and Another v Showzone CC and Others 2007 (2) SA 48 (C) at [40] - [47)
25 The Constitution of the Republic of South Africa of 1996 read with section 3 of the National
Water Act, 36 of 1998

with the resulted encroachment on Portion 35, continued for a period just shy of
two years. Under the circumstances and should Afgri for any reason whatsoever
be unable to dispose of its wastewater within the two month period mentioned in
the executive part of this judgment, the interdictory relief shall take effect as
stated in the order.
COSTS
[26] Afgri's opposition to the application is unreasonable, spurious and at
variance with w hat one would expect from a reasonable neighbour who had
been enjoying and still enjoys the opportunity to dispose of its wastewater
yielded by a commercial activity. In my view judicial displeasure should be
expressed with the appropriate cost order and the applicants should be
indemnified in respect of the costs they had to incur to obtain the relief on the
appropriate scale of costs. I, therefore, exercise my discretion in this regard to
award the costs of this application to the applicants on a scale as between
attorney and client.
THE ORDER
Under the circumstances I make the following order:
1. The respondent is interdicted and restrained from pump ing water from
the wastewater treatment plant and pond on the property known as
Portion 8 of the Farm Modderfontein 236, Reg istration Division IR,
Mpumalanga Province to the first applicant's property known as
Portion 35 (a portion of portion 9) of the farm Modderfontein, 236,
Registration Division I.R., Mpumalanga Province.

f agE' 137
2. The order set out in paragraph 1 above shall become effective after 2
months from date of this order to allow the respondent time to arrange
its affairs to dispose of the wastewater it produces on its property
mentioned in paragraph 1 above.
3. The respondent shall pay the applicants' costs on a scale as between
attorney and client.
HF JACOBS
ACTING J DG OF THE HIGH COURT
G DIVISION, PRETORIA
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by e-mail. The date and time for hand-down is on
the 7TH of MARCH 2025 at 14h00.
APPEARANCES
Counsel for applicant:
Attorneys for applicant:
Adv PL Uys
Email: lafras@lulaw.co.za
VFV Attorneys
Email: hein@vfv.co.za

Counsel for respondent:
Attorneys for respondent:
Adv JP Van Den Berg SC
Email: advjp1@gmail.com
Adv JHA Saunders
Email: advjhas@gkchambers.co.za
VZLR .Attorneys
Email: wian@vzlr.co.za
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