REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 087/2003
Reportable
In the matter between:
IMPALA WATER USERS ASSOCIATION APPELLANT
and
PIET ERASMUS LOURENS N.O
AND 20 OTHER APPPLICANTS RESPONDENT
CORAM
: HOWIE P, FARLAM, BRAND JJA, JONES et
VAN HEERDEN AJJA
HEARD: 24 FEBRUARY 2004
DELIVERED: 26 MARCH 2004
SUMMARY: Water – National Water Act 36 of 1998 - Mandament van
Spolie – whether rights of water users who were entitled to rights under previous
Water Act 54 of 1956 capable of protection by mandament of spolie when
restricted by water supplier purportedly in terms of s 59(3) of Act 36 of 1998 –
incidence of onus to prove outstanding water use charges were legally payable.
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
2
[1] This is an appeal from a spo liation order granted by Van der
Reyden J, sitting in the Nat al Provincial Division of the High Court, in
which the appellant was ordered to remove locks, chains and welding
works from identified sluices (which allowed the flow of water to farms
owned by the respondents) and to restore, ante omnia, the flow of water
from the water canals of the Bivane-P aris dam, through the said sluices,
to reservoirs on the respondents’ farms.
[2] Prior to its declaration on 12 January 2001 as a water user
association in terms of s 98(6)( a) of the National Wa ter Act 36 of 1998
(to which I shall refer in what follows as ‘the Act’), the appellant was
known as the Impala Water Irrigation Board.
[3] The respondents are all farmers and water users within the area of
operation of the appellant. They cultiv ate sugar cane on their farms. They
were all formerly members and water users of the appellant when it was
an irrigation board and had applie d for and obtained registration of a
certain number of hectares for irrigation in terms of a schedule of rateable
areas prepared in terms of s 88 of the Water Act 54 of 1956, which was
repealed by the Act. When the appella nt became a water user association,
all the respondents automatically, in terms of paragr aph 7.2 a of its
constitution, became members.
[4] A dispute has arisen between th e respondents and the appellant as
to the legality of a portion of the wat er charge raised and assessed by the
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appellant on its members. The portion in question related to the costs of
financing the construction of the Pa ris-Bivane dam. The appellant has
sought to recover from its members an amount of R800-00 per hectare
per annum as a dam fi nancing component of the water charge. The
respondents contend that they ar e obliged to pay only R240-00 per
hectare per annum and that the appella nt cannot legally seek to recover
the balance, ie, R560-00 per hectare per annum, from them.
[5] The appellant sought to recover the portion of the water charge
from some of the responde nts by suing them in the Pongola magistrate’s
court for the amounts allegedly due. These actions were subsequently
withdrawn, whereupon the appellant is sued summons against certain of
the respondents in the Natal Provincial Division of the High Court for the
same amounts. After appearance to defend had been entered, the
appellant sought summary judgment on its claims. Summary judgment
was, however, refused with the consent of the appellant and the
respondent defendants were given leave to defend.
[6] Before the actions were heard the appellant decided to exercise its
powers under s 59(3)(b) of the Act and to restrict the flow of water to the
respondents by locking the sluices, wh ich it did on 1 Fe bruary 2003. On
the following day the respondents brought a spoliation application against
the appellant, which was granted on 14 February 2003.
[7] Section 59 (3) and (4) of the Act provides as follows:
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‘(3) If a water use charge is not paid-
(a) interest is payable during the period of default at a rate determined
from time to time by the Minister, with the concurrence of the Minister of
Finance, by notice in the Gazette; and
(b) the supply of water to the water user from a waterwork or the
authorization to use water may be restricted or suspended until the charges,
together with interest, have been paid.
(4) A person must be given an opportunity to make representations within a
reasonable period on any proposed restriction or suspension before the
restriction or suspension is imposed.’
[8] Before purporting to act in terms of s 59(3) the appellant afforded
the respondents the op portunity in terms of s 59(4) of making
representations to it as to why the supply of water to their properties
should not be restricted. It is of course clear that the procedure set forth in
ss (4) is not intended as a hearing on liability at which the water user is
required to satisfy the water supplier that nothing is owed. Such liability
must be either admitted or judicially established. This hearing is intended
to be premised on the water charge being unquestionably due, and to
elicit explanation why the restriction should not be imposed.
[9] In his judgment the learned judge held, following the judgment of
this Court in Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1)
SA 508 (A), that the re spondents had been exerci sing rights to water
without disturbance and th at the exercise of those rights fell within the
concept of quasi-possessio. He then proceeded to consider whether the
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deprivation by the appellant of the respondents’ ‘possession’ had taken
place illegally. He accep ted the argument advanced before him by
counsel for the respondents that it was fo r the appellant to show that its
actions in interfering with the flow of water to the respondents’ properties
fell strictly within the four corners of the authorising statute and that, in
order to be able to invoke its power s under section 59(3 ) of the Act, the
appellant had to show that the portion of the water charge withheld by the
respondents was lawfully owing and payable. In th is regard he followed
the decision of this Court in George Municipality v Vena and Another
1989 (2) SA 263 (A), in which it was held that a person who has
disturbed another in his possession of property without recourse to law in
purported exercise of a statutory power to do so bears the onus of
showing that his actions were covere d by the statute relied on. Pointing
out that it was common cause that ther e was a dispute between the parties
as to whether the appellant could legally seek to recover the balance of
the dam financing component from them , he held that the appellant had
failed to discharge the onus of sh owing that it could rely on the
provisions of section 59(3).
[10] Counsel for the appellant contended that the judgment of the court
a quo was incorrect in several respects: viz
(1) because the respondents were never in possession of a right to use
the water in the sense required for the mandament van spolie;
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(2) because the appellant was covered by the powers conferred upon
it by section 59(3) of the Ac t, either because the onus rested upon
the respondents to prove that th e appellant’s actions were not
covered by section 59(3) and were accordingly unlawful and they
had failed to discharge that onus or because the appellant, if it bore
the onus, had discharged it.
[11] In support of the first conten tion counsel for the appellant
submitted that the court a quo erred in holding that the decision of this
Court in Bon Quelle, supra, applied to the facts of this case. This was
because, so it was argued, the rights to receive water on which the
respondents relied were me re personal rights resulting from the contract
between the appellant and each of the members concerned. In terms of
this contract, each member became a member of the appellant and
acquired the privileges of member ship, especially the privilege of
receiving the water in exchange for the performance of membership
obligations which include payment of the charges raised by the appellant.
Relying on the recent deci sion of this Court in Telkom SA Ltd v Xsinet
(Pty) Ltd 2003 (5) SA 309 (SCA), counsel su bmitted that in this case
spoliation proceedings had been misused in order to enforce a contractual
right and not, as was the case in Bon Quelle, supra, a servitutal right.
[12] Counsel contended further that th e contract between the appellant
and each member in terms of whic h the appellant undertook to supply
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water was similar in all material r espects to common contracts for the
supply of water, electricity and tele phone services to ordinary domestic
users throughout the country. Counsel also argued, again relying on the
Xsinet decision, that, as the appellant’ s servants did not enter on the
respondents’ premises to restrict th e water supply, no spoliation had
occurred.
[13] Counsel for the appellant subm itted further that if the Bon Quelle
decision was not distinguishable, then th e finding that an applicant for an
order for the restoration of quasi-possessio of a right need not prove the
objective existence of the right in question was incorrect.
[14] In regard to the incidence of the onus to prove whether the action
complained was covered by th e terms of section 59(3)( b), counsel for the
appellant contended that the decision of this Court in George
Municipality v Vena and Another, supra, was incorrect and was in
conflict with an earlier decision of this Court, Sillo v Naude 1929 AD 21,
in which it was held, so counsel submitted, that it was for an applicant for
a spoliation order to prove that th e acts by which he was deprived of
possession were unlawful. Acco rding to counsel, the Sillo decision,
which was not mentioned in the later George Municipality case, was to be
preferred.
[15] Finally, as indicated, counsel cont ended that, if the onus to prove
that the action taken by the appellant was covered by the Act rested on
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the appellant, it had in any event succeeded in discharging that onus.
[16] Counsel for the respondents argued, on the other hand, that the
respondents had shown that they or the entities th ey represented had been
deprived of rights capable of prot ection by spoliation proceedings and
that it was incorrect to describe such rights merely as contractual rights. It
was also contended that, even tho ugh the appellant’s servants had not
entered upon the respondents’ premises , they had, by locking the sluices
and preventing water from flowing on to the properties concerned,
interfered with the ri ghts of quasi-possession on which the respondents
relied. It was submitted further that no basis had been established for
overruling this Court’s decision in Bon Quelle.
[17] In regard to the onus, counsel for the responde nts submitted that
the George Municipality decision was correct and should be followed and
that the appellant had not succeeded in discharging the onus of showing
that its actions were lawful. In this regard strong relia nce was placed on
the fact that the enforceability of the balance of the dam financing
component of the water charge is currently the subject of defended
actions between the appellant and some of the responde nts in the court a
quo and that the appellant had agreed in each of those actions to the grant
of an order giving the respondents concerned leave to defend.
[18] The first question to be consider ed, in my view, is whether the
rights on which the respondents re lied were merely contractual and
9
whether the Xsinet decision can be applied. In my opinion, it is not
correct to say that the rights in quest ion were merely contractual. It will
be recalled that the respondents or the entities they represent were all
entitled to rights under the previous Water Act 54 of 1956, which rights
were registered in terms of the schedul e prepared under section 88 of that
Act. These rights were clearly not mere ly personal rights arising from a
contract. The individual respondents and the entities represented by the
other respondents all automatically, in terms of paragraph 7.2 a of the
appellant’s constitution, became founding members of the appellant. It is
clear therefore that the rights to wat er which belonged to the individual
respondents and the entities represente d by the other resp ondents, in so
far as they were replaced by or, pe rhaps more accurately put, subsumed
into rights under the Act, cannot be described as mere personal rights
resulting from contracts with the appe llant. It follows that, on that ground
alone, the Xsinet decision, on which the appellant ’s counsel relied, is not
applicable.
[19] The facts of this case also differ in another material respect from
those in the Xsinet case. There it was held (at paragraphs [12] and [13])
that the respondents’ use of the ba ndwidth and telephone services in
question did not constitute an incident of its use of the premises which it
occupied, with the result that the disconnection by Telkom of the
telephone lines to Xsinet’s telephone and bandwidth systems did not
10
constitute interference with Xsinet’s possession of its equipment. In the
present case, however, the water rights interfered with were linked to and
registered in respect of a certain portion of each farm used for the
cultivation of sugar cane, which was dependent on the supply of the water
forming the subject matter of the right. The use of the water was
accordingly an incident of possessi on of each farm which was, in my
view, interfered with by the actions of the appellant’s servants. Indeed in
the Xsinet decision itself it was said at the end of paragra ph [12] (at 314
C-D):
‘Xsinet happened to use the services at its premises, but this cannot be described as an
incident of possession in the same way as the use of water or electricity installations
may in certain circumstances be an incident of occupation of residential premises.’
In my view, unless the Bon Quelle decision is to be overturned, the
respondents have clearly established th at the rights to water enjoyed by
the individual respondents and the entities represented by the other
respondents were capable of protection by the mandament van spolie.
[20] The decision of this Court in Bon Quelle was carefully reasoned in
a scholarly judgment in which the prev ious case law and many, if not all,
of the relevant old authorities were canvassed. No new light on the matter
was thrown by the argument of c ounsel for the appellant and I am
satisfied that it cannot be held th at the decision in question was clearly
wrong.
[21] I am accordingly of the view that the court a quo correctly held that
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rights capable of protection by spolia tion proceedings had been interfered
with in the present case.
[22] It is accordingly necessary to cons ider whether such interference is
to be regarded as lawful so that no spoliation can be he ld to have taken
place. In this regard the first questi on to be discussed is whether, as the
court a quo found, the onus rested on the appellant to show that its
actions were covered by the provisi ons of section 59(3). In the George
Municipality case, supra (at 271E), Milne JA expressly approved a
statement by Friedman J in the court of first instance in that case, which
read as follows:
‘It is a fundamental principle of our law that a person may not take the law into his
own hands and a statute should be so interpre ted that it interferes as little as possible
with this principle.’
Applying this principle, I agree with the judge a quo that section 59(3)
can only be invoked when the wa ter use charge the non-payment of
which triggers the power to restrict the supply of water to a user is legally
payable. Indeed, I did not understand counsel for the appellant to dispute
this proposition.
[23] It is clear in my view that, unless it is open to us to depart from the
ratio in the George Municipality case (either because it is in conflict with
the decision of this Court in Sillo v Naude and we consider the contrary
view to be the better view in the circ umstances or because, if there is no
such conflict we think it clearly wrong), we must hold that the onus rested
12
on the appellant.
[24] I cannot agree that the George Municipality decision is in conflict
with the ratio in the Sillo case. It is true that De Villiers ACJ said in the
latter case (at 26) that an applicant for a spoliation order has to show
‘not only that he was in possession at the time of ejection (which has not been
denied), but also that instead of invoking the proper machinery of the Court, the
respondent took the law into his own hands and by force, or by other unlawful means,
wrongfully and unlawfully deprived him . . . of possession by sending the cattle to the
pound.’
As the last portion of the passage I have quoted indicates, the alleged act
of spoliation was the sending of the a ggrieved party’s cattle to the pound.
[25] The facts in Sillo’s case were that the respondent, who was a
farmer, summarily dismissed the appe llant, a farm labourer who had the
right under his contract of service to graze his stock upon the
respondent’s farm. The appellant refused to leave, whereupon the
respondent impounded his stock which, as it was put in the judgment,
were ‘running in their accustomed place’ on the farm. The appellant then
brought a spoliation application agai nst the respondent. He failed in the
provincial division and his appeal to this Court was dismissed. The basis
for the decision appears in the fo llowing passage (at 26-7) in the
judgment:
‘. . . by setting the machinery of the Pound Ordinance into motion the respondent
cannot, in any aspect of the matter, be said to have taken the law into his own hands.
13
In sending the cattle to the pound he merely invoked the aid of the law of the land in
his dispute with the appellant. If he has unl awfully impounded the cattle, he is liable
in damages to the owner (sec. 49 of Ordinance 3 of 1912, O.F.S), and he would be so
liable if, when the issues in dispute between the parties come to be tried, it is found
that the cattle were not trespassing, for according to sec. 18(1) of the Ordinance only
cattle found trespassing may be sent to th e pound. The decision made by himself that
the cattle were trespassing, and the fact of acting upon that decision by sending the
cattle to the pound, does not constitute taking the law into his own hands. The Pound
Ordinance does not provide any machinery to determine there and then whether or not
cattle are trespassing, and the owner of the la nd must of necessity, therefore, make up
his mind whether they are or not, taking the risk of being mulcted in damages if he
comes to a wrong conclusion. But to hold that under such circumstances he is taking
the law into his own hands would be to lay down the absurd proposition that in every
case where the owner of cattle, at the time of trespass, chooses to deny that the cattle
are trespassing he would be entitled to a mandament van spolie if his cattle are then
impounded.’
As he had not taken the law into hi s own hands he was held not to be
guilty of spoliation. No such consider ations apply here. It cannot be said
that, by locking the sluices, the appe llant merely ‘invoked the aid of the
law of the land in [its] dispute’ with the respondents. No necessity, such
as was found to be present in a situ ation where a land owner finds cattle
on his farm which he thinks are trespassing, existed in this case.
[26] It follows that the statement by De Villiers ACJ earlier in his
judgment that an applicant for a spo liation order has to show that the
deprivation of which he complains was wrongful and unlawful was obiter
14
and affords no basis for this Court to depart from what was held in the
George Municipality case, unless we are satisfied that it was clearly
wrong. Counsel for the appellant did no t seek to persuade us that the
George Municipality decision was clearly wrong on this point and I am,
on the contrary, satisfied that it is correct. The considerations set out in
the judgment as to self-help are in any event buttressed by the provisions
of section 34 of the Constitution, which reads as follows:
‘Everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing befo re a court or, where appropriate, another
independent and impartial forum.’
[27] In the circumstances it is clear that the onus to show that the
portion of the water use charges not paid was legally due rested on the
appellant. I cannot hold that it wa s discharged. As counsel for the
respondents (correctly in my view) submitted, in view of the fact that the
question as to whether the unpaid porti on of water use charge is legally
due by the respondents is the subject of other proceedings in the court a
quo and the appellant consented in its summary judgment application to
an order giving the respondents conc erned leave to defend, that question
must be regarded for present purposes as an open one.
[28] It follows from what I have said that the appeal cannot succeed.
[29] The following order is made:
The appeal is dismissed with costs, including those occasioned by the
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employment of two counsel.
……………..
IG FARLAM
JUDGE OF APPEAL
CONCURRING
HOWIE P
BRAND JA
JONES AJA
VAN HEERDEN AJA